* United Kingdom, Inner House of the Court of Session, extra division, 10 June 2016 [2016] CSIH 42

Identification of the case

• The rights of the child (art. 24 CFREU)

• Section 13 (4) of the Tribunals, Courts and Enforcement Act 2007
• Note section 55 of the border Citizenship and Immigration Act 2009

• Article 21 TFEU
• Directive 2004/38/EC (the Citizenship Directive)

Summary of the case

The applicant, a citizen of Kenya, entered the UK in 2007 and had been entitled to be a resident by a series of leave to enter visas until October 2014. He was then refused the leave to remain, which he appealed against before the First Tier Tribunal with reference to several Immigration Rules and on the basis that to require him to remove himself from the UK, Mr W, was a disproportionate interference with his private and family life and therefore an infringement of his rights under Article 8 ECHR. The appeal was refused, but permission to appeal to the Asylum Chamber of the Upper Tribunal (UT) was granted. This permission was based on the view that insufficient consideration had been given to the best interests of the claimant’s child T, who was a citizen of the Czech Republic but born in Scotland in 2011 and at the time living with her mother, Ms M. This was based on the fact that if Mr W was no longer resident in the UK, his regular direct contact with T would not continue. Subsequently, the following appeals to the UT were refused. However, this case concerns the right of appeal to the Court of Session, conferred by Section 13(1) of the Tribunals, Courts and Enforcement Act of 2007 concerning any point of law arising from the decision made by the UT. In order for the appeal to be successful, the proposed appeal should complete the so-called second appeals test. This consideration is the focal point of the present judgment.

• Civil judicial enforcement

Application for permission to appeal against a decision of the Immigration and Asylum Chamber of the Upper Tribunal (the UT) dated 15 October 2015.

The Court stated that it is required to apply what was described as the second appeals test (para 5). Thus, the proposed appeal must, besides demonstrating an arguable material error in law, either raise an important point of principle, or there must be some other compelling reason for the court to hear the appeal.

The applicant submitted that an important point of principle is met when assessing the proportionality of T's Article 24(3) Charter right to direct contact with his father. The applicant put forward that the best interests of T had not been correctly assessed at any stage of the applicant's involvement with the immigration authorities. Moreover, the applicant submitted that given the decision in Abdul (2016, UKUT 106 IAC) recognises that Article 24(3) creates a freestanding right to have contact post-dated the decision at issue in this appeal, The First Tier Tribunal (FTT) had made a material error in law. In the view of the applicant, this amounted to a further compelling reason to grant leave to appeal (para 6).

The respondent opposing the application pointed out that the applicant had not founded his claim on the Charter before the UT. Nevertheless, they submitted that the provision in question should be assessed in the light of the Explanations on the Charter, which indicates the limited effect of the right, which is conferred by Article 24(3). Moreover, they submitted that the UT had been correct and that the removal of the applicant from the UK would not be a disproportionate interference with that contact given that while contact would be reduced, it would not be extinguished (para 7).

The Court had to analyse the parties’ argumentation relating to the sufficient reasons to grant leave to appeal. Before that, the Court relied on the Citizenship Directive in assessing the immigration status of Ms K and concluded that even though her status could be held to be uncertain, it was of no consequence in the present case. The Court recognised that T was likely to benefit more from regular and direct contact with the appellant than contact which was mainly indirect due to the appellant’s removal. Thus, it took this into account in determining the proportionality in the circumstances of the case (para 10).

The Court held that the applicant’s point 4 required separate consideration. The applicant submitted a failure on the part of the UT to take account of T's right to regular direct contact with her father in terms of Article 24(3) of the Charter. The Court affirmed the respondent’s view of the case C-249/13, and held that even fundamental rights might be restricted provided that the restrictions correspond to objectives of general interest and that they do not involve disproportionate and intolerable interference with the substance of the guaranteed rights. This referred to the applicant’s view on the child’s right to direct contact with both parents, which was fundamental in nature and would only be “trumped” by it being shown that contact would not be in the child’s best interests (para 13).

Moreover, the Court held that there was no mention of the Charter before the UT (or the FTT) and that this court only had jurisdiction in respect of a “point of law arising from a decision made by the Upper Tribunal”. Therefore, the Court refused permission to appeal.

Role of the Charter and role of the general principles on enforcement

The case concerns the rights of the child enshrined in Article 24 of the Charter and especially the article's paragraph 3 that confers every child a have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents. The case brought forward that even though this right is to be assessed proportionally and should especially be taken into account in immigration situations, it is a right that can be restricted in particular situations.

• Right to an effective remedy before a tribunal

Tribunals, Courts and Enforcement Act 2007:

Section 13 Right to appeal to Court of Appeal etc.

(4)Permission (or leave) may be given by—

(a)the Upper Tribunal, or

(b)the relevant appellate court, on an application by the party Borders,

Citizenship and Immigration Act 2009

Section 55 Duty regarding the welfare of children

(1)The Secretary of State must make arrangements for ensuring that—

(a)the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b)any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.

(2)The functions referred to in subsection (1) are—

(a)any function of the Secretary of State in relation to immigration, asylum or nationality;

(b)any function conferred by or by virtue of the Immigration Acts on an immigration officer;

(c)any general customs function of the Secretary of State;

(d)any customs function conferred on a designated customs official.

(3)A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).

(4)The Director of Border Revenue must make arrangements for ensuring that—

(a)the Director's functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b)any services provided by another person pursuant to arrangements made by the Director in the discharge of such a function are provided having regard to that need.

(5)A person exercising a function of the Director of Border Revenue must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (4).

(6)In this section—

• "children" means persons who are under the age of 18;
• "customs function", "designated customs official", and "general customs function" have the meanings given by Part1.

(7)A reference in an enactment (other than this Act) to the Immigration Acts includes a reference to this section.

(8) Section 21 of the UK Borders Act 2007 (c. 30) (children) ceases to have effect.

Article 24(3) confers to every child a right to maintain on a regular basis a personal relationship and direct contact with both his or her parents unless that is contrary to his or her interests. The article was referred by the applicant concerning the effect of proportionality of T's right to direct contact with her father. However, the Court held that even this fundamental right could be restricted and that the Charter was not brought forward before UT, meaning that the case was out of the scope of the Court’s jurisdiction.

Article 13 ECHR guarantees everyone's right to an effective remedy that is relevant to the case, as the case is concerning permission to appeal. Moreover, the applicant had had multiple appeals before the case in hand, executing this right in practice.

• Proportionality

Proportionality was especially considered in the case when the situation of T and her rights as a child were considered as it was to be determined what the proportionate measures were in the view of the child. The case referred to case C-249/13 in deciding that the rights of a child could be restricted if they do not inter alia involve disproportionate interference with the guaranteed rights. Moreover, the removal of the applicant from the UK was discussed from the point of view of proportionality as the applicant argued it was a disproportional interference with his rights under the ECHR.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
• Dialogue between high court - lower instance court at national level

• CJEU C-34/09, Ruiz Zambrano
• CJEU C-529/11, Alarape and Tijani
• CJEU Joined Cases C-424/10 and C-425/11, Ziolkowski and Szeja
• CJEU C-249/13, Boudjlida

• Conform interpretation with EU law as interpreted by the CJEU
• Proportionality

The Court refers to several CJEU cases in order to conform interpretation with EU law and observe the CJEU case law on the matter relating to the child's rights and the measures taken by the immigration authorities. Subsequently, it uses the proportionality principle as a point of reference in deciding its view on the measures taken in the case and the interpretation it uses in evaluating the child's rights against the measures to remove the applicant.

The outcome was that the permission to appeal the decision of the UT was refused.

Additional notes on the decision