Mohammed (Family Court Proceedings - Outcome)
| Jurisdiction | UK Non-devolved |
| Judge | Storey,Perkins,Storey UTJ,Perkins UTJ |
| Judgment Date | 05 September 2014 |
| Neutral Citation | [2014] UKUT 419 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 05 September 2014 |
[2014] UKUT 419 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Storey
UPPER TRIBUNAL JUDGE Perkins
For the Appellant: Mr A Sesay, Solicitor, Duncan Lewis & Co Solicitors
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer
Mohammed (Family Court proceedings-outcome)
Whilst it may be that in the Family Court jurisdiction prior to the coming into force on 22 April 2014 of the Children and Families Act 2014 there was always the possibility of a parent making a fresh application relating to contact, there is nothing in the guidance given in RS (Immigration and Family Court ) India [2012] UKUT 00218 (IAC) (which was approved by the Court of Appeal in Mohan v Secretary of State for the Home Department [2012] EWCA Civ 1363 ) that supports the notion that the mere possibility of such an application being made (or pursued) is a relevant criterion in the case of an immigration appeal when deciding whether to adjourn an appeal or to direct a grant of discretionary leave in order for such proceedings to be pursued. The guidance is concerned with whether there is a realistic prospect of the Family Court making a decision that will have a material impact on the relationship between a child and the parent facing immigration measures such as deportation.
The appellant is a national of Ethiopia. He appeals with permission against a decision of a First-tier Tribunal (FtT) panel (Judge Hembrough sitting with Dr Barros) sent on 29 May 2014 dismissing his appeal against a decision made by the respondent to make an order to deport him as a foreign criminal pursuant to s.32(5) of the UK Borders Act 2007. In this determination we have anonymised details of the appellant's partner and his child, but see no reason to do in respect of the appellant.
The appellant came to the UK in April 2005 and claimed asylum in May the same year. His claim was rejected and his appeal against the rejection was dismissed by an Immigration Judge in November 2005. He then remained in the UK unlawfully. On 30 November 2008 he made further representations based on human rights grounds. By that time he had begun to commit a series of criminal offences, totalling 22, between July 2008 and June 2011, including several convictions for violence and one for the supply of drugs including Class A. On 17 April 2012 he had been sentenced to 30 months' imprisonment after he pleaded guilty to an offence of burglary of a dwelling house. On 30 April 2012 he was notified of his liability to deportation and then on 6 December 2012 of the decision ordering his deportation.
In its determination the FtT recorded that the appellant had requested an adjournment. The appellant referred to the history of Family Court proceedings relating to his daughter K and the fact that the last order made by that court (the Belfast Family Proceedings Court) was on 11 December 2013 when it ordered that the appellant be given indirect contact with K. The appellant said he wished to obtain further up-to-date information about K's situation. The panel concluded that it had sufficient information about K's situation to proceed.
At paras 51-58 the panel found:
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“51. We accept the evidence that despite the difficulty of his relationship with Ms S and his intermittent incarceration the appellant has endeavoured to build a relationship with K. We have noted that he first initiated contact proceedings against Ms S in 2010 and that his subsequent intervention in the care proceedings resulted in an order that he be allowed indirect contact.
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52. However the evidence is that K is the subject of a Full Care Order and for so long as it remains extant parental responsibility is vested in Belfast Health and Social Care Trust (the Trust). The appellant has never lived with K as part of a family unit and in his evidence he accepted that it was unlikely that he would so in the future. The more so as it has been deemed to be in her best interests that she should live with her sister J with whom the appellant has no relationship whatsoever. The appellant's long term aspiration was that he should be given direct contact with K when he had sorted his life out and proved himself.
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53. That the appellant only has indirect contact with K we find to indicate that both the Trust and the Family Court do not consider that the absence of direct contact to be prejudicial to her welfare. We also note that as recently as July 2013 K's care plan was adoption. This would indicate that the Trust, which is charged with her welfare, is of the view that her best interests would be served by terminating her parental relationship with the appellant altogether.
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54. Since he was sent to prison in April 2012 the appellant has been a peripheral figure in K's life and the reality we find is that he is likely to remain so. We are satisfied that his deportation to Ethiopia will not prevent him from maintaining indirect contact with K via the use of modern communication media such as Skype and Facebook should the trust and the Family Court deem it appropriate. As we have already noted, it would appear that he maintains contact with friends in Ethiopia in like manner.
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55. Although we accept that the appellant's deportation will effectively put paid to the prospect of direct contact in the future, on the evidence before us we have not been satisfied to the required standard that this would be prejudicial to K's welfare or development in the short, medium or long term.
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56. Ultimately we have to balance the interference in the appellant's relationship with his child against the public interest in his removal. Although we did not have the benefit of a pre-sentence or OASys Report the judge's sentencing remarks record that the appellant was assessed as having a high likelihood of further offending and has failed to understand the impact of his behaviour on others. Given that he has several convictions for violence and the supply of drugs including Class A, we conduct that the risk to the public as being at least medium.
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57. We also note that even whilst pursuing contact proceedings through the courts in 2010 he continued to commit a range of offences including violence and the possession of drugs. Indeed given the range of offences of which he was convicted we find his explanation of his offending behaviour that he was forced to sell goods on the street and did not appreciate that some of them were stolen to be indicative of a failure to come to terms with his offending behaviour. It would seem that he is still some way from sorting his life out and proving himself.
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58. Looking at all the evidence before us in the round and giving appropriate weight to the will of Parliament that foreign criminals should be deported and noting that the sentence imposed for the index offence was 2.5 times the threshold for expulsion we have not been satisfied that the deportation of this appellant would place the United Kingdom in breach of its obligations under Article 8 ECHR or section 55 of the Borders, Citizenship and Immigration Act 2009.”
Earlier, at para 12 the panel had noted that:
“… on the appeal file there was an email dated 8 July 2013 from Lawrence O'Kane who is a social worker involved in the care proceedings which stated that K was the subject of a Full Care Order and that her care plan was adoption. In response to our enquiry as to whether she was going to be the subject of an adoption order Ms Gunomai [who represented the appellant] said she had no information.”
The grounds of appeal were essentially three-fold. The first alleged procedural unfairness. It is stated that an adjournment was requested at the hearing on the basis that the appellant's representatives had not had sight of this email from Mr O'Kane and that this was something about which they needed time to obtain further instructions. Given that the panel did not have the care plan before then, it was said that it was impossible for it to make a fair or rational decision about the appellant's plan in respect of his daughter:
“T[he] representatives were not afforded the adjournment to be able to take full instructions and obtain full documents from the family solicitor. The representatives that handled the appellant's immigration [case] previously were in Belfast and the present representatives were not sent the respondent's bundle of papers handed to them in court. The panel were aware of this as well.”
At the end of the hearing we said we would check the file to locate the email from the social worker and send it to the parties for any comments. We return to this matter below.
Second, it was submitted that the panel erred in not analysing the appellant's evidence in relation to his contact application and Article 8 and in failing to explain sufficiently why it had concluded that the best interests of the appellant's daughter lay in her remaining with her sister. “The panel had not explained sufficiently why her father [with] whom she has contact should not be in her life”. Following RS (Immigration and Family Court) India [2012] UKUT 00218 (IAC), the panel should have allowed the Article 8 appeal and directed a grant of Discretionary Leave pending the resolution of the appellant's contact matter. Contact proceedings were initiated to promote the child's welfare; her mother had not challenged that contact; it was envisaged that ultimately the court would grant full contact with his daughter if he was allowed to remain in the UK. It was...
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