The Court of Appeal’s decision in Secretary of State for the Home Department v VM (Jamaica) [2017] EWCA Civ 255 was published on 11 April 2017. Among other matters, the appeal concerned the effect of the EU rights of children who are British citizens in relation to the proposed deportation of a foreign criminal.
The Upper Tribunal’s decision of SF and others (Guidance, post–2014 Act) Albania [2017] UKUT 00120(IAC) was published on 22 March 2017. The issue was whether because of the nationality of the youngest child( a British citizen), it would be unreasonable to expect that child to leave the United Kingdom with his other family members who had no leave to remain in the UK.
Considered together, these two cases make very interesting reading, however it might be that in light of the decision in VM, the Upper Tribunal may soon need to undertake some “housekeeping duties” in relation to their previous decisions.
THE UPPER TRIBUNAL’S DECISION
Summary facts in SF and others:
All three Appellants were nationals of Albania, a mother and her two young children. They entered the United Kingdom unlawfully some time in 2012. The first Appellant’s husband had come to the UK much earlier. He obtained indefinite leave to remain and subsequently, by false representations as to his nationality or identity or both, obtained a grant of British citizenship. He was serving a sentence of seven and a half years imprisonment for offences connected with people-trafficking. After the appellants arrived in the United Kingdom, the first Appellant gave birth to a further child; that child was born when the child’s father had indefinite leave to remain and as a result the youngest child was a British citizen. The Appellants were, on 29 April 2015, served with notices refusing asylum claims and deciding that they should be removed from the United Kingdom as illegal entrants.
The issue:
What was pursued before the Upper Tribunal was an argument that because of the nationality of the youngest child, it would be unreasonable to expect that British child to leave the United Kingdom; and that that had an impact on the merits of the decision that the Appellants should be removed.
Presenting Officer’s reference to a relevant Home Office Policy Guidance:
The Presenting Officer drew the Upper Tribunal’s attention to a Home Office policy guidance: Immigration Directorate Instruction – Family Migration – Appendix FM, Section 1.0(B) “Family Life as a Partner or Parent and Private Life, 10 year Routes” of August 2015. The guidance was not in force at the date of the decision under appeal, but it was in force at the date of the First-tier Tribunal hearing and decision, and was still in force when the appeal was heard by the Upper Tribunal .
Relevant provisions of the Guidance referred to:
The Upper Tribunal referred to the following provisions of the August 2015 guidance at paragraph 11.2.3: Would it be unreasonable to expect a British Citizen Child to leave the UK? :
“Save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This reflects the European Court of Justice Judgment in Zambrano.
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Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer.
In such cases it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship.
It may, however, be appropriate to refuse to grant leave where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation, if the child could otherwise stay with another parent or alternative primary carer in the UK or in the EU.
The circumstances envisaged could cover amongst others:
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criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules;
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a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules.
In considering whether refusal may be appropriate the decision maker must consider the impact on the child of any separation. If the decision maker is minded to refuse, in circumstances where separation would be the result, this decision should normally be discussed with a senior caseworker and, where appropriate, advice may be sought from the Office of the Children’s Champion on the implications for the welfare of the child, in order to inform the decision.”
Upper Tribunal’s approach and conclusion:
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It was noted that the Presenting Officer very properly accepted that the case was not, from the point of view of the relationship between the first appellant, the mother, and the British citizen child, a case which involved criminality; and this was not a case in which the conduct of the mother or of the other children was such as to give rise to considerations of such weight as to justify separation: but in any event it did not appear that there had been any consideration given to the possibility of the British citizen child staying with another parent or alternative primary care in the EU.
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Although there was said to be a grandmother in the UK, the Upper Tribunal noted that no other details were known; the Secretary of State had not at any stage taken the view that there was an alternative primary carer, and in any event, the result of the decision would be the separation of the youngest child from his siblings and from his mother if they had to return to Albania leaving him in the UK.
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It appeared to the Upper Tribunal inevitable that if the guidance to which the presenting officer drew the Upper Tribunal’s attention had been applied to the present family, at any time after it was published, and on the basis that the youngest child was a British citizen, the conclusion would have been that the appellants should have been granted a period of leave in order to enable the British citizen child to remain in the United Kingdom with them.
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The Upper Tribunal considered that the terms of the guidance were an important source of the Secretary of State’s view of what is to be regarded as reasonable in the circumstances, and it was important for the Tribunal at both levels to make decisions which are, as far as possible, consistent with decisions made in other areas of the process of immigration control.
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The Upper Tribunal stated that it was only possible for Tribunals to make decisions on matters such as reasonableness consistently with those that are being made in favour of individuals by the Secretary of State if the Tribunal applies similar or identical processes to those employed by the Secretary of State.
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In the Upper Tribunal’s judgement, therefore, the way forward was to conclude that, this was a case where it would be unreasonable to expect the youngest child to leave the United Kingdom.
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The Upper Tribunal set aside the decision of the First-tier Tribunal and substituted a decision allowing the appeals of all three appellants on that ground. It was considered that the period of leave was a matter to be determined by the Secretary of State.
THE COURT OF APPEAL’S DECISION
Summary facts in Secretary of State for the Home Department v VM (Jamaica) [2017] EWCA Civ 255:
VM, a citizen of Jamaica had been convicted of serious crimes in the UK and therefore qualified as a foreign criminal for the purposes of the immigration regime. He married a British woman, KB, with whom he had two children, KSM and KDM, who were also British citizens. VM was also step-father to KB’s son from a previous relationship, AB, who also was a British citizen.
At some point, appeal proceedings against deportation having begun, the First Tier Tribunal(FTT) allowed VM’s appeal. The Secretary of State appealed the decision: permission to appeal was granted.
The Upper Tribunal held that the 2015 FTT decision was affected by errors of law, in particular because the FTT had not taken into account the rights of the children under EU law, as British and EU citizens, which in the view of the Upper Tribunal meant that they could not be expected to leave the UK and go to Jamaica with VM. The Upper Tribunal was noted to have explained its view regarding the errors on the part of the FTT in the 2015 FTT decision as follows:
“16. First, a series of cases after Sanade [Sanade v Secretary of State for the Home Department [2012] UKUT 48 (IAC)] has confirmed that a carer cannot be removed back to his country where there are British citizen children who are going to suffer to such an extent that the British citizen child or children would also have to leave. This would not be logically possible. It is not logically possible here because the judge accepted that ‘it would be unduly harsh, having regard to the independent psychiatric report and social worker evidence and in particular the children’s mental health and behavioural issues which would worsen if separated from the Appellant’ (paragraph 21). The children could not stay in the UK if the Appellant was deported. Their condition would worsen. This was accepted by the judge. They would have to accompany the Appellant back to Jamaica. That would infringe the rights of British citizen children and violate the fundamental precepts of EU law.
17.Second, in this particular case, a concession was made by the Respondent Secretary of State that it would not be reasonable to expect any of the children here to leave the United Kingdom. It was also conceded that there is in existence genuine and subsisting relationships with each child that the Appellant himself enjoyed. Judge Pooler had [in the 2014 FTT decision] concluded that it would not be in the best interests of the children were they not to be in the care of both parents in the United Kingdom .”
The Upper Tribunal proceeded to remake the decision on VM’s appeal against the Secretary of State’s decision, and allowed the appeal for the reasons set out above.
The Court of Appeal’s criticisms of Sanade v Secretary of State for the Home Department [2012] UKUT 48 (IAC)]:
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The Court of Appeal noted that although the Upper Tribunal did not cite EU authority directly, it had in mind the principle of EU law identified by the CJEU in Case C-34/09 Ruiz Zambrano [2011] ECR I-0000 and Case C-256/11 Dereci [2011] ECR I-11315, based on rights of EU citizenship under Article 20 TFEU, which were both referred to in Sanade.
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However, in the Court of Appeal’s judgment, the Upper Tribunal in VM’s case misunderstood the effect of the EU law principle. It seemed to have been misled by an ill-advised concession made by the Secretary of State in Sanade, and accepted by the Upper Tribunal in that case as correct, that where a person enjoys family life as an engaged parent with a child who is a British citizen, then in terms of Article 8 it is not possible to argue that a third country national’s removal may be proportionate on the footing that the family unit could move together to a country outside the EU: see Sanade at [93]-[95]. In other words, in that case it was conceded, in effect, that a British child’s location in the UK was to be treated as a fixed point, and the Article 8 analysis had to be moulded in the light of that.
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It was observed by the Court of Appeal in VM, that those representing the Secretary of State had urged the Court to analyse the position afresh, free of the straitjacket of the concession made in Sanade. The Court of Appeal considered that it was right to do so, since in the Court’s view the concession made in Sanade skewed the position and obscured the proper analysis.
The Court of Appeal’s reasoning and conclusion:
The reasoning followed by the Court in VM was by reference to specific paragraphs in Dereci [2011] ECR I-11315:
“63 As nationals of a Member State, family members of the applicants in the main proceedings enjoy the status of Union citizens under art.20(1) TFEU and may therefore rely on the rights pertaining to that status, including against their Member State of origin (see McCarthy [2011] 3 CMLR 10 at [48]).
64 On this basis, the Court has held that art.20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status (see Ruiz Zambrano [2011] 2 CMLR 46 at [42]).
65 Indeed, in the case leading to that judgment, the question arose as to whether a refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside and a refusal to grant such a person a work permit have such an effect. The Court considered in particular that such a refusal would lead to a situation where those children, who are citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union (see Ruiz Zambrano [2011] 2 CMLR 46 at [43] and [44]).
66 It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of EU citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.
67 That criterion is specific in character inasmuch as it relates to situations in which, although subordinate legislation on the right of residence of third country nationals is not applicable, a right of residence may not, exceptionally, be refused to a third country national, who is a family member of a Member State national, as the effectiveness of Union citizenship enjoyed by that national would otherwise be undermined.
68 Consequently, the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.”
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The Court of Appeal noted that the CJEU in Dereci ruled that the fact that the family wished to stay together in Austria and otherwise faced a difficult choice of either leaving Austria (and the EU) together in order to preserve the family unit or splitting up (with the mother and children remaining in Austria, as they were entitled to do) was not sufficient to generate a right under EU law for the father to remain in Austria, parasitic upon the rights of his wife or children as EU citizens.
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The Court of Appeal considered that on this reasoning, VM had no claim to remain in the UK as a result of the citizenship rights in EU law of his wife and children. If he was deported to Jamaica, KB and the children (with KB deciding for them) would face a difficult choice whether to relocate there with him or remain in the UK without him. But the fact that they would be confronted with that choice, and might in practice feel compelled to go with him, did not engage EU rights in a way which created a right under EU law for VM to remain in the UK.
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It was noted that as the Court of Appeal held in FZ (China) v Secretary of State for the Home Department [2015] EWCA Civ 550, following Dereci and the decision in O, S and L (at paras. [42]-[44] of the Advocate General’s Opinion and para. [56] of the judgment), “the critical question is whether there is an entire dependency of the relevant child on the person who is refused a residence permit or who is being deported”.
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It was considered that in VM’s case there was no “entire dependency” of AB, KSM and KDM on VM, in the requisite sense, because they could remain in the UK with their mother, KB, who as a British citizen herself had a right to be in the UK.
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The Court of Appeal considered that the analysis in FZ (China) was consistent with the guidance given by the Supreme Court in respect of the application of Dereci in R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11, at [61]-[67]. The Supreme Court distinguished the situation in Ruiz Zambrano – which concerned the refusal of a right of residence and a work permit in a member state to the third-country parents of dependent minor children who were citizens of that state, which had “the inevitable consequence” that the parents would have to leave the EU and the children would have to accompany their parents – from that in Dereci, in which “the same relationship of complete dependence” between the EU citizen (the wife and children in the Dereci case) and the third country national (Mr Dereci) was not present, where the argument based on Article 20 TFEU and the EU citizenship rights of the wife and children was rejected: see [64]-[67].
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The Court of Appeal stated that in FZ (China), as in VM’s case, a third country national was married to a British wife by whom he had a British daughter, who was a minor dependent on her parents. Although the wife would face a difficult choice if her husband were deported, whether to go with him to keep the family together or to remain in the UK with her daughter, that situation did not engage the principle in Ruiz Zambrano so as to generate a right for the husband to be allowed to remain. The wife might feel compelled by circumstances to leave with her husband and take their daughter with her, but she was not compelled by law to do so. The wife could choose to remain. There was therefore no “entire dependency” of the daughter on the person being deported, namely the father.
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In the Court of Appeal’s view, the reasoning in FZ (China) covered VM’s case and showed that, contrary to the view of the Upper Tribunal, the possibility that KB and the children would choose to go to Jamaica with VM did not “violate the fundamental precepts of EU law.”
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It followed that the presence of the children in the UK did not, as a result of the operation of EU law, have to be treated as a fixed point for the purposes of the proportionality analysis under Article 8. It was legitimate for the FTT in their 2015 decision to consider for the purposes of its Article 8 proportionality analysis whether the family unit could be expected to take the option, which EU law allows the Secretary of State to present to KB and the children, of relocating to Jamaica with VM.
CONCLUSION
Having regard to the Upper Tribunal’s decision in SF and others, no specific reference was made to Sanade. Only the Guidance was considered to govern the situation but of course the relevant provisions of the guidance also referred to the Zambrano case. What the Upper Tribunal in SF and others ultimately did therefore, in short, was to rubber stamp the Secretary of State ‘s guidance and allow the Appellant’s appeals.
The Upper Tribunal however made it clear at paragraph 12 of their decision that “on occasion, perhaps where it has more information than the Secretary of State had or might have had, or perhaps if a case is exceptional, the Tribunal may find a reason for departing from such guidance, however where there is clear guidance which covers a case where an assessment has to be made, and where the guidance clearly demonstrates what the outcome of the assessment would have been made by the Secretary of State, it would, be the normal practice for the Tribunal to take such guidance into account and to apply it in assessing the same consideration in a case that came before it”.
The August 2015 guidance, also currently states at paragraph 11.2.3:
“The decision maker must consult the following guidance when assessing cases involving criminality:
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Criminality Guidance in ECHR Cases (internal)
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Criminality Guidance in ECHR Cases (external)
………………….
It may, however, be appropriate to refuse to grant leave where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation, if the child could otherwise stay with another parent or alternative primary carer in the UK or in the EU.
The circumstances envisaged could cover amongst others:
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criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules;
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a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules”.
It is noteworthy that as referred to in SF and others, the relevant provisions of the guidance begin with “Save in cases involving criminality…” The Upper Tribunal was therefore on alert that criminality cases were not caught by the provisions of the guidance but the reference at paragraph 12 of their decision to “the Tribunal may find a reason for departing from such guidance” seems clear and consistent with the August 2015 guidance. The guidance is therefore not to be applied by Tribunal Judges without critical analysis even in cases which do not involve criminality.
If attempting at all to reconcile SF and others and VM , paragraphs 55 to 57 of the Court of Appeal’s judgement might be relevant:
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The Court of Appeal emphasized that facts in the case before them were that the father, VM, was a third country national facing deportation; the mother, KB, was a British citizen who could remain in the UK if she so chose; the three dependent young children were British citizens who enjoyed an active family life with both the father and the mother, but could remain in the UK if the mother chose to stay here.
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In these circumstances, the deportation of the father did not automatically entail that the children would have to leave the UK (and EU) with him, on the footing that there would be no family member with a legal right to be in the UK who would be able to care for them in the UK. The Court of Appeal made it clear that the situation was therefore different from that in Ruiz Zambrano.
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Rather than a legal impossibility of remaining in the UK, the family would face a difficult practical choice whether to separate (with the mother and children remaining in the UK, in which case there would be no infringement of their EU citizenship rights) or to leave and go to Jamaica as a family unit. The Court of Appeal made it clear that this was the situation addressed in Dereci and in domestic authority
At paragraph 54 of their judgement, the Court of Appeal stated that they were beginning with relevant principles of EU law derived from the following cases:
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Ruiz Zambrano; Dereci; Cases C-356/11 and C.357/11 O, S and L v Maahanmuuttovirasto [2013] Fam 203;
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Case C-165/14 Rendon Marin and Case C-304/14 Secretary of State for the Home Department v CS.
but made it clear that “For present purposes, the most important of these judgments is that in Dereci, dealing with the first question referred to the CJEU in that case at paras. [37]-[74]”.
The decision in VM was therefore heavily influenced by the principles arising out of Dereci.
The facts in SF and others were different to those in VM, however in light of the Court of Appeal’s recent judgement, it may now be necessary for the Upper Tribunal to revisit their previous decisions such as Sanade and also perhaps SF and others so as to carefully untangle matters.