Impact of a foreign criminal's deportation on affected British children

On 16 November 2016, the Supreme Court delivered a unanimous judgement in Makhlouf (Appellant) v Secretary of State for the Home Department (Respondent) (Northern Ireland) UKSC 2015/0092 to dismiss the deportation appeal of a father with two British children. 

The appellant was a citizen of Tunisia who married a UK citizen in Tunisia. His wife became pregnant and returned to the UK to give birth to their daughter. Shortly after birth, the appellant arrived with leave to enter as the spouse of a person settled in the UK. He obtained indefinite leave to remain following expiry of his spouse visa. Less than a month after obtaining settlement, the appellant’s wife reported the couple’s separate to the then UK Border Agency. He enjoyed regular weekly contact with his daughter for over 3 years until this was terminated by his wife on account of differences of opinion in terms of their daughter’s upbringing. He and his wife remained separated without initiating formal divorce proceedings. 

On 24 April 2003, while drunk, Mr Makhlouf attacked two men after an argument about a game of pitch and toss. He pleaded guilty to two offences of assault occasioning grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861, having pleaded not guilty to the more serious offences under section 18 of the same statute, with which he had originally been charged. On 18 April 2005, the Judge handed down concurrent sentences of 39 and nine months’ imprisonment. He was remanded in custody from 24 April 2003 until December 2004 when he was released on bail. At the time of the court’s disposal, the duration of his sentence was already served on remand, so he was not required to return to prison.

Sometime after release, he entered into a new relationship with a UK citizen. His new partner gave birth to their son on 12 May 2006. This relationship also broke down shortly after the birth of their son. The appellant enjoyed contact with his son until sometime in 2010 when contact could not be facilitated due to the onset of depressive illness on part of the appellant. 

In 2007, the appellant initiated formal contact proceedings to see his son. This was granted on an indirect basis. His appeal seeking a grant of direct access was dismissed.

Between 2008 and 2010, the appellant was convicted and sentenced to further offences. On 3 November 2008 he was sentenced to six months’ imprisonment, suspended for two years, for breach of a non-molestation order. On 2 March 2009 he was fined £350 for disorderly behaviour. On 22 February 2010 he was convicted of two sets of offences. The first was for breach of a non-molestation order on 12 October 2009 for which he was sentenced to three months’ imprisonment; the second set of offences related to breach of a non-molestation order on 11 January 2009 for which he was sentenced to six months’ imprisonment, suspended for two years, assaulting a police officer and resisting a police officer on the same date for which he received equivalent concurrent sentences.

On 14 October 2010, the then UK Border Agency wrote to the appellant to inform him that he was being considered as being liable for deportation on the basis of his criminal activities. He was asked to provide reasons as to why he should be allowed to remain in the UK despite his offences which show disregard to the laws of the UK and are contrary to the public interest. This letter contained what is known as “one stop warning” under section 120 of the Nationality, Immigration and Asylum Act 2002 which required him to provide all possible reasons for wishing to remain in the UK.

A series of correspondence was then exchanged between the appellant’s legal representative  and the Secretary of State in respect of his family life. The appellant wished to play a parenting role for his children and to support them in the future. His argument accordingly was that the decision to deport him is a breach of his fundamental right to respect for private and family life. In technical terms, such right is enshrined by Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). He claimed that he was being denied amicable parental contact by the mothers of his children and required some time to initiate formal contact proceedings through the family courts.  

The appellant was convicted of further offences in August 2011. These included disorderly behaviour (for which he was sentenced to five months in prison); attempted criminal damage (for which he received a concurrent sentence of five months’ imprisonment); and resisting a police officer for which he received an equivalent concurrent sentence.

In April 2012, the UKBA sought an update and in the absence of substantive evidence as to contact, issued a liability to deportation notice in May 2012 and a deportation order in October 2012. His lack of contact with both of his children for over 4 years was relied upon in concluding that his deportation would not infringe his right to enjoy his family life under Article 8 ECHR since he had not been a part of their lives for some time.  

The appellant lodged a series of appeals to the First-tier Tribunal, Upper Tribunal and Court of Appeal which were all dismissed. The Supreme Court also unanimously agreed with all previous judgments. The press summary explains pertinent points from the Court’s decision:

Where a decision is taken about the deportation of a foreign criminal who has children residing in the United Kingdom, separate consideration of their best interests is required, especially if they do not converge with those of the parent to be deported and particularly in the case of a child with dual ethnic background. The child’s interests must rank as a primary consideration [40]. 

The question of whether sufficient consideration of the article 8 issues which arise in a particular case can take place through the application of the immigration rules has been thoroughly discussed in the associated case of Ali v Secretary of State for the Home Department [2016] UKSC 60. But the issue in this case is simply whether the Secretary of State was in fact provided with sufficient material on which to make a proper judgment on the article 8 rights of the appellant and his children [41]. 

All the evidence on this issue leads unmistakeably to the conclusion that the appellant did not enjoy any relationship with either of his children and they led lives which were wholly untouched by the circumstance that he was their father. While the possibility of such a relationship developing was a factor to be considered, in this case the material available to the Secretary of State could admit of no conclusion other than it was unlikely in the extreme. The lately produced information that the mother of his son might re-consider contact between them partakes of a last throw of a desperate dice [42]. The Secretary of State was therefore not obliged to make yet further inquiries in relation to the appellant and his children beyond those which had already taken place [44]. 

Lady Hale adds that children must be recognised as rights-holders on their own account and not just as adjuncts to other people’s rights [47]. But that does not mean that their rights are inevitably a passport to another person’s rights. The problem in this case is that it is the appellant who is treating the children as a passport to his own rights, rather than as rights-holders in their own right. His daughter is now 19 and has had no contact with him since she was five [48].

Without a very good reason to the contrary, the Secretary of State is entitled to treat the orders of the family courts as reflecting what is indeed in the best interests of the children concerned. The idea that the Secretary of State should make her own investigation of matters which have already been investigated by the family courts is not only unrealistic, but would also create uncertainty and anxiety for the children. Of course it is good for children, especially children of mixed ethnicity, to have a relationship with both of their parents. But it also good for them to have peace and stability. The daughter is not prevented from establishing a relationship with her father by him living in Tunisia [49]. There was no credible evidence that the appellant had sought contact with his son and nothing to suggest that the appellant has been making a meaningful contribution to his life. He too requires peace and stability and can establish a relationship with his father in future should he wish to do so [50]. 

There is nothing at all to suggest that the best interests of these children require that their father should remain in the United Kingdom. Of course there will be cases where fuller inquiries are warranted or where the best interests of children do outweigh the public interest in deportation or removal, but this is emphatically not one of them [51].