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EU Charter of Fundamental Rights creates freestanding rights in immigration law says tribunal

Abdul (section 55 – Article 24(3) Charter : Nigeria) [2016] UKUT 106 (IAC) is a case involving a Nigerian national aged 41 who had resided in the UK for 25 years and who had two British daughters aged 11 and 13. He had acquired a permanent right of residence under EU law. He was a serial fraudster with a number of convictions, the most recent resulting in a sentence of imprisonment of 4.5 years. This triggered deportation action, and under EU law the Home Office needed to show that there were “serious grounds of public policy or public security” justifying the deportation.

An independent social worker report had been commissioned on the impact of deportation on the two daughters. This report strongly suggested (unsurprisingly) that removal of their father from their lives would have a very negative effect on the lives and life chances of the daughters.

The First-tier Tribunal is criticised by President McCloskey for paying only “lip service” to the expert report on the best interests of the children. The failure to make any proper finding amounted to an error of law.

The President then goes on to find that the Charter of Fundamental Rights creates free standing rights. In particular, Article 24, entitled “Rights of the Child,” provides:

(1) Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

(2) In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

(3) Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless this is contrary to his or her interests.

The President concludes that Article 24(3) creates a free standing right. It is not, however, an absolute right. The President quotes from Deticek v Sgueglia C-403/09:

It follows that a measure which prevents the maintenance on a regular basis of a personal relationship and direct contact with both parents can be justified only by another interest of the child of such importance that it takes priority over the interest underlying that fundamental right.

How this sits with Amirteymour (FM write up: No human rights in EEA appeals says Upper Tribunal) is a mystery, given that Article 7 of the Charter is in identical terms to Article 8 of the European Convention on Human Rights. How is a judge supposed to not deal with human rights issues in an EU free movement law appeal when EU law is to interlaced with human rights law? Just take a look at the questions referred in NA v Secretary of State for the Home Department for another example. The hearing in that case took place in February so judgment is expected in the first half of this year.

Finally, the official headnote to Abdul:

(i) There is no hierarchy of weight or importance in the various considerations recited in regulation 21(6) of the EEA Regulations. The weight to be attributed to each factor will vary according to the fact sensitive context of the individual case.

(ii) Where it is contended that the decision maker and/or the First-tier Tribunal (FtT) has acted in contravention of section 55 of the Borders, Citizenship and Immigration Act 2009, the Upper Tribunal will scrutinise the degree of engagement with all material evidence and, in particular, will search for clear findings in the decision of the FtT of what the best interests of any affected child are.

(iii) Article 24(3) of the EU Charter of Fundamental Rights creates a free standing right (although not absolute).

(iv) Where this right is engaged, a failure by the decision maker and/or the FtT to acknowledge it and to decide accordingly may constitute a material error of law.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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