Case No: C5/2012/0053
Neutral Citation Number: [2013] EWCA Civ 26
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
SENIOR IMMIGRATION JUDGE MACLEMAN
IA/11045/2011
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/01/2013
Before :

LORD JUSTICE PILL
LORD JUSTICE DAVIS
and
MR JUSTICE WARREN
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Between :

	(1)	LH (NIGERIA)
(2)	HH (NIGERIA)	
Appellants	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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MR MANJIT GILL QC and MR SHASHI JAISRI (instructed by Messrs Jackson and Canter) for the First Appellant.
MR MANJIT GILL QC and MR RAJESH RAI (instructed by Messrs Jackson and Canter) for the Second Appellant.
MS LISA BUSCH (instructed by Treasury Solicitors) for the Respondent.

Hearing date: 16th January 2013
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Judgment
Lord Justice Davis: 
Introduction
1.	The second appellant, who was born on 11th June 1994, is the son of the first appellant.
2.	By determination promulgated on 24th November 2011 the Upper Tribunal dismissed an appeal from a prior determination of the First-tier Tribunal upholding decisions of the respondent Secretary of State of 14th March 2011 that each of the appellants be deported.  The appellants, with permission granted by Black LJ after an oral hearing, challenge the determination of the Upper Tribunal.
3.	The principal issues raised are whether insufficient consideration was given to the best interests of the second appellant (a child at the relevant times) and the consequential impact of such insufficient consideration (if there was any) on the proper outcome of the appeal of the first appellant. I will call the first appellant LH and the second appellant HH.
4.	In granting permission in both cases, Black LJ stated “Without the son’s appeal I would not have dreamt of giving permission to the father to appeal.  His proposed appeal on its own is unmeritorious….”.  At an earlier stage, Sir Stephen Sedley, in referring the application for permission to an oral hearing, had indicated the view that “the son’s more meritorious case has been used as leverage to protect the father”.  Success on the appeal of LH is undoubtedly contingent on success of the appeal of HH, given the circumstances I will come on to relate.
5.	LH was represented before us by Mr Manjit Gill QC leading Mr Jaisri.  HH was represented by Mr Manjit Gill QC leading Mr Rai.  In the tribunal hearings below Mr Jaisri had represented both appellants.  The Secretary of State was represented before us by Ms Busch, who did not appear below.
Background Facts
6.	The background facts can be relatively shortly stated for present purposes.
7.	LH is a citizen of Nigeria, born on 1st January 1970.  At some stage (the First-tier Tribunal panel doubted LH’s evidence on dates) LH came to the United Kingdom.  In March 2006 he applied for indefinite leave to remain, submitting false documents for the purpose.  His application was refused on 22nd August 2008.  He was informed of his liability to removal; the documents could not be served, however, and thereafter he failed to comply with reporting requirements.
8.	On 19th May 2009 LH was detained during an enforcement visit at a cleaning company in London.  The documents were then served on him.  Further representations were made but he was sent notice of refusal of leave to remain on 13th January 2010.  He did not challenge that.
9.	On 12th April 2010 LH was convicted, on his plea of guilt, at Manchester Crown Court of offences of conspiracy to assist in unlawful immigration and knowingly possessing or obtaining false identification documents with intent.  He was sentenced to a total of 20 months’ imprisonment.  The sentencing remarks show that LH had planned to get round the immigration laws by entering into a sham marriage with an EU citizen (although in the event the authorities intervened before the marriage took place) and using false documents for the purpose.
10.	In the light of that conviction, on 14th March 2011 the Secretary of State made a deportation order under s.32(5) of the UK Borders Act 2007 (“the 2007 Act”).  On the same day a deportation order was made against HH, then aged 16, as a dependent member of LH’s family, under s.3(5)(b) of the Immigration Act 1971 (“the 1971 Act”).  It was those two decisions which were the subject of appeal.
11.	So far as HH was concerned he, as was found, came to the United Kingdom to live with LH in 2006.  He was the child of a brief relationship of LH with a woman who was a Nigerian citizen and who lived in Nigeria.  The judge rejected LH’s evidence that HH had been born in the United Kingdom and rejected the claim that HH was British.  Prior to 2006, as was found, HH had lived in Nigeria.  The judge was very critical of LH’s evidence on many aspects, finding that he had shown “a serious disregard for the truth”.  However, he found that LH and HH had established family life by living together in the United Kingdom since 2006 (apart from the time when LH was in custody).  The evidence was that HH was of good character, had done well at school and was aiming to attend college; showed great promise in particular as a footballer; and, as was found, generally had settled well in the United Kingdom.  It appeared that HH had coped on his own whilst his father was in prison, albeit with some assistance from friends and relatives.
12.	It was common ground that at all relevant times neither LH nor HH has been lawfully present in the United Kingdom.
13.	It may be observed that following the dismissal of the appeals by the Upper Tribunal and following the grant of permission to appeal by Black LJ, the Secretary of State has, by decision letter dated 6th August 2012, stated that deportation against HH – by now, of course, 18 years old – would not be pursued.  It was stated that he would be granted three years’ discretionary leave to remain.  However the proposed deportation of LH was confirmed, with reasons given.  Mr Gill in his written argument describes the new decision with regard to HH, though welcome, as a “late volte-face” connoting acceptance of the strength of HH’s Article 8 claims.  I do not accept that.  It was understandable and fair for the Secretary of State to reconsider HH’s position once he had reached the age of 18 and so was no longer to be regarded as a dependent child.
14.	For her part, Ms Busch submitted that, because of this change of circumstances, each appeal would be effectively academic.  But even if that is so (a point I discuss further below) the fact is that permission has been granted to both parties and each party has fully prepared and argued its case; and I think this court should consider substantively whether the decision of the Upper Tribunal was wrong.
Statutory Framework
15.	It is not necessary to set out here the provisions of s.3 of the 1971 Act.  Section 32 of the 2007 Act relates to the deportation of criminals.  Subsection (5) provides that the Secretary of State must make a deportation order in respect of a foreign criminal (as defined), subject to s.33.  Section 33(1) and (2) provide as follows:
“(1)  Section 32(4) and (5) –
(a)  do not apply where an exception in this section applies (subject to subsection (7) below), and
(b)  are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).
(2) Exception 1 is where removal of the foreign criminal in pursuance of a deportation order would breach –
(a)   a person’s Convention rights, or
(b) the United Kingdom’s obligations under the Refugee Convention….”
The current appeals are centred on s.33(2)(a).
16.	So far as children are concerned, s.55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) provides, as is only too well known, in the relevant respects as follows:
“55	Duty regarding the welfare of children
(1)	The Secretary of State must make arrangements for ensuring that – 
(a)  the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b)  any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2)    The functions referred to in subsection (1) are –
(a)  any function of the Secretary of State in relation to immigration, asylum or nationality…”
“Children” is defined to mean persons who are under the age of 18.
17.	There are also a number of Immigration Rules which bear on issues of deportation of foreign criminals.  Again, it is not necessary to set them out here.
The proceedings below
18.	The First-tier Tribunal panel recorded the evidence fully.  The panel made findings of fact, including findings strongly adverse to the credibility of LH, in a way which cannot be criticised.  At that stage each of HH and LH – who had filed, and gave, evidence – were represented by Mr Jaisri.  No separate outcome as between the two was suggested: they made common cause and the hearing was on the basis that the appeals, in their result, stood or fell together.  The First-tier Tribunal panel proceeded accordingly.
19.	In assessing the Article 8 considerations, the panel directed itself by reference to R (Razgar) v SSHD [2004] UKHL 27.  It found, as I have said, that there had been family life subsisting between HH and LH since 2006.  In paragraph 42 of its determination the panel noted that HH had only been in the United Kingdom for five years.  It found that the whereabouts of HH’s mother was known (rejecting claims to the contrary).  It further found, among other things, that although HH had settled well in the United Kingdom, there was nothing to indicate that he could not settle as well in Nigeria.  He could attend college there.  There were many opportunities in Lagos, LH’s home city, for a young man of 17 and “there is no reason why [HH] could not accompany [LH] to Nigeria, of which he is a national and had been there, in the panel’s opinion, for the first twelve years of his life”.
20.	The panel then went on to assess LH’s position and found that, bearing in mind the seriousness of the offences and the other circumstances, any interference with LH’s family and private life by reason of deportation was proportionate. In paragraphs 47 and 48 of the determination, the panel then said this:
“47.  In relation to [HH’s] claim, the Panel has determined that [LH] is liable for automatic deportation, as none of the exceptions in Section 33 of the UK Borders Act 2007 apply.  The Panel has considered the factors as required under Paragraph 364 of the Immigration Rules and, having undertaken the balancing exercise required, does not find that there are any exceptional circumstances that will outweigh the public interest for [HH’s] deportation as a member of [LH’s] family nor that it would be contrary to the Refugee Convention or the ECHR.
48.  Finally, the Panel has considered the welfare of [HH] in accordance with s.55 of the 2009 Act.  [HH] has established a family life with the appellant and it would be in his interest for that family life to continue.  The appellant has committed serious crimes but [HH] has no responsibility for the appellant’s behaviour.  The Panel considered that, in spite of the appellant’s criminality, the relationship of de facto father and son is such that a continuation of that relationship would not be prejudicial to [HH] and that on balance, such continuation would be to his benefit.  He is now of an age to form his own independent moral code adopting higher standards than the appellant.  The Panel has concluded that in view of [HH’s] childhood spent in Nigeria and the relatively short time that he has been in the United Kingdom, it would not be unreasonable for him to continue his family life with the appellant in Nigeria.  The Panel has concluded that the public interest requires that the appellant be deported and that in all the circumstances the respondent can take the appellant’s behaviour into account when considering the welfare of [HH] and, having given careful consideration to the matter, find that it would not be detrimental for [HH’s] welfare for him to return to Nigeria.”
The conclusion was then stated that the decisions of the Secretary of State to deport in each case were upheld and the human rights appeals were dismissed.
21.	Permission to appeal to the Upper Tribunal was granted by First-tier Tribunal Judge Easterman on 26th July 2011.  He took the view that it was arguable that there was insufficient consideration of HH’s private life or interests and arguable that there had been a failure to deal with HH’s best interests as a primary consideration such as to be an error of law, and that may have an impact on the decision in relation to LH.
22.	The appeals were heard by Upper Tribunal Judge MacLeman on 24th November 2011.  Again, Mr Jaisri represented both appellants.  Again they made common cause.  This prompted the judge to query the position.  The following is recorded in paragraph 10 of the determination:
“10.  The second appellant will be 18 years of age on 11 June 2012.  I raised with Mr Jaisri the question whether the panel ought to have considered the possibility that the father’s appeal might fail, although his son might stay.  Mr Jaisri said that that was one possibility, but it had not been one the appellants had been prepared to contemplate.  It had not been put forward in submissions, made on the basis of the appellants’ instructions.”
And then this is stated at paragraph 17:
“17.  The starting assumption that the best interests of a child is to remain with a parent may lose some force as the child approaches adulthood, but that was not argued in this case.  Although I raised the question whether there might have been different outcomes in the two appeals, the evidence did not raise any realistic such alternative.  The panel correctly proceeded on the assumption, shared by both parties, that the appellants would stay or go together.  This is therefore not a case which involves the potential breakup of a family unit.”
23.	Two other grounds were disposed of, in a way not challenged before us.  On the remaining ground pursued, the judge noted that one of the questions the panel had to resolve was “whether [HH’s] best interests, which were entitled to primary weight, outweighed the case for deportation of both parties”.  He went on to state that the panel had not been required in law to deal temporally in its determination first with the case of HH, citing the observations of Sedley LJ in Lee [2011 EWCA Civ 348 to the effect that the matter could be approached from either direction, provided both the child’s interests and the case for deportation were properly appraised.  (As to this last point, I might add, reference can now also be made to HH (Italy) [2012] UKSC 25).
24.	The Upper Tribunal judge’s conclusion was to the effect that the two family members were to be removed together.  HH’s best interests in terms of private and family life had been taken into account by the panel as a primary consideration; the challenge raised was no more than disagreement; and there was no material error of law in the panel’s determination.
25.	Since that decision, HH has sought to put in further evidence to the effect that he now proposes to remain in the United Kingdom even if his father were to be removed and seeking to emphasise the hardship that will be caused to him if he is separated from his father.
Submissions
26.	Mr Gill’s submissions on behalf of the appellants were careful and detailed.  But the essence of them comes to this.  He submitted that the panel, in its determination, had not treated the best interests of HH as a primary consideration and that no sufficient regard was had to the principles of ZH (Tanzania) [2011] UKSC 4 or to the provisions of s.55 of the 2009 Act.  On the contrary, he submitted, the panel took as a starting point that LH was to be removed, unless an exception could be made out under s.33 of the 2007 Act; and that caused the panel wrongly then to subordinate the s.55 considerations relating to HH to the matters relating to LH.  He said that “the cart was put before the horse”.  The Upper Tribunal judge was therefore wrong not to find a material error of law.
27.	On one view, Mr Gill’s arguments would in effect suggest the following asserted steps: (1) the best interests of HH required that he be with his father; (2) the best interests of HH required that he be in the United Kingdom; therefore (3) the best interests of HH required that he be with his father in the United Kingdom; therefore (4) the father should remain in the United Kingdom.
28.	As to the point that, both before the First-tier Tribunal and before the Upper Tribunal, the appellants’ case and evidence had been put on the footing that both stayed or went together, Mr Gill said that HH’s appeal was separate from that of his father and it behoved the tribunals to ensure separate consideration and, indeed, representation: and that was so even if the instructions given by both the appellants at the time were that if LH were to be returned to Nigeria HH would go with him.
Disposition
29.	I am in no doubt that the Upper Tribunal judge was justified in concluding that there had been no material error of law in the First-tier Tribunal’s decision.
30.	Mr Gill rightly accepted that the matter had to be looked at in point of substance, not form.  The determination of the panel certainly has to be read as a whole.  The panel had already clearly considered aspects of the best interests of HH in paragraph 42 of the determination.  The word “Finally”, as used at the commencement of paragraph 48, cannot, in my view, fairly be read as though the observations there made were, as it were, by way of a tailpiece which was merely incidental to the prior aspects of the determination.  I can accept that there are some rather elliptical remarks in parts of the immediately preceding paragraph 47.  But the panel then expressly in paragraph 48 had regard to s.55 of the 2009 Act – a section familiar to all concerned and which provisions did not need further setting out in the determination.  The panel was, reading the determination as a whole, plainly bearing in mind the best interests of HH as a primary consideration.
31.	Mr Gill nevertheless objected that consideration of whether it would be reasonable for HH to continue his family life in Nigeria was not conterminous with consideration of his best interests.  But a conclusion on such an issue was called for, given that HH was at that stage saying that he would remain with his father: the position presented was that it was in his best interests to be with his father (family life thereby being preserved) and that was his expressed choice.  Moreover, consideration of such an issue was justified in any event.  At paragraph 29 of her judgment in ZH, Lady Hale had said this:
“29.  Applying, therefore, the approach in the Wan case to the assessment of proportionality under article 8.2, together with the factors identified in Strasbourg, what is encompassed in the ‘best interests of the child’?  As the United Nations High Commission for Refugees says, it broadly means the well-being of the child.  Specifically, as Lord Bingham indicated in EB (Kosovo) [2009] AC 1159, it will involve asking whether it is reasonable to expect the child to live in another country.  Relevant to this will be the level of the child’s integration in this country and the length of absence from the other country; where and with whom the child is to live and the arrangements for looking after the child in the other country; and the strength of the child’s relationships with parents or other family members which will be severed if the child has to move away.”
32.	It was also a feature of Mr Gill’s submissions – albeit courteously put – that both the tribunals and the legal representatives below, however well-intentioned, had been at fault in not ensuring separate representation for LH and HH on their appeals and in not acknowledging that different outcomes for each might indeed arise.  Mr Gill said that it was the duty of the tribunals to ensure that the best interests of those concerned – in particular the child – were properly safeguarded by appropriate representation.  In the present case, I do not accept that.  A joint position was, on instructions, presented.  HH was a well-educated 16 year old, entirely able to articulate his own opinions, and there is nothing whatsoever to suggest that his legal representatives had not properly ascertained HH’s own true wishes and choices.  As Pill LJ observed in the course of argument, Mr Gill’s approach would tend to drive a wedge between father and son in this case.  There can be no criticism of the legal representatives, or tribunals, below in this regard.
33.	As to the present assertion – and assertion is what it is – that the best interests of HH required that he be in the United Kingdom that in any event cannot operate as some kind of trump card.  The matter has to be looked at in the round.  I have to say that aspects of Mr Gill’s arguments seemed implicitly to connote that the (asserted) best interests of HH were to be treated as the primary consideration: not, as the law requires, a primary consideration.  Moreover, as Lady Hale had said in ZH at paragraph 26: 
“As the Federal Court of Australia further explained in Wan v Minister for Immigration and Multicultural Affairs [2001] 107 FCR 133:
‘The tribunal was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its  discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.’
This did not mean (as it would do in other contexts) that identifying their [children’s] best interests would lead inexorably to a decision in conformity with those interests.  Provided that the tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them….”
Precisely so.
34.	I would therefore dismiss the appeals.
Other matters
35.	(1)  Mr Gill asked the court to give some general guidance as to when separate representation is called for in cases of this kind.  I would, for my part, not accept that invitation.  I think generalised pronouncements on such a matter would serve more to hinder than to assist.  In very many cases joint representation will be entirely appropriate.  There may be some cases where it will not be.  The position is fact specific.  The matter should be considered by the legal representatives involved by reference to the circumstances of the case – including, among other considerations, the age of the child – and the nature of the instructions received.  In some cases, the tribunal may wish to check the position.  But all depends on the circumstances.  In this regard there will also be borne in mind Lady Hale’s valuable comments in paragraphs 34 to 37 of ZH about the importance of consulting the children themselves.
36.	(2)  Ms Busch submitted that these appeals were academic.  Mr Gill, fairly and rightly, had accepted that, on his own argument, he could not say that the First-tier Tribunal both should and would inevitably have allowed the appeals of LH and HH had the alleged erroneous approach not been made.  He accepted that, if his argument before us prevailed (and in the event it has not), the matter would need to be remitted for a fresh hearing on the facts.  He having accepted that, Ms Busch then submitted that a fresh hearing would achieve nothing: because at the rehearing matters would, in the ordinary way, fall to be assessed at the date of the rehearing: and the position now is that HH is over the age of 18 and has been granted discretionary leave to remain and, so far as LH is concerned, there would no longer be anything on which LH could, as it were, gain any leverage in reliance on HH’s best interests as a child.
37.	Mr Gill disputed this.  He mounted an elaborate argument to the effect that, at the fresh hearing, the tribunal should or could, as a matter of fairness, have regard to the possibility that the appellants at least might have succeeded here before the First-tier Tribunal had the (alleged) erroneous approach not been adopted.  He referred us to AA (Afghanistan) v SSHD [2007] EWCA Civ 12; R (Rashid) v SSHD [2005] EWCA Civ 744; R (S) v SSHD [2007] EWCA Civ 546 and SL (Vietnam) v SSHD [2010] EWCA Civ 225 in this regard.  None of these authorities, however, seem to me to lend any clear-cut support for Mr Gill’s submissions (indeed they primarily relate to how the Secretary of State, not Tribunal, is to exercise discretion in respect of circumstances of asserted unfairness); and one can see other formidable legal, as well as practical, difficulties in the approach suggested by Mr Gill.  But we did not hear full argument on this and, given our conclusion on the substance of the appeals, it is not necessary or appropriate to express a concluded view on this point.
38.	(3)  Finally, Mr Gill did also hint that LH might seek to challenge the Secretary of State’s latest decision to maintain the deportation of LH, albeit that HH is now an adult and has now been granted discretionary leave to remain.  That is not a matter before us.  I would simply observe, however, that I find it very difficult indeed to see what basis there could be for maintaining any viable challenge to the latest decision of the Secretary of State on the deportation of LH as a foreign criminal.
Conclusion
39.	As indicated above, I would dismiss both appeals.
Mr Justice Warren:
40.	I agree.
Lord Justice Pill
41.	I also agree.