The Human Rights Unit hosted their 2016/17 launch event on 30th November, at which Emma Daykin gave a talk entitled ‘Deportation and the Rights of the Child’.
Emma, a barrister at Lamb Building Chambers, spoke to BPP law students at the Holborn Campus outlining the issues she has faced in defending clients who face deportation from the UK but have children who are British.
The British government is increasingly clamping down on non-EU migrants who commit crimes, with Home Office guidelines prescribing automatic deportation for migrants whose sentence exceeds a particular limit. These apparently arbitrary cut-off points have the effect of denying appellants the opportunity to have the particular circumstances of their case considered.
For example, Emma spoke of one client who had migrated to the UK with his family from a non-EU state as a child, and had unfortunately become involved in a gang as a teenager. He was convicted of a violent crime and imprisoned. Since his release, he has worked extensively with youths to prevent gang culture in his area and has been an active member of his community and raised a family. Following an application to the government for an ID card, his past conviction was brought to the attention of officials, who then refused to grant him residency as his prison sentence exceeded the Home Office’s limit and therefore he now faces deportation.
As a result of this domestic situation, the best options available to immigration lawyers in these cases generally come from European Union law. The case of Zambrano, for example, provided a positive judgment for appellants. The case, heard at the European Court of Justice, involved a Columbian couple residing illegally in Belgium who had two children who were Belgium. In its judgment, the court stated that:
“…Article 20 TFEU [stating that EU citizens can enjoy the rights set out in the EU treaties] is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”
That is, non-EU nationals who are parents to a child who is an EU national must be granted the right to reside and work in that Member State in order to protect the child’s right, as an EU citizen, to live and enjoy the benefits of living in the EU, if there is no one else in the Member State who can care for that child.
However, this reasoning of the judgment in Zambrano was challenged by the government in the English courts in the case of SSHD v CS C-304/14. The Upper Tribunal (Immigration and Asylum Chamber) made a reference to the Court of Justice, asking whether it would be consistent with EU law to deport a non-EU parent of an EU citizen, if for example a crime were sufficiently serious. One of the government’s arguments was that the rule in Zambrano would potentially give a non-EU citizen in the UK more rights than an non-UK EU citizen in the UK. The Court of Justice gave a preliminary ruling that while there were some circumstances in which such a deportation would be compatible with EU law, this cannot be an automatic process and the particulars of each case must be assessed individually. Crucially, in paragraph 45 of the ruling, the Court of Justice said that ‘the mere existence of a criminal record cannot, by itself, justify an expulsion’.
Home Office guidelines have not been adapted in light of this case. Further challenges may face immigration lawyers when the UK leaves the European Union.
BPP Human Rights Unit Student Director