The Supreme Court dismissed Mr Makhlouf’s appeal against a decision to deport him following convictions for violence and later offences. Although the best interests of his two children had to be treated as a primary consideration, the Secretary of State already had enough material to assess his article 8 claim and theirs. She was not required to make further inquiries when the evidence showed that he had no real relationship with either child.
Mr Makhlouf lived in Northern Ireland. He had two children from different relationships.
He received a prison sentence after an assault and had further convictions. The Home Secretary considered deportation in light of his offending.
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He had no ongoing contact with either child when the deportation decision was made.
The decision to deport
The Home Secretary sought information about his circumstances and the children. There had already been family proceedings concerning contact.
On 5 October 2012 the Secretary of State decided to deport him under section 3(5)(a) of the Immigration Act 1971 because his 2005 conviction made deportation conducive to the public good. His article 8 claim was refused because it did not meet paragraphs 399 and 399A of the Immigration Rules. The reasons letter considered his convictions, the long absence of contact, paragraph 396’s presumption that the public interest requires deportation, and whether removal would breach the European Convention. It accepted that removal would interfere with article 8 and might not serve the children’s best interests, but said that the interference pursued the prevention of disorder and crime and the protection of others. Referring to section 55 of the Borders, Citizenship and Immigration Act 2009 and ZH (Tanzania), it found no genuine and subsisting parental relationship with either child. He had ties to Tunisia, where his parents lived and where he had lived until 1997, and no exceptional circumstances outweighed the public interest.
The appeals below
The First-tier Tribunal dismissed his appeal. It found that the rules had been properly applied and was not persuaded that he had produced credible evidence of contact proceedings or of any input into the children’s lives. The Upper Tribunal agreed that errors—including treating the case as automatic deportation under section 32(5) of the UK Borders Act 2007—would not have changed the result. It was conceded that there were no ongoing contact proceedings.
The Court of Appeal in Northern Ireland dismissed the appeal. Morgan LCJ held that section 32 had played no part, because paragraph 396 had been considered. The reasons letter supported the conclusion that deportation was conducive to the public good. Delay did not assist him, given his later offending and the continued lack of contact. The family court had already investigated the children’s welfare, and further investigation was unnecessary. Leave was refused on a ground alleging insufficient justification for interfering with the children’s article 8 rights.
The Supreme Court’s reasoning
For Mr Makhlouf, it was argued that article 8 can protect a relationship which might still develop, that his children’s rights required independent investigation and social-welfare reports, and that the Immigration Rules were not a complete assessment of article 8 or of best interests as a primary consideration. Reliance was placed on authority that family life does not end merely because contact has been lost, and on the need to consider a child’s dual ethnicity and cultural identity.
Lord Kerr, with whom Lord Neuberger, Lady Hale, Lord Wilson, Lord Reed, Lord Hughes and Lord Thomas agreed, accepted that children’s best interests require separate consideration, particularly where they do not coincide with the parent’s interests, and that a dual ethnic background must be examined. Those interests are a primary consideration. Whether the Immigration Rules can themselves conduct a sufficient article 8 assessment had been discussed in the associated case of Ali, but did not arise here. The issue was whether the Secretary of State had enough material.
The evidence showed that Mr Makhlouf had no relationship with either child and that their lives had been wholly untouched by his being their father. A possible future relationship had to be considered, but the material allowed only the conclusion that it was unlikely in the extreme. Later information that the son’s mother might reconsider contact had not been before the Secretary of State. His offending after 2005, even where connected with contact disputes, showed a propensity to offend if he did not get his way. He was not entitled to yet further inquiries. Lord Kerr agreed with the Court of Appeal that the children did not require the disruption of another investigation after a court with jurisdiction over their welfare had already made important decisions.
Lady Hale agreed that the appeal should be dismissed. The duty to treat best interests as a primary consideration, separately from adult interests and the public interest, comes from section 55 and, through section 6 of the Human Rights Act 1998 and article 8, from article 3.1 of the United Nations Convention on the Rights of the Child. Children are rights-holders in their own right, but their rights are not a passport to another person’s right to remain. Here, she considered, the appellant was using the children in that way.
Lady Hale accepted that further inquiries might be necessary in another case. Here the information about the absence of contact and the earlier family proceedings was sufficient.
Verdict: The Court unanimously dismissed Mr Makhlouf’s appeal. The Home Secretary had enough information to consider the interests of the two children and had no duty on these facts to make further inquiries.
Source: Makhlouf v Secretary of State for the Home Department [2016] UKSC 59
