Supreme Court ruling on Foreign Criminals with British Citizen Children
Makhlouf (Appellant) v Secretary of State for the Home Department (Respondent) (Northern Ireland)  UKSC 59
This instant case was an appeal heard in the Supreme Court against an order the deportation of a foreign criminal (the Appellant) who had British citizen children residing in the UK.
BACKGROUND AND CHRONOLOGY
The Appellant was born in Tunisia and married a British Citizen in 1996 in Tunisia. The couple had their first child (a girl) in 1997 in Northern Ireland. A few days after the birth of his daughter, the Appellant joined his family on a spousal visa. A year later he was granted settlement.
In 1999, the Appellant separated from his wife (although they had never divorced).
In 2005, following an altercation, the Appellant was convicted of two counts of assault occasioning grievous bodily harm. He received concurrent sentences of 39 and nine months imprisonment.
Following his release from prison, the Appellant had formed a new relationship from which he had a son born in May 2006. His relationship with his new partner had broken down shortly after the birth of his son.
In 2007, the Appellant commenced proceedings seeking contact with his daughter. In 2008 it was ordered by the Family Court that he be permitted to have indirect contact with his daughter. He had not had any contact with his son since 2010.
Between November 2008 and February 2010, the Appellant was convicted of the following:
1) On 03/11/08 the Appellant was convicted of breaching a non-molestation order
2) On 02/03/09 the Appellant was convicted of disorderly behaviour
3) On 22/02/10 the Appellant was convicted for assaulting a police officer and resisting a police officer.
By way of letter dated 14/10/10, the Secretary of State for the Home Department (SSHD) informed the Appellant that she was considering his liability to deportation. She requested that he provided reasons against his deportation and her letter was accompanied by a “one stop warning”. Following correspondence, instructed solicitors ultimately replied with a letter stating that the Appellant was not in contact with his children and that he was not in a financial position to contribute to their maintenance. Additionally, it indicated that he was being denied contact with his children by their mother and that he had commenced proceedings to re-establish contact with them.
Following a further incident in 2011, the Appellant was convicted to disorderly behaviour, attempted criminal damage and resisting a police officer. He subsequently received three equal concurrent sentences of five months imprisonment.
On 30/05/12, the Secretary of State for the Home Department (“SSHD”) issued a further notice informing the Appellant of his liability to deportation on foot of the Appellant’s convictions in April 2005. Accompanying this notice, the SSHD sought further details of any private and family life the Appellant had in the UK including any marriages or civil partnerships and evidence in relation to children or other dependants with whom he had a relationship. The Appellant was requested to provide a formal statement outlining the reasons why he should be permitted to the UK. No response was received by the SSHD.
On 05/10/12, the SSHD sought the Appellant’s removal via a deportation order and a notice of the decision was served on the Appellant. It outlined his several convictions and alluded to the following: the Appellant was not and had not been in contact with his children for several years; he was not in a relationship and had ties to Tunisia (his parents). He had provided no evidence of contact with his children, demonstrating to the SSHD that he had not have a genuine and subsisting relationship with them.
The Appellant appealed against this decision submitting that his removal from the UK would breach his and his children’s right to respect for private and family life under Article 8 of the European Convention on Human Rights and that the SSHD had failed to sufficiently consider the best interests of his children.
The Appellant’s appeals were dismissed at the First-tier Tribunal, Upper Tribunal and Court of Appeal.
The Supreme Court starting point was that where children are residing in the UK and either of their parents are faced with deportation as a foreign criminal, the child’s interests must rank as primary consideration. Separate consideration of their best interests is required and more so in the case of children with dual ethnicity.
The question of whether the SSHD was in fact provided with sufficient material on which to make a proper judgement on the Article 8 rights of both the Appellant and that of his children was discussed.
The court held that all evidence submitted lead to the incontrovertible conclusion that the Appellant had not enjoyed any relationship with either of his children and that they had led lives without the Appellant having an impact as a father. The court discussed the future possibility of such a relationship but the SSHD submitted that upon the material available, this finding was unlikely in the extreme. Although there was recent evidence suggesting that the mother of the Appellant’s son might re-consider contact between them, the court took the view that this was “a last throw of a desperate dice”.
The court further discussed the risk of the Appellant’s re-offending. Taking into account his behaviour following his conviction in 2005, it was found not to be in the Appellant’s favour.
In view of the above, the court dismissed this appeal and it was held that there was nothing to suggest that the best interest of his children require that their father should have remain in the UK.
Lady Hale added that the distinguishable fact in this appeal was that the Appellant was perceived to be treating his children as a passport to his own rights. His daughter was aged 19 and had no contact with him since she was five. She held that the SSHD is entitled to treat orders of the family courts as reflecting what is in the best interests of the children concerned and that any further investigation by the SSHD would cause uncertainty and anxiety for the children. Additionally, she commented that although it is good for children (especially those of mixed ethnicities) to have a relationship with their parents, it is also good for them to have peace and stability. The Appellant’s children required peace and stability.