Leave to remain - Appeal - Right to respect for private and family life

AJ v Secretary of State for the Home Department: Court of Appeal, Civil Division (Lords Justice Pill, Etherton, Sir Mark Potter): 21 September 2011

AJ was a Nigerian national who first entered the United Kingdom in 1988 as a visitor and obtained a 12-month student visa which expired in 1990. He formed a relationship with a British citizen, JO, and they had three children, including G, by 1994. Having been convicted of shoplifting, AJ was deported to Nigeria. He returned illegally in 1997, and remained in the UK, living with JA.

On 9 March 2010, the court refused the application of AJ to quash a decision of the secretary of state refusing AJ leave to remain in the UK on the basis of art 8 of the European convention on Human Rights. The secretary of state had been made aware by submissions that G would be affected by the decision to refuse leave to AJ, but she did not visibly consider that was in the best interests of G. AJ and family were granted discretionary leave to remain on 5 July 2011. AJ appealed against the 9 March decision.

AJ submitted that the secretary of state had, in her decision, failed to have proper regard to the best interests of the child, G, as required by section 55 of the Borders, Citizens, and Immigration Act 2009. The appeal would be allowed.

In the circumstances, the second of the Secretary of State’s decisions in relation to AJ did not visibly consider what was in the best interest of G although she had been made aware by submissions and evidence… that G would be affected by the decision to refuse leave to AJ. Accordingly, the decision of 9 March would be quashed (See [18]-[19] of the judgment).

Zane Malik (instructed by Malik Law) for AJ. Susan Chan (instructed by the Treasury Solicitor) for the secretary of state.