In Sanade and others (British children – Zambrano – Dereci) [2012] UKUT 00048(IAC) the Upper Tribunal examined the interplay between the automatic deportation following a sentence to imprisonment of 12 months or more, and the statutory exception to deportation afforded by Article 8 ECHR, with particular reference to the children of the person being removed.
It was accepted by the Upper Tribunal that deportation is in the public interest and should proceed in the absence of human rights arguments. However, contrary to a consultation document issued by the Secretary of State where is was stated that ‘only in exceptional circumstances will it be a breach of the right to respect for private and family life to remove the person from the UK’, the Upper Tribunal held that an Article 8 ECHR claim does not have to be exceptional. The issue is whether the State can justify the interference as necessary, proportionate and in pursuit of a legitimate aim.
Most significantly, the effect of the recent judgements in ZH (Tanzania) v SSHD [2011] UKSC 4 and Ruiz Zambrano Case C-34/09 on deportation cases was considered by the Upper Tribunal in Sanade. In ZH (Tanzania) it was held that the effect of removal or deportation of a non-citizen parent on an EU citizen child, should be carefully considered.
The Upper Tribunal concluded that deporting individuals in cases of particular seriousness may be a legitimate aim that could outweigh the best interests of children, particularly when combined with other aspects of public interest. However, the fact that a child is a British national imposes a significantly higher threshold when deciding whether the child should be expected to join a parent abroad. Furthermore, where the crime committed by an individual is so contrary to public interest that deportation would be a justified and legitimate aim, this legitimate aim must be balanced against the loss of a parent to a child.
In Zambrano it was held, that the removal of a third country national parent from the EU was unlawful where it would result in the constructive expulsion of an EU citizen child. In the case of Sanade, none of the children were dependent on their father for the exercise of their Union rights. Therefore, the removal of the fathers would not deprive the children of the effective exercise of the right of residence in the UK or elsewhere in the Union. The Upper Tribunal found that, in the absence of dependency for the exercise of Union rights due to a remaining parent not facing removal there was no infringement of the Zambrano principle. Such cases would be governed by Article 8 ECHR.
