AC and The Immigration Appeal Tribunal-and- Secretary of State for the Home Department [QBD, 11/03/2003]
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jack |
| Judgment Date | 11 March 2003 |
| Neutral Citation | [2003] EWHC 389 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 March 2003 |
| Docket Number | Case No: CO/4267/2002 |
[2003] EWHC 389 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Jack
Case No: CO/4267/2002
Nicholas Blake Qc And Martin Soorjoo (instructed By Glazer Delmar) For The Claimant
Steven Kovats (instructed By Treasury Solicitor) For The Defendant
This is an application to review a preliminary ruling of the Immigration Appeal Tribunal made on 22 August 2002. The Tribunal's ruling was given in the course of an appeal by the Secretary of State from a decision of the adjudicator, delivered on 13 June 2002. The decision of the adjudicator appealed against was made in determination of an appeal under section 65 of the Immigration and Asylum Act 1999. The decision under appeal to the adjudicator was the decision of the Secretary of State made on 6 November 2001 refusing to revoke a deportation order made on 13 September 2001.
The application to this court raises the question as to what matters may be relied on by a section 65 appellant, in particular whether the appellant may rely on interference with the right to family life accorded by Article 8 of the European Convention to a family member other than the appellant. If the appellant may not rely on interference with the right to family life accorded to other family members, the issue then arises whether an adjudicator, or the Immigration Appeal Tribunal on appeal from an adjudicator, should nonetheless take into account the impact of the deportation decision on another family member such as a child of the appellant.
The claimant in this court and the successful appellant before the adjudicator is AC, a Turkish national. She came to the United Kingdom in 1995 and soon after married MA. On 3 August 1996 she gave birth to a daughter, S, who is now 6 years old. In 1997 she separated from her husband because of his violence, as she alleges. She took S with her. AC and MA have since divorced.
On 2 November 1998 (when S was 2 years old) AC was sentenced to imprisonment for 10 years for an offence of causing grievous bodily harm with intent to do grievous bodily harm. A recommendation was made for deportation. On appeal against sentence the period of imprisonment was reduced to 8 years but the recommendation for deportation remained. On 13 September 2001 an order was made by the Secretary of State for the deportation of AC. This must have been followed by a request on behalf of AC that the Secretary of State revoke the order. That was refused on 6 November 2001, and, as stated, it is this refusal which is the subject of appeal. I do not have a copy of the refusal. I take its date from the Home Office letter of 1 May 2002. On 22 April 2002 AC became entitled to release from prison on parole: but she continued to be detained under the power of the Secretary of State under paragraph 2 of Schedule 3 to the Immigration Act 1971 to detain her pending her deportation. The letter of 1 May 2002 was written in consequence of AC's Solicitors' letter of 16 April 2002 asking for her release from prison on compassionate grounds. The letter of 1 May 2002 set out a full consideration over 5 pages of the factors relating to the decision to deport AC including reference to her human rights and paragraph 364 of the Immigration Rules. By letter of 19 April 2002 the Secretary of State had refused to release AC from prison. At the date of this judgment she remains there.
When her mother was arrested, S was placed with foster parents. Later a residence order was made in favour of her father. Since February 2000 she has lived with him. She has maintained her relationship with her mother while her mother has been in prison by means of visits and telephone calls. It is said that a warm and loving relationship exists between them. It is accepted that 'family life' exists between them. The effect of AC's deportation on her relationship with S was an important factor in the adjudicator's decision allowing AC's appeal under section 65.
It is next necessary to explain the proceedings before the Tribunal so far. The 22 August 2002 was fixed as the hearing date for the Secretary of State's appeal. On that day counsel for AC and the Secretary of State attended prepared to argue the appeal. There also attended before the Tribunal counsel, Miss Gordon, who was instructed by solicitors to represent the interests of S. It is unclear from whom those solicitors were receiving their instructions. It was in consequence of submissions made by Miss Gordon that the Tribunal made a number of preliminary rulings in relation to the appeal. The submissions of Miss Gordon were supported by Mr Sorjoo on behalf of AC in so far as they related to the relevance of S's human rights. I can summarise the preliminary rulings as follows:
(1) S was not a party to the appeal (paragraphs 4 of the ruling); nor had S a right of appeal under section 65 (paragraph 6 of the ruling).
(2) S had no right to intervene in the appeal (paragraph 12).
(3) S had a right to contest the Secretary of State's decision to deport her mother on the ground that it was an infringement of her family rights and contrary to Article 8 of the European Convention on Human Rights by making a claim to that effect before the Administrative Court as provided by section 7 of the Human Rights Act 1998 (enlarged from paragraph 14).
(4) The appeal of AC under section 65 was to be determined by looking at the rights of AC to her family life under Article 8, and not by looking at S's human right to a family life. S's human rights did not require to be taken into account. This did not exclude evidence as to the mother/daughter relationship but that evidence would be examined in the light of AC's rights (paragraph 26).
Counsel before me, Mr Nicholas Blake Q.C. for AC, and Mr Steven Kovats for the Secretary of State, agreed that this was a correct statement of the Tribunal's rulings and that it was the fourth ruling, and only the fourth, which was in issue before me. I can make clear at this point that this judgment is not concerned with an examination of the rights of S under section 7 of the Human Rights Act.
The decision sought to be reviewed is identified in the claim form as follows:
'Preliminary ruling of the Immigration Appeal Tribunal refusing to take account …. [of] the impact of the claimant's removal from the United Kingdom on her daughter, [S].' Mr Blake submitted that, in deciding whether to make or to revoke a deportation order, the Secretary of State was bound to consider the effect of the proposed deportation on the human rights of both AC and of S. He submitted that as between AC and S there was a single family life and that they each had the same right to that family life. He submitted that, like the Secretary of State, the adjudicator and the Tribunal on an appeal under section 65 had to take account of the rights of both mother and daughter under article 8. He submitted that, in any event, they had to examine the impact on both mother and daughter if AC were to be deported to Turkey.
The submissions of Mr Kovats on behalf of the Secretary of State were as follows:
(1) On an appeal under section 65 the adjudicator and the Tribunal were concerned with the human rights of the appellant, here AC, and not with the human rights of any other family member, here S.
(2) There was a single family life between AC and S.
(3) It followed from (2) that the adjudicator and the Tribunal had to consider that family life and the potential impact of the proposed deportation on it, and hence its impact on both AC and on S.
(4) On the facts of this case it appeared that the rights of S under Article 8 were no different to those of her mother: they were two sides of one coin. It was stated in paragraph 42 of the grounds for contesting the claim: 'The importance to a mother of looking after her young daughter is the same as the importance to a young daughter of being looked after by her mother.'
(5) If the Tribunal had held in paragraph 26 of its ruling that it should not take account of the potential impact on S of the proposed deportation, he did not seek to uphold the Tribunal. He submitted that the Tribunal had not so held.
Both sides were therefore agreed that the Tribunal should take account of the impact on S of a deportation of her mother. On the basis of this agreement, either the claim as stated in the claim form is misconceived because the Tribunal held as it is agreed it should have been, or that this aspect of the Tribunal's ruling should be quashed. Mr Blake and Mr Kovats were, however, opposed as to whether it was appropriate for the Tribunal (and the adjudicator and the Secretary of State earlier) to take into account the human rights of S.
In paragraph 26 of its ruling the Tribunal stated:
'26. For those reasons, which we have set out at much too great length, we conclude that [S] has, as such, no interest in presenting her human rights in this appeal. It follows that when this appeal is determined on the merits, we should be concerned, of course, with the circumstances of the family as a whole, but not by looking at [S's] right not to have her mother removed, if she is said to have such a right, but to look at the mother's rights. We shall be concerned whether it is right to say that the mother's removal infringes the mother's human rights as a whole – including any right to be with [S].
Theninparagraph28:
'28. No doubt when the appeal is heard, there will be evidence about the daughter's position and the...
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