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Tunisian criminal loses Supreme Court deportation challenge

Published 16/11/2016

Seven Supreme Court justices in London announced their unanimous decision
Seven Supreme Court justices in London announced their unanimous decision

A foreign criminal who asked the UK's highest court to block his deportation on human rights grounds has lost his appeal.

Seven Supreme Court justices in London announced their unanimous decision on Wednesday in the case of Tunisian Zouhair Makhlouf, 45, who lives in Northern Ireland and has committed offences of grievous bodily harm and possession of an offensive weapon.

It was argued on his behalf that removing him from the UK would be incompatible with his right to a family life under Article 8 of the European Convention on Human Rights.

One of the issues at the heart of the case was whether the Home Secretary had failed properly to consider the Article 8 rights and "best interests" of his two children - and if so, whether that meant the decision to deport him in 2012 was "not in accordance with the law".

The appeal brought by Makhlouf was dismissed by Supreme Court president Lord Neuberger, deputy president Lady Hale, and Lords Kerr, Wilson, Reed, Hughes and Thomas.

Giving the main judgment, Lord Kerr said: "Where a decision is taken about the deportation of a foreign criminal who has children residing in this country, separate consideration of their best interests is obviously required, especially if they do not converge with those of the parent to be deported."

In a case of a child with a dual ethnic background, "that factor requires to be closely examined" and the child's interests "must rank as a primary consideration".

The question in the case was whether the Home Secretary was "in fact provided with sufficient material on which to make a proper judgment" on the Article 8 rights of Makhlouf and his children.

Lord Kerr said: "All the evidence on this issue leads unmistakably to the conclusion that the appellant did not enjoy any relationship with either of his children and that they had led lives which were wholly untouched by the circumstance that he was their father."

Lady Hale said the focus of the argument on Makhlouf's behalf was that the "Secretary of State should have undertaken her own independent inquiries into the best interests of his two children before deciding to deport him".

She said his QC had been "right to say that where children will be affected by a deportation or removal decision, their best interests must be treated as a primary consideration, and considered separately from those of the adults involved and from the public interest".

But she pointed out: "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 right-holders in their own right."

Lady Hale said: "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. This is emphatically not one of them."

Makhlouf married a UK citizen from Northern Ireland in 1996. She gave birth to a daughter the following year and he was granted indefinite leave to remain in 1999.

He and his wife separated, but he remained in the UK and lived with another partner, who gave birth to a son in 2006.

The Supreme Court also ruled on Wednesday in a human rights deportation challenge brought by Iraqi national Hesham Ali, who has been convicted of drugs offences.

Ali, who entered the UK unlawfully in 2000, has a long-standing relationship with a British citizen. The H ome Secretary made a deportation order in 2010.

The Supreme Court dismissed Ali's appeal by a six-to-one majority against a Court of Appeal decision that his deportation challenge has to be looked at again by a fresh immigration tribunal - after an earlier tribunal ruled that his removal would be incompatible with Article 8.

In 2013 the tribunal found that he was not a danger to the community, he had put drug-taking behind him, and his partner could not reasonably be expected to live in Iraq.

But the Home Secretary later successfully challenged the tribunal's decision in the Court of Appeal on the grounds that it had erred in failing to consider new immigration rules which came into effect in July 2012, and in failing to recognise the importance of the public interest in deporting foreign criminals.

At the heart of Ali's appeal at the Supreme Court was the issue of whether immigration rules that are intended to set out the weight to be given to the public interest in the deportation of foreign national offenders are compatible with the "balancing act" required by the Article 8 right to family life.

Dismissing the appeal, Lord Reed said the reasoning of the tribunal "failed to take any account of the new rules, and also failed to take account of the important fact that the appellant's family life had been established when his immigration status was known to be precarious".

Lord Wilson said: "This is an important day in the life of the court. For it is the first occasion upon which either we or our predecessors in the House of Lords have had occasion to address the interface between the power of the Secretary of State to deport a foreign criminal and the latter's ability to resist deportation by reference to his right to respect for his family life under Article 8 of the ECHR.

"It is a subject which generates strong views in our society."

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