MH v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Senior Immigration Judge Jarvis |
| Judgment Date | 20 September 2010 |
| Neutral Citation | [2010] UKUT 439 (IAC) |
| Date | 20 September 2010 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2010] UKUT 439 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
SENIOR IMMIGRATION JUDGE Jarvis
For the Appellant: Mr P Lewis, Counsel instructed by Dexter Montague & Partners Solicitors
For the Respondent: Mr R Hopkin Home Office Presenting Officer
MH (pending family proceedings-discretionary leave) Morocco
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1. In MS (Ivory Coast) [2007] EWCA Civ 133 it was accepted, following Ciliz v Netherlands (Application no. 29192/95) [2000] ECHR 365 ; [2000] FLR 469, that a decision to remove an applicant in the process of seeking a contact order may violate Article 8 ECHR, in particular on the basis that removal of a parent/applicant during contact order proceedingswould be unlawful because it prejudged the outcome of the contact proceedings and, more importantly, denied the applicant all possibility of any further meaningful involvement in the proceedings which may breach Article 6 ECHR.
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2. A refusal to adjourn proceedings before the Tribunal may have similar consequences.
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3. It is the respondent's practice (consistent with the Human Rights Act 1998), not to remove or deport parent(s)/parties when family or other court proceedings are current and to grant short periods of discretionary leave, to extend temporary admission, or release a person pending the outcome of the family proceedings. The use of curtailment is discretionary in such circumstances (see Home Office Guidance re-issued in October 2010).
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4. Where such a case arises before the Tribunal it is usual for the appeal to be allowed pursuant to Article 8 ECHR, rather than for the proceedings to remain within the Tribunal system to be adjourned, perhaps more than once. The respondent will normally then grant a short period of discretionary leave bearing in mind any relevant facts found by, or observations of an Immigration Judge. It is for the respondent to decide on the period of leave in each case.
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5. Where an application for contact (or a residence order, or for other relief) is successful then a parent/party may make application for further leave to remain in the UK. If unsuccessful, then it will be for the respondent to consider what steps to take in relation to that individual.
This appeal is being dealt with under the transitional provisions relating to the transfer of functions of the Asylum and Immigration Tribunal (AIT) to the Upper Tribunal.
The appellant, a citizen of Morocco, whose date of birth is given as 15 July 1976, appeals the decision of the respondent made on 11 May 2009 to curtail his leave to remain in the UK, pursuant to para 323(ii) of HC 395, the respondent not being satisfied that the appellant's marriage was subsisting (see para 281(iii) of HC395), he having originally been granted leave to enter as a spouse on 28 November 2007 until 19 November 2009, but having separated from his wife in or around September 2008 after the marriage broke down. The appellant appealed to an immigration judge. He accepted that his marriage was no longer subsisting and that he could not succeed in showing that he met the requirements of the immigration rules, but sought permission to remain in the United Kingdom (UK) under article 8 ECHR in order to pursue an existing application in family proceedings for an order for contact with his daughter.
By a determination issued on 19 May 2009 Immigration Judge M A Khan, sitting at Hatton Cross, dismissed the appeal, having refused a request for an adjournment of these proceedings pending the outcome of his application for an order for contact with his daughter. Immigration Judge Khan finds that as the appellant at present has no contact with the child, he does not enjoy family life in the UK and that he has limited private life given that he has been working in the UK, but that the public interest in his removal outweighs any interference with that private life and removal is necessary in a democratic society and he can continue his private life from Morocco by correspondence and telephone.
The judge then finds that there is provision in the rules for those who already have contact with their children and want to pursue that contact but the appellant has had no contact since June 2008. There is no CAFCASS report to date and the position is uncertain. He finds that there are no removal directions yet and that if the appellant manages to gain contact before the respondent decides to give directions for removal, then he can provide further evidence at any hearing of his appeal on removal.
The appellant sought permission to appeal and on 14 June 2010 Senior Immigration Judge Goldstein found that the grounds, particularly those relating to the refusal of the Immigration Judge to adjourn the proceedings, arguably showed that the judge may have made a material error of law for all or some of the reasons given in the grounds.
He gave directions for the further conduct of the appeal on 12 July 2010, and it is in this way that it comes before me now.
Mr Lewis indicated that there was now a final hearing listed for 26 November in the proceedings in the family court, at Bristol County Court, and that a CAFCASS Report was in preparation although not yet disclosed to the parties to those proceedings. He relied upon his grounds and submitted that the judge had failed to apply the guidance in MS (Ivory Coast) v SSHD [2007] EWCA Civ 133 (22 February 2007) in failing to adjourn the proceedings and that it would be a breach of Article 8 rights to remove the appellant now. He relied upon his grounds in submitting that the appeal should be allowed and the appellant granted a period of discretionary leave as appropriate.
Mr Hopkin submitted that in the future the provisions of para 248A of HC395 which deal with an application for leave to remain as a person exercising rights of access (sic) to a child resident in the UK, would be available to the appellant, but in the meantime he conceded that the judge had fallen into material error of law for the reasons advanced by Mr Lewis and was equally content that either the appeal be allowed and a period of discretionary leave granted, or that these proceedings be stayed pending the outcome of the family proceedings.
Mr Lewis, in response, submitted that rather than stay the proceedings, in the light of the guidance in MS (Ivory Coast), the correct course was to allow the appeal and direct that discretionary leave be granted. It was important not to potentially affect the family proceedings and the appellant was paying privately to be represented in these proceedings, and was raising article 6 ECHR concerns. There appeared to me to be no good reason why these proceedings should remain extant within the tribunal at this time, and in the light of the matters to which Mr Lewis drew attention and to which I return below, I took the view that the better course was for the appeal to be allowed pursuant to article 8 ECHR and for the appellant to be granted a period of leave to enable him to focus fully upon the family proceedings from a position of legal entitlement to be present in the UK.
Mr Hopkin was content that the appeal be allowed and indicated that he would recommend a period of discretionary leave of nine months to enable the clarification of the position within the family proceedings.
However, it is important that time be taken to set out in some detail, more of the facts of the case, of the guidance in MS (Ivory Coast), and the reasons for its existence, as well as the reasons why the judge got it wrong in this case, as summarised by Mr Lewis in his skeleton argument, to which I now refer.
The appellant is a national of Morocco who entered the UK on 28 November 2007 and was granted leave as the spouse of a British national. He was granted leave until 19 th November 2009 but, in or around September 2008, his relationship broke down and they separated. The appellant set out in some detail the circumstances of the relationship with his wife in his statement but fundamental to this appeal is that on 12 March 2006 the appellant's wife gave birth to their daughter, YB.
In or around November 2008 the appellant sought advice with respect to having contact with his daughter and his wife commenced divorce proceedings. The Children Act proceedings have been the subject of substantial delays. None of that delay appears to have been on account of the action, or indeed inaction, of the appellant. Approximately one year ago CAFCASS were ordered to prepare a report in the family proceedings. They have still not produced a report and it is understood that those acting on his behalf are now considering challenging that failure by way of Judicial Review proceedings.
On 12 February 2009 the Secretary of State wrote to the appellant and informed him of his intention to curtail his leave. The appellant states that he did not receive that letter and so was unable to respond. The Secretary of State then proceeded to curtail the appellant's leave. The appellant appealed out of time against that decision and time was extended.
The central ground of appeal before the Immigration Judge was that, pending the outcome of the Children Act proceedings, it would be in breach of the appellant's private and family life and right to a fair trial (Articles 6 and 8 ECHR) to be frustrated in his attempts to obtain contact with his daughter through the family courts. Detailed grounds of appeal were lodged against that decision and it was listed for hearing. The matter was adjourned on three occasions on account of the fact of the delays in the Family Court. When this matter was listed for hearing on 10 May 2010 a further application for adjournment was made.
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