Hirenkumar Bhikhabhai Patel v The Secretary of State for the Home Department

1. This is a decision to whose writing each member of the panel has contributed.

2. A citizen of India aged 37, the appellant has permission to challenge the decision of Judge Welsh of the First-tier Tribunal sent on 30 April 2019 dismissing his appeal against the decisions made by the respondent on 4 December 2018 to make a deportation order and on 6 December 2018 to refuse his human rights claim.

3. The appellant came to the UK in 2008 with entry clearance as a spouse. In November 2013 he was granted indefinite leave to remain. He is a foreign criminal by virtue of the fact that on 26 January 2016 he was convicted of three counts of conspiring to conceal/disguise/convert/transfer/remove criminal property and one count of proceeds of crime money laundering – failure to disclose in regulated sector. On 20 February 2017 he was sentenced to three years and six months’ imprisonment. In his sentencing remarks, the judge noted that: “[m]oney laundering is integral to the serious criminality: in this case drug dealing.” The appellant’s wife, who also originates from India, came to the UK in 2006 as a student. She and the appellant have a son born in April 2013. On 6 January 2016 she and her son were naturalised as British citizens. As an infant the child suffered from macrocephaly and thoracolumbar scoliosis.

4. The judge found the appellant and his wife to be credible and reliable witnesses.

5. The judge noted the legal requirements applicable to the appellant’s case as being those set out in section 117 C of the Nationality, Immigration and Asylum Act 2002 and the broadly corresponding provisions of the Immigration Rules at paragraphs 398, 399 and 399A.

6. Section 117 C, headed, “Article 8: additional considerations in cases involving foreign criminals”, provides: “(1) The deportation of foreign criminals is in the public interest. (2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. (3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies. (4) Exception 1 applies where— (a) C has been lawfully resident in the United Kingdom for most of C's life, (b) C is socially and culturally integrated in the United Kingdom, and (c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported. (5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh. (6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. (7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”

7. The relevant immigration rules are paragraphs 398, 399 and 399A.

8. Paragraph 398 is as follows: “Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and (a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; (b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or (c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.”

9. Paragraph 399 of the Rules applies where paragraph 398 (b) or (c) is engaged, if - “(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and (i) the child is a British Citizen; or (ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case (a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and (b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or (b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and (i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and (ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and (iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.”

10. Paragraph 399A provides: "This paragraph applies where paragraph 398(b) or (c) applies if – (a) the person has been lawfully resident in the UK for most of his life; and (b) he is socially and culturally integrated in the UK; and (c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported."

11. With reference to section 117 C(3)-(5), the judge noted that, as the appellant had not lawfully been in the UK for most of his life, he could not meet Exception 1. The judge then turned to Exception 2, noting that the appellant’s representative before her (Mr Malik) had conceded that if the requirements of Exception 2 are not met, the appeal must fail because on the facts of the case there were not “very compelling circumstances”. In relation to Exception 2, the judge concluded that it would not be unduly harsh for the appellant’s wife either to relocate to India or (if she chose) to remain in the UK with her son if the appellant were deported. As regards the appellant’s child, the judge found that even though it is in his best interests to be with both parents in the UK, it would not be unduly harsh for the child to relocate to India nor unduly harsh for him to remain in the UK.

12. The appellant’s grounds have two main components, it being submitted (1) that the judge applied an unduly stringent approach to the public interest, as evidenced by his reference in paragraph 48 to there being “a strong public interest in the Appellant’s removal”; and (2) that the judge’s treatment of the best interests of the child failed to take into account in assessing the ‘unduly harsh’ requirements that the son was a British citizen. In relation to ground (1), it was submitted that the Supreme Court in Hesham Ali [2016] UKSC 60 had made clear, that whilst great weight ought to be applied to the public interest in deportation, that weight was not a fixity. In relation to ground (2), it was highlighted that the judge accepted that: the appellant and his wife would not be able to afford a private education for their son on return to India, which would mean he would be taught in Gujarati, which he does not speak; that the son suffers from infantile scoliosis and requires yearly checkups; and that the child’s school and friendship networks are “sources of happiness and stability” for the child that would be fractured by the move. It was argued that at no point in this assessment did the judge treat “the British child’s best interests as a primary consideration”.

13. Both parties produced skeleton arguments, but it is convenient to refer to these by reference to the oral submissions.

14. At the hearing, Ms Akinbolu reiterated the point made in her skeleton argument as regards ground (1) that the public interest was not a fixity and that factors such as the risk of reoffending, the length of the sentence and the conduct since the offence committed were also relevant to that assessment. She said that the judge made no reference to the low risk of reoffending presented by the appellant.

15. As regards ground (2), Ms Akinbolu submitted that the judge had failed to take into account that for the child to relocate to India would entail the loss of his rights as a British citizen, including his right to a British education and to grow up knowing what it means to be British and to establish social connections with other British citizen children in his formative years. Ms Akinbolu accepted that the judge had said at paragraph 33 that she had taken the fact that the child was a British citizen into account, but in fact she had compartmentalised her consideration so as to ignore it. Although it was not foreshadowed in the grounds upon which permission to appeal had been granted, Ms Akinbolu asserted that it was also relevant, drawing on the Zambrano ( Zambrano ( Ruiz Zambrano v Office national de l’emploi ( Case C-34/09 ) ) line of cases, in particular [2012] QB 265 CS ( Case C-304/14,Secretary of State for the Home Department v CS ) , that the loss of a child’s rights were not justifiable by reference to something done by the father. The “compelled to leave” criterion set out in Zambrano was relevant when looking at the second limb relating to whether it was unduly harsh on the child to stay without his father. The CJEU in cases such as CS had emphasised the need for there to be “genuine enjoyment of the substance of the rights and benefits attaching to Union citizenship”. Indeed what it said was stronger than that.

16. Ms Akinbolu’s skeleton argument outlined that the judge’s finding that it would not be unduly harsh for the child to relocate to India paid no attention to his British citizenship. Given his mother’s unequivocal statement that she would have to go with her husband should he be deported, a statement supported by the medical evidence of her ongoing depression, that finding was material.

17. Ms Akinbolu was asked by the bench what significance, if any, should be attached to the child’s possession of Indian nationality or at least his Indian heritage. Ms Akinbolu submitted that the child would always have access to India but in this case the cost of facilitating this would be that his father was deported. Given his youth, the child can only access enjoyment of the substance of the rights attaching to British citizenship via his parents. The child was actually enjoying the rights and benefits of his British nationality and to compel him to leave with his father and mother would be to visit on him the sins of his father, contrary to ZH(Tanzania ) [2011] 2 AC 166 and Zoumbas [2013] UKSC 34 . It would be unduly harsh.

18. Ms Akinbolu accepted that it could be harsher to compel a child to leave if in the country of destination the child had no citizenship rights, but that did not mean compulsion was not unduly harsh in this case. Exception 2 did not require a consideration of compulsion. There was also a difference between the two limbs of the ‘unduly harsh’ test. When looking at the effect on the child were he or she not to stay, one has to consider the loss of the rights of British citizenship and Union citizenship that that entails. In reply to a question from the bench as to whether in her view it made any difference when considering the ‘unduly harsh’ issue that a British child was (at one end of the spectrum) very young or (at the other end of the spectrum), nearly 18, she agreed that the age of the child and how long he or she had lived in the UK required fact-sensitive treatment. The lack of opportunity for a very young child to continue to be able to enjoy the rights and benefits of British citizenship could be very material.

19. Mr Lindsay submitted that the appellant’s ground (1) was unmeritorious because the fact that the public interest in deportation is strong is uncontentious. It includes a concept of deterrence as well as public confidence in the system.

20. As regards ground (2), Mr Lindsay recalled that the respondent’s rule 24 response acknowledged that there was an error of form on the part of the judge in not explicitly considering the relevance of the child’s British nationality in the section of the determination dealing with the question of whether it would be unduly harsh for the child to relocate to India, but this error was not material to the outcome of the decision and the appellant’s appeal should be rejected accordingly. Read as a whole, the judge’s findings were sustainable. There is a sound finding that the child can stay in the UK without his father and thus the issue of going to India is not relevant. There was a proper consideration of the child’s best interests and also of whether the appellant’s deportation would cause undue hardship. It is a safe inference that the judge had in mind the relevance of the child being British throughout her assessment. The respondent’s skeleton argument had stated that “the unduly harsh assessment is in substance a best interests assessment” and that the respondent’s position as set out in the refusal decision was that the child’s status as a British citizen will not be altered in the event of relocation to India.

21. In response to the question the bench had asked Ms Akinbolu about whether it made any difference when considering the ‘unduly harsh’ issue that the British child was very young or nearly 18, Mr Lindsay agreed it was fact-sensitive but it could not be right to equate mere opportunity to grow up as British with rights accrued by, say, living in the UK for seventeen years. In the appellant’s case, it was obvious what were the relevant rights and benefits being enjoyed on the one hand and on the other hand those standing to be enjoyed potentially. “Potential cannot be stronger than the actual enjoyment of a right”. There was no requirement for the judge to set out what the rights and benefits were comparatively.

22. Mr Lindsay said that the fact that the child in question has a dual heritage was relevant because it cannot be assumed that life abroad is inferior to life here. There was no evidence before the Tribunal that dual nationality was not permitted and hence there was nothing for the judge to consider under this rubric.

23. Mr Lindsay emphasised the point that there was an unchallenged finding that it would not be unduly harsh for the child to remain in the UK. Hence any error on the part of the judge in relation to this issue was not material because the requirements set out in paragraph 399(ii) (a)-(b) are conjunctive.

24. By reference to the Zambrano line of cases, including Dereci ( Dereci v Bundesministerium für Inneres ( Case C-256/11 ) and [2012] All ER (EC) 373 CS , Mr Lindsay submitted that ‘compelled to leave’ was clearly a high threshold. As was clear from Secretary of State for the Home Department v VM (Jamaica ) at [57] and [64] in particular, a case could not succeed unless there was a compulsion to leave the jurisdiction. In the appellant’s case, indications of compulsion were clearly lacking. The judge considered the medical evidence relating to both the child and the mother and was entitled to conclude that there would be no shortfall in the child’s care should the family be split. There was no “entire dependency” on the relevant parent – the appellant. [2017] EWCA Civ 255

25. Ms Akinbolu submitted that VM should be distinguished because the starting point in that case was that the exceptions did not apply. So the only issue was whether there were exceptional circumstances outside the Rules. She queried whether Mr Lindsay’s contention that actual enjoyment always outweighed potential enjoyment of the rights and benefits of nationality could be right. It was clear from the British naturalisation criteria that the Secretary of State accepts that British citizenship is more than mere birth in the country (in the case of a child born here) but comprises a set of values. Applicants have to prove knowledge and understanding of these values. Recent case law

26. We refer to a number of key decisions below. Since we heard this case, there have been further cases of relevance, in particular: (on the ‘unduly harsh’ issues in the context of deportation) Secretary of State for the Home Department v KF (Nigeria) [2019] EWCA Civ 2051 (22 November 2019) and CI(Nigeria ) [2019] EWCA Civ 2027 , 22 November 2019; (on the public interest issue) Akinyemi v The Secretary of State for the Home Department [2019] EWCA Civ 2098 (04 December 2019); and (on the Zambrano issues) Patel (Appellant) v Secretary of State for the Home Department (Respondent) Secretary of State for the Home Department (Respondent) v Shah (Appellant) [2019] UKSC 59 . We did not consider it necessary to ask the parties to provide further submissions as to the significance of any of these cases because each reached conclusions broadly in line with pre-existing authority.