This is an example of an Article 8 deportation case which Erica dealt with. It concerned a decision by the Home Office to refuse to revoke DV’s Deportation Order and grant him leave to remain on the basis of his family life with a child in the UK pursuant to Paragraph 399 of the Immigration Rules and, further, certification of his human rights claim under Section 94B of the Nationality, Immigration and Asylum Act 2002 so as to deny him the right to appeal that decision whilst he remained in the UK.

DV was a national of Nigeria who had remained in the UK as an overstayer. He was however joined in the UK by his partner and two children. The couple’s third child was born in the UK. The client’s wife and three children were all granted refugee status.

DV was subsequently convicted of several fraud offences and sentenced to 18 months in prison. As a result of this, the Home Office issued a Deportation Order against him and also refused his protection and human rights claim. In response to this, he submitted further representations and evidence under Article 8 ECHR, relying upon his family and private life in the UK. The Home Office subsequently refused DV’s human rights claim and again certified it under Section 94B of the Nationality, Immigration and Asylum Act 2002.

Section 94B enables the Home Office to certify human rights claims made by a person liable to deportation. The effect of this is that the individual may only bring an appeal against any refusal to grant him asylum or human rights from outside the UK. The Home Office can only apply s94B where it can be shown that it would not be unlawful under Section 6 of the Human Rights Act and that removal pending determination of any appeal would not give rise to a real risk of serious irreversible harm.

It was argued by the Home Office that the Article 8 human rights claim should be refused on the basis that it would not be unduly harsh for the client’s children to remain in the UK with their mother,that the family could utilise modern means of communication and make practical arrangements for alternative childcare in the event of DV’s removal to Nigeria. This is despite the fact that the Home Office also accepted that the children had a genuine and subsisting relationship with DV in that they lived together and he played an active role in their lives, that DV’s deportation would have an emotional impact upon them and that as Nigerian nationals with refugee status in the UK it would be unduly harsh for them to return to Nigeria with him.

We were unsuccessful initially in trying to resolve this matter through correspondence with the Home Office. As such it was necessary to issue proceedings for judicial review against the Home Office regarding the decision. It was argued that in deciding to certify the client’s human rights and asylum claim, the Home Office failed to take into account all relevant considerations regarding the family life the client enjoyed with his wife and children and the evidence that had been submitted in support of the same from a number of sources including letters written by the children themselves, letters from their school and providers of activities attended to by the children. It was further argued that the Courts have repeatedly made it clear that modern means of communication would not mitigate the emotional impact of a parent’s absence on the children. It was also argued that the Home Office had failed to take into account the fact that DV had not offended since 2014 and had shown himself to have been rehabilitated through his charitable and community work.

Once proceedings were issued, the Home Office decided that it would not defend the action further and ultimately the claim was successful. The Home Office agreed to withdraw its decision and make a new decision within 3 months. The result of the new decision was to again refuse DV’s asylum and human rights claim but, on this occasion, not certify the same. This meant DV was granted an in-country right of appeal. The appeal was subsequently dealt with by our in-house Asylum Team, the result of which ultimately was for DV to be granted 5 years’ refugee leave.