He said it so sympathetically, it made it all the worse:
“This is a fast moving area of law, we understand that, but you might want to take a look at a case we reported last week.”
That was last month now, the speaker was President Mr Justice Blake and the case law ignoramus was me. In my defence, it was only the Tuesday after the case was reported on the Friday. Of all the people to be caught out by not having read and digested a recent case… never mind.
The case is Sanade and others (British children - Zambrano – Dereci)  UKUT 00048 (IAC) and it seems to me, now that I have read it and ruminated a little, that it is a game changer in the way that deportation cases are argued and considered. Essentially, the main message is that deportation cases should be about whether the crime is so serious that a family should be divided, not about whether it is reasonable to expect the British based family to relocate to the destination country.
This proposition would come as no surprise to most members of the public, politicians and anti human rights leader writers. It is startlingly obvious, really. It is also very far from the first case in which this obvious proposition has been articulated. See Lee v SSHD  EWCA Civ 348, for example.
Why, then, was the emphasis in many immigration tribunal hearings and deportations on the reasonableness of relocation by the British family members? I would suggest two reasons. The first is that the real human beings (Home Office officials, lawyers and judges are mainly human, after all) actually having to deal with the other real human beings in deportation cases prefer to shy away from the reality of splitting a family and depriving a child of a parent. The public, politicians and journalists have the luxury of pontificating on such matters without meeting the individuals concerned. It was convenient to pretend that depriving a child of his or her parent was a matter of choice by the other parent rather than a direct consequence of a discretionary deportation decision.
The second is, more prosaically, that the Home Office argued this in refusal letters and at hearings, partly for the first reason and partly on the basis of the dubious and now discredited ‘insurmountable obstacles’ test, which provided a convenient but erroneous legal basis for such arguments.
So, how serious does an offence need to be in order to justify severing a family? Of course, it all depends on the circumstances. The ‘automatic’ (it is no such thing) deportation regime introduced by the UK Borders Act 2007 provides that a deportation order must always be made against a person sentenced to imprisonment of 12 months or more. The Home Office would like to deport all such people and experience suggests they will pursue deportation no matter what the other circumstances and will always seek permission to appeal if they lose at first instance. It is as if Paul Dacre is looking over their shoulders…
In Sanade the tribunal make plain that this is not right, Article 8 does provide an exception to the 12 month rule and the statutory scheme (never mind the jurisprudence) must mean that there will be such exceptions. Further, there is no additional ‘exceptionality’ test to be applied to the Article 8 assessment, it is simply to be evaluated on ordinary Article 8 principles.
Those principles include the following:
- Deportation will normally be about the prevention of disorder or crime but may also raise the economic well being of the country.
- Risk of reoffending is not a necessary precursor to deportation, however.
- Persistent and/or very serious conduct by an individual may justify an interference with an established family life.
- Supply and importation of Class A drugs is considered very serious, but even then family life might outweigh the factors in favour of deportation, as in the Amrollahi v Denmark  ECHR 522 case.
- Knowledge of precarious immigration status by a spouse reduces the weight to be attached to family life, but this principle cannot be applied to children.
- Use of fraud to enter and remain reduces the weight to be attached to that individual’s interests.
- In some cases there may be very little in the way of obstacles to relocation and in such cases ‘immigration action may hardly be an interference with family life at all and very little by way justification would be required to enforce the ordinary scheme of the state’s immigration control regime’.
- In other cases relocation will be in practice impossible and interference with family life may be disproportionate. This includes all cases involving a British family member, as discussed below.
- The best interests of a child are a primary consideration but ‘preventing crime by deporting individuals in cases of particular seriousness would also be a legitimate aim that could outweigh the best interests of children, particularly when combined with other aspects of the public interest’.
Usefully, the tribunal reminds everyone that the principles in deportation cases come from the Grand Chamber decisions in Boultif, Uner and Maslov, not the more esoteric Strasbourg judgments some lawyers and judges regularly seem to cite.
Lastly, and importantly, the President reconsiders his obiter comments in Omotunde (best interests – Zambrano applied – Razgar) Nigeria  UKUT 247 (IAC) (see relevant FM posts here) to the effect that Zambrano rights might not be enforceable where there is a public interest in deporting the foreign national parent or carer.
At paragraph 95 the President then finds as follows regarding Zambrano and British citizenship:
This means that where the child or indeed the remaining spouse is a British citizen and therefore a citizen of the European Union, it is not possible to require them to relocate outside of the European Union or to submit that it would be reasonable for them to do so. The case serves to emphasise the importance of nationality already identified in the decision of the Supreme Court in ZH (Tanzania). If interference with the family life is to be justified, it can only be on the basis that the conduct of the person to be removed gives rise to considerations of such weight as to justify separation.
This certainly does form part of the ratio of the determination.
I’m told an appeal is being pursued by at least one of the parties.