Omotunde (best interests- Zambrano applied- Razgar) – Case note

Omotunde(best interests – Zambrano applied – Razgar)Nigeria [2011] UKUT 00247(IAC)

Background

This case was brought by the appellant against a decision for automatic deportation under s 32 of the UK Borders Act 2007. The appellant was a Nigerian national who came to the UK as a visitor in 1991, and was eventually granted indefinite leave to remain in 2002. In 2004 he entered into a relationship which resulted in the birth of his son in 2005. The appellant’s son did not become a British citizen at birth due to s 50 (9) of the British Nationality Act 1981.

In 2008 the appellant was convicted of two counts of conspiracy and transfer of criminal property. He was sentenced to two and a half years imprisonment. During his time in custody the appellant made arrangements for his son through a team of carers. His son attended primary school. The appellant was not in contact with his son’s mother but indicated that she maintained contact with their son through her sister.

The decision letter to deport the appellant rejected his human rights claim. The Home Office appears to have accepted that the appellant was the primary carer of his son but concluded that his son could reasonably be expected to accompany the appellant. His son who was not British was also to be subject to deportation. If he were to remain in the UK, the appellant would be able to maintain his relationship with him using modern means of communication.

First Tier Tribunal

The First Tier Tribunal dismissed the appellant’s appeal.The outcome of an application to register the child as a British citizen was unknown, and in any event it would not in their view be unreasonable for the appellant’s son to accompany him even as a British citizen. There was no evidence to suggest his mother would object to this and in any event she did not currently hold leave to remain. Five days later, the appellant’s son was registered as a British citizen.

Upper Tribunal

The lower tribunal did not have the benefit of the guidance in ZH Tanzania and as such its examination of the impact of the appellant’s proposed deportation on his son, and its conclusion as to proportionality were both inadequate.

The best interests of the child

Applying the decision of the Supreme Court in ZH Tanzania the tribunal noted the importance that attached to nationality as an indicator of where the child’s best interests lie. The child’s nationality was not merely an aspect of what his best interests were, but may also afford him a right to reside in his own country.

The Tribunal held that as a result of the decision in Ruiz Zambrano national courts must engage with the question of whether removal of a particular parent will ‘deprive [the child] of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen’.

Proportionality

In this context, the Article 8 assessment questions set out in Razgar should be tailored as follows placing the assessment of necessity in the final question dependent on the outcome of proportionality and a fair balance, rather than as part of the identification of the legitimate aim:

1. Is there family life enjoyed between the appellant and a minor child?

2. Would deportation of the parent interfere with the enjoyment of that family life?

3. Is such an interference in accordance with the law?

4. Is such an interference in pursuit of a legitimate aim?

 5. Is deportation necessary, proportionate and a fair balance between the rights to respect for the family life of the appellant and the child and the particular public interest in question?

Conclusion

 The tribunal concluded that if the appellant were deported and the child remained in the UK he would lose his dominant carer. If the child accompanied his father he would lose his home, school, regular contact with his mother and aunt and the benefits of British citizenship. The tribunal assessed the weight attached to the seriousness of the appellant’s offending and the proportionality of a deterrent effect. However, it considered that it was in the child’s best interests and in his rights as a British citizen, and a citizen of the European Union to enjoy the support of his father and continue to be brought up in the UK. Therefore deportation of the appellant was not proportionate. Although the Tribunal made clear that the principle of the best interests of a child is not a trump card, this case shows just how important it can be.

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

One response to “Omotunde (best interests- Zambrano applied- Razgar) – Case note

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: