Mohan v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Stanley Burnton,Sir Stephen Sedley |
| Judgment Date | 23 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1363 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 October 2012 |
| Docket Number | Case No: C5/2011/2561 |
[2012] EWCA Civ 1363
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
REF: DA0/0558/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Stanley Burnton
and
Sir Stephen Sedley
Case No: C5/2011/2561
Mr Adrian Berry (instructed by Messrs Wilson Barca) for the Appellant
Miss Deok Joo Rhee (instructed by Treasury Solicitor) for the Respondent
Hearing date : 17 July 2012
The issue on this appeal is the relationship between the "automatic deportation" of a foreign criminal pursuant to section 32(5) of the UK Borders Act 2007 and Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), particularly where the Secretary of State seeks to deport at a time when the deportee is engaged in family proceedings in this country concerning the best interests of his child. A brief exposition of the facts will illustrate the problem. Rhomaine M is a Jamaican national, now aged 32. He first arrived in the United Kingdom on 18 May 2000 when he was granted leave to enter as a visitor for one month. Thereafter he remained as an overstayer and he has been in this country without status at all times, apart from a period of three months in 2006. His then partner, Colleen Martin, gave birth to their daughter, Taylor-Lei ("Taylor") on 29 August 2001. On 11 November 2004 Mr M applied for leave to remain on the basis of his marriage to Colleen but this was refused. His relationship with Colleen came to an end and he commenced a relationship with his current partner Nadine. On 17 November 2005, Nadine gave birth to Mr M's second child. However, on 3 June 2006 he was removed to Jamaica as an overstayer. Three months later he returned to this country using a false passport and he has been here ever since. On 22 August 2006 he was imprisoned for 10 weeks for driving offences and illegal entry. On his release from prison he applied for leave to remain on the basis of his relationship with Nadine. That was refused on 10 January 2008 which decision was confirmed notwithstanding legal challenges. On 25 May 2008 Nadine gave birth to Mr M's third daughter, Tahlia. On 24 July 2009 he was convicted at Croydon Crown Court of possession of a class A controlled drug with intent to supply. He was sentenced to 30 months imprisonment with a consecutive sentence of 16 weeks, being the activation of a suspended sentence which had been imposed previously for further driving offences. He thus became liable to automatic deportation and an order was made against him to that effect on 16 June 2010. He appealed against it but the First-tier Tribunal dismissed his appeal on 13 October 2010. Following the identification of an error of law in the decision of the First-tier Tribunal, the Upper Tribunal reheard the appeal but dismissed it on 15 August 2011. The appeal to this Court is against that decision.
It is now necessary to weave the history of the family proceedings into the immigration history. On 11 June 2008, that is to say shortly after the birth of Tahlia, Mr M applied for a residence order in respect of Taylor in family proceedings arising out of his marriage to Colleen. Those proceedings remained extant when he was arrested for the drugs offence in June 2009. Soon after he received the sentence of imprisonment, the County Court adjourned the family proceedings generally with liberty to restore. By that time, Mr M was serving a prison sentence and was not in a position to pursue an application for a residence order. Notwithstanding his lamentable immigration history and the seriousness of his criminality, the Upper Tribunal accepted that he is a caring and loving father to all three of his daughters. It also accepted that Colleen is an irresponsible and selfish mother who puts her own interests and enjoyment above the needs and welfare of Taylor. The Upper Tribunal also formed a very favourable impression of Nadine, referring to "a generosity of spirit which may fairly be regarded as remarkable" in that she has displayed "a commendable degree of concern and care for Taylor which appears on the face of it to be sadly lacking in Taylor's own mother". Although Taylor continues to live with her own mother, there has been regular contact between the child, Mr M, Nadine and their two children. In the words of the Upper Tribunal:
"…they are all on close and affectionate terms even though they do not actually live together, and have never lived together in the same household."
The family proceedings concerning the welfare of Taylor, who is now aged 10, remain unresolved. This gives rise to the tension between automatic deportation and Article 8 rights which are sought to be raised in the family proceedings. If he is deported at this stage, Mr M will undoubtedly be disadvantaged in his pursuit of those proceedings. Moreover, Nadine and Mr M's second and third daughters would remain in this country.
The decision of the Upper Tribunal
The Upper Tribunal considered Mr M's appeal on three grounds. Because of the structure of the decision, it is necessary to describe its elements sequentially. First, consideration was given to the question whether removal from the United Kingdom would involve a breach of Mr M's Article 8 rights, ignoring the complication of the family proceedings. As to this, the Upper Tribunal set out the approach enjoined by R (Razgar) v Secretary of State for the Home Department, [2004] UKHL 27, [2004] 2 AC 368 took account of the later decisions in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, [2009] 1 AC 39 and ZH (Tanzania) v Secretary of State for the Home Department; [2011] UKSC 4, [2011] 2 AC 166 set out the various factors favouring and weighing against deportation and concluded:
"36. It is impossible not to have a considerable measure of sympathy for the appellant's children, particularly Taylor who has exhibited behavioural difficulties … and who has had an unhappy upbringing to date, partly because of her father's law breaking and partly because of her mother's feckless and irresponsible behaviour. The effect of the appellant's removal on his other two children and on his partner must also be taken into account, albeit that they do not exhibit the same degree of concern as that relating to Taylor.
37. Nevertheless, when the best interests of the appellant's children are taken properly into account together with the other factors weighing in his favour …, and when those factors are balanced against the legitimate and weighty public interest …, I am satisfied that on the facts of the appellant's case, the balance comes down against him. I therefore find against the appellant in relation to his Article 8 claim."
Secondly, the Upper Tribunal addressed a submission that to remove Mr M from the United Kingdom would constitute a breach of EU law in the light of the judgment of the Court of Justice of the European Union in Zambrano v Office National de L'Emploi (2011) CJEU Case C-34/09. This submission was rejected by the tribunal and it is no longer an issue before this court.
Thirdly, the Upper Tribunal considered as a separate issue the question whether deportation would infringe Mr M's Article 6 and Article 8 rights, having regard to the unfinished family proceedings and the welfare of Taylor. The Upper Tribunal concluded:
"47. …I am not persuaded that the appeal should be allowed under either Article 6 or Article 8 pending the outcome of the Children Act proceedings which the appellant has initiated. The evidence shows that those proceedings were started as long ago as June 2008. They were then allowed to remain dormant for some three years. It is only now that the appellant has belatedly taken any steps to revive them, clearly with the intention of delaying or preventing his removal from the United Kingdom. He had ample opportunity to do so previously, not withstanding the practical difficulties which his imprisonment and detention have no doubt caused in that respect. His prospect of succeeding in those proceedings would clearly be enhanced significantly if he were now allowed to remain in the United Kingdom, particularly if he were allowed to do so on an indefinite basis. Conversely, his prospects of success would be reduced considerably, if not indeed extinguished altogether, if he were to be deported to Jamaica instead. However, that is a matter for the court dealing with the Children Act application to take into account when reaching its decision. The fact that the appellant did not pursue his application for the last three years, but to allow it to remain dormant instead, is not in my assessment sufficient to show that it would constitute a breach of his human rights, either under Article 6 or Article 8 to remove him from the United Kingdom now even though the outcome of those proceedings remains unresolved. Even if I were persuaded to allow the appeal so as to enable a short period of discretionary leave to be granted by the respondent …, the reality remains that that would be likely to prove no more than a short term relief from the appellant's point of view. The court considering the application would undoubtedly have to made aware, if indeed it has not already been made aware that the appellant is still facing the real prospect of deportation from the United Kingdom with the concomitant inability to return, at least legally whilst the deportation order remains unrevoked for a...
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