Makhlouf (Appellant) v. Secretary of State for the Home Department (Northern Ireland) - (16 Nov 2016)

Children must be recognised as rights-holders on their own account and not just as adjuncts to other people’s rights

Criminal

Instant appeal is against an order for deportation of a foreign criminal. Appellant appealed claiming that his deportation would breach his and his children’s right to respect for private and family life under Article 8 of European Convention on Human Rights and that, Secretary of State had failed to take sufficient account of best interests of his children. Appeals to the First-tier Tribunal, Upper Tribunal and Court of Appeal were dismissed.

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

Appellant did not enjoy any relationship with either of his children and they led lives which were wholly untouched by circumstance that he was their father. While possibility of such a relationship developing was a factor to be considered, in present case, material available to the Secretary of State could admit of no conclusion other than it was unlikely in extreme. Secretary of State was therefore not obliged to make yet further inquiries in relation to Appellant and his children beyond those which had already taken place. Children must be recognised as rights-holders on their own account and not just as adjuncts to other people’s rights. But that does not mean that their rights are inevitably a passport to another person’s rights. In present case is, it is appellant who is treating children as a passport to his own rights, rather than as rights-holders in their own right.

A family court deciding the future of a child has to make the welfare of the child, not only “a primary” consideration, but its “paramount” consideration. Family courts are supposed to know about the best interests of children and they have appropriate investigative resources to make their own independent enquiries should they need to do so. 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. There was no credible evidence that, Appellant had sought contact with his son and nothing to suggest that, 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. There is nothing to suggest that, best interests of these children require that their father should remain in United Kingdom.

Tags : DEPORTATION BREACH RIGHT