The Iraqi respondent (R's) right to family life precluded his removal from the UK, even in the face of his criminal convictions

The Iraqi respondent (R's) right to family life precluded his removal from the UK

, even in the face of his criminal convictions

The Secretary of State for the Home Department v Respondent [2010] UKUT B1 (10 December 2010)

The Iraqi respondent (R's) right to family life precluded his removal from the UK, even in the face of his criminal convictions.

The Immigration Judge (IJ) had been entitled to find that the respondent had established a family life. Appropriate weight had been given to R's criminal convictions. However, the IJ should have addressed the submission that R should be returned to Iraq in order to make an entry clearance application, to regularise his immigration position in the UK. Given that a refusal of entry clearance would breach R's right to family life (Article 8 of the European Convention of Human Rights), there was nothing to be achieved by removing him from the UK.

The facts were that R, driving whilst disqualified, had failed to report an accident in which a child was trapped under his car and died. There was no criminal responsibility (no dangerous or careless driving), but R should not have been driving in the first place. In this case, which naturally aroused strong emotions, the father of the child who had died asked that his human right not to be separated from his child be balanced against that of the respondent's. However, the interests to be balanced were not those of the child's father and R. This was an assessment of the public interest arguments justifying removal, balanced against the consequences of removal for R, his partner and their children.

The respondent had begun a relationship with a British national in 2003. They lived together and had two children, and the respondent acted as father figure to his partner's two children from a previous marriage. It was found the respondent had established a family life in the UK. Because of the delay in dealing with the respondent's immigration matters, he had had time to develop familial ties in the UK (EB(Kosovo)[2008] UKHL 41) . The interests of the four children involved were of particular significance. The IJ had therefore allowed the appeal.

The SSHO appealed the decision. However, there had been no misdirection in law in balancing the evidence of criminality and family life, especially in light of LD (Zimbabwe)[2010] UKUT 278, which made clear that the interests of the child would always be a relevant consideration in an Article 8 case.

It might be noted that on the approach ofMA (Nigeria) v SSHD009] EWCA, in assessing whether removal of an illegal immigrant would breach his rights to family life, regard would be had to the length of time required to elapse by paragraph 320 (7B) of the Immigration Rules before R would be allowed to return. (Paragraph 320 (7B) was a mandatory refusal.) Because of the respondent's right to family life, however, regardless of the Immigration Rules, refusing him entry clearance would be unlawful.

There was thus no useful purpose to be served in requiring R to return to Iraq in order to apply for an entry clearance to which he has become entitled under Article 8.

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