CJ (Family Proceedings and Deportation) South Africa

The Claimant, a citizen of South Africa, was convicted of sexual assault and assault occasioning actual bodily harm. The offences were committed against his wife and in the presence of his two children. He was sentenced to two years in prison and faced automatic deportation pursuant to the UK Borders Act 2007. He was currently engaged in proceedings before the Family Court to determine contact arrangements with his children and was permitted limited, indirect contact with the children, pending the final determination of those proceedings.

In 2021, the First-tier Tribunal (‘FtT’) allowed the Claimant's appeal against the Secretary of State for the Home Department's decision to refuse his human rights claim. It was common ground before the FtT that the Secretary of State would not remove the Claimant from the United Kingdom during the currency of the contact proceedings in accordance with MH (pending family proceedings — discretionary leave) Morocco[2010] UKUT 439 (IAC). The Secretary of State had contested the appeal before the FtT on the ground that, although the Claimant would not be removed during the currency of the contact proceedings, it was necessary to address the substance of his human rights claim through the lens of section 117C of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) in any event. She submitted that, as a ‘medium offender’, the Claimant would have to demonstrate that his deportation would be ‘unduly harsh’ on the children, or that there were ‘very compelling circumstances’ over and above the exceptions to deportation. The FtT held that the Claimant's removal or potential removal whilst engaged in Family Court proceedings might breach his rights pursuant to Article 8 ECHR and that the ultimate determination of the Family Court would be a matter to be considered in the final decision of whether he should be deported.

Before the Upper Tribunal (‘UT’), the Secretary of State submitted that the FtT had failed properly to consider the public interest in the deportation of foreign criminals pursuant to section 117C of the 2002 Act, had erred in failing to approach the pending family proceedings as though they were finally determined and had failed to consider the guidance in RS (immigration and family court proceedings) India[2012] UKUT 218 (IAC).

Held, dismissing the appeal:

(1) Where a claimant in an appeal challenging the refusal of a human rights claim was engaged in proceedings before the Family Court, the general approach in MS (Ivory Coast) v Secretary of State for the Home Department[2007] EWCA Civ 133, RS and MH concerning the need for a claimant to be permitted to remain in the United Kingdom in order to prosecute family proceedings remained applicable. In particular, a tribunal considering that issue should address the questions at paragraphs 43 to 45 of RS (other than the questions in paragraph 44(ii)). A tribunal should not purport to allow the appeal to a ‘limited extent’ nor give a direction that a period of discretionary leave should be granted to the claimant in accordance with paragraph 44(ii) of RS. The only option now open to the tribunal on an appeal under Part 5 of the 2002 Act was to allow or dismiss the appeal. The power to give a direction for the purpose of giving effect to its decision previously contained in section 87 of the 2002 Act was repealed by the Immigration Act 2014 on 20 October 2014. In an appeal against the refusal of a human rights claim, where a tribunal concluded that the claimant had an Article 8 ECHR right to remain at least until the conclusion of family proceedings concerning the claimant's children, that was likely to merit a finding that there were ‘very compelling circumstances over and above those described in Exceptions 1 and 2’ for the purposes of section 117C(6) of the 2001 Act, and the appeal should usually be allowed in express reliance on that subsection. It was likely to be helpful for the tribunal to observe that, although implementing allowed appeals was a matter for the Secretary of State, the requirements of Article 8 were only likely to necessitate the granting of such period of leave as was sufficient to enable the family proceedings to be determined. When the family proceedings were resolved, the claimant and the Secretary of State might each reassess their respective positions in the light of the final contact arrangements, as determined by the Family Court (para 40).

(2) The FtT had had the public interest in the deportation of foreign criminals firmly in mind when considering the Claimant's appeal. Since even the Secretary of State recognised that the Claimant could not be removed pending the resolution of the family proceedings, it was hardly surprising that the express focus of the FtT was the application of the criteria in MS and MH, rather than the public interest in the deportation of foreign criminals (paras 42 – 46).

(3) The decision in Secretary of State for the Home Department v VC (Sri Lanka)[2017] EWCA Civ 1967 was not authority for the general proposition that a prospective deportee with no current contact with his or her children was not entitled to the protection of Article 8 while contact proceedings were pending. VC concerned a human rights claim made against the background of a final adoption order, with the only remaining step in the family proceedings being the location of a suitable permanent placement. By contrast, the instant proceedings were squarely in MS and MH territory. At the date of the hearing before the FtT and the UT, the family proceedings were yet to be resolved. The FtT did not fall into error by failing to approach the pending family proceedings as though they were finally determined; indeed, it would have been an error for it to have done so (paras 47 – 48).

(4) The FtT had considered the relevant guidance in RS and expressly found that the Claimant's application to the Family Court was a genuine attempt on his part to improve the nature and quality of his contact with his children. The FtT properly declined to perform a substantive analysis of the Claimant's prospective deportation as to do so would have entailed a degree of speculation and would have been contrary to the guidance in RS. The FtT was entitled to conclude that the requirements of Article 8 ECHR were such that it would be disproportionate to remove the Claimant until the resolution of the family proceedings (paras 50 – 57).