MS (Ivory Coast) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker |
| Judgment Date | 22 February 2007 |
| Neutral Citation | [2007] EWCA Civ 133 |
| Docket Number | Case No: C5/2006/1582/AITRF |
| Court | Court of Appeal (Civil Division) |
| Date | 22 February 2007 |
[2007] EWCA Civ 133
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE AYSLUM AND IMMIGRATION TRIBUNAL
HR002872004
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Chief Justice of England & Wales
Lord Justice Scott Baker and
Lord Justice Thomas
Case No: C5/2006/1582/AITRF
Andrew Nicol Q.C and Elizabeth Dubicka (instructed by Fisher Meredith) for the Appellant
Charles Bourne (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 29 January 2007
This is the judgment of the court.
MS, the appellant, appeals with the permission of Neuberger LJ against a decision of the Asylum and Immigration Tribunal (“AIT”) on 9 May 2006. The AIT had allowed her appeal against the refusal of the respondent Secretary of State to accept that her removal from the United Kingdom would breach her Article 8 rights.
The appellant describes the question raised by this appeal as whether the AIT is obliged to determine a human rights appeal by reference to a hypothetical removal from the United Kingdom at the time of the hearing even though the Secretary of State has no immediate intention to remove the appellant; or whether the position should be considered as at the time when removal is likely to take place. More specifically, is an undertaking by the Secretary of State not to remove the appellant pending the outcome of contact proceedings (provided they are pursued expeditiously) an answer to her claim under Article 8 of the European Convention on Human Rights (“ECHR”).
Background.
There is a good deal of background history in this case that is of no direct relevance to the present appeal. In particular the appellant has made a failed asylum claim. It is, however, necessary to describe something of the history. The appellant is 38. She was born in 1968 in the Ivory Coast. Her family was involved in the Ivoirean People's Front Party. Her father was arrested and imprisoned several times.
She was educated in Abidjan from the age of 7. She had a daughter by her first husband in 1987. The marriage did not last and she married again. Her second husband was SG.
On 3 March 1994 she arrived in the United Kingdom but was refused leave to enter. She sought asylum 5 days later on 8 March.
On 4 August 1994 her husband, Mr SG, arrived to join her. His application for asylum was refused on 16 June 1995. The marriage came to an end on 4 August 1995 and they subsequently divorced.
On 6 August 1995 she gave birth to twins, L and S. They are now 11 1/2. She began to suffer mental health problems.
Her asylum application was refused on 30 October 1996. She appealed but the appeal was dismissed in her absence on 31 July 1998.
In the meantime, her children had been taken into care and she had been arrested and charged with six offences of grievous bodily harm, one of actual bodily harm and one of cruelty towards them. Her husband had resumed contact with the twins and was granted a residence order in 1998. He and they were later granted residence permits on the basis of his subsequent marriage to a European Economic Area national.
On 4 January 1999 the appellant was convicted and sentenced to three years imprisonment for the offences to which we have referred. Whilst in prison she received some visits from the twins. Around this time she learned that her mother and elder daughter had been drowned off the African coast.
In February 2000 she made further representations for asylum to the Secretary of State. After her release from prison on 3 June 2000 she remained in immigration detention. She applied for exceptional leave to remain so as to pursue a contact order with her children. She continued to have some contact with them until August 2000.
On 20 June 2000 the respondent refused her application and set removal directions for 27 June. She sought judicial review of the proposed removal arguing there would be breaches of Articles 6 and 8 of the ECHR if she was removed prior to determination of her contact application. She was granted bail. Her contact application was dismissed on 18 October 2001 when she failed to appear, having previously failed to attend appointments with the consultant psychiatrist who was to report to the court.
On 23 January 2002 her renewed application for leave to apply for judicial review was finally rejected by the Court of Appeal.
In early 2003 she made further representations to the respondent based on Articles 3 and 8 of the ECHR. These representations were rejected by letter of 10 June 2003. This letter records: “the Secretary of State … is satisfied that your client's removal does not breach the European Convention of Human Rights.” and a little later, “your application for leave to remain is therefore refused and is hereby recorded as being determined on 10 June 2003.” However expressed in the letter, it is nevertheless common ground that the decision was a refusal of leave to enter the United Kingdom. This is the underlying decision to which the present appeal relates. The appellant appealed against the respondent's decision. The appeal came on for hearing before an adjudicator (Mr Dawson) on 13 July 2004. At about the same time the appellant's solicitors indicated that fresh contact proceedings were to be launched. The adjudicator allowed the appeal on Article 8 grounds. His decision was promulgated on 27 July 2004. He rejected her appeal on all the other grounds.
The adjudicator decided:
• The appellant had established a private life in the United Kingdom. This was inevitable having been here since 1994.
• She had not seen her children for four years and did not have family life with them.
• It was her ambition to renew contact. Removal would frustrate and interfere with attempts to renew family life. In practical terms she could not prosecute a claim from abroad from Abidjan. The respondent had misunderstood the application of paragraph 246 of the Immigration Rules (which relates to applying for entry clearance from abroad).
• The respondent had misapplied the proportionality test and he (the adjudicator) “did not think it would be proportionate for her to be removed at this stage.”
The adjudicator said that removal would take away the last chance the appellant had of resolving much of what had been troubling her. Removal would result in a serious decline in her mental health. He considered that her endeavours to establish contact with her children were a legitimate expression of her right to private life coupled with access to continued psychiatric help. He said that having allowed the appeal it would be for the Home Office to decide how to give effect to his decision. But at the very least he considered there should be a reprieve from removal to give the appellant an opportunity to prosecute an application for a contact order within a reasonable period of time.
The respondent appealed to the AIT and the appellant put in a respondent's notice. On 19 April 2005 the AIT concluded that the adjudicator had made a material error of law as follows:
(a) He ought to have given some consideration to the history of the appellant's claim (pursued or not) for contact with her children since her release from immigration detention in November 2000.
(b) On how far the appellant would be able to pursue such an application from overseas he:
(1) applied the wrong standard of proof;
(2) failed to cite any evidence to support his decision.
Under the transitional provisions in Schedule 2 Part 2 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 the appeal proceeded as if it were a reconsideration following review by the AIT. On 26 August 2005 it resolved various issues that are irrelevant to the present appeal and adjourned full reconsideration of the appellant's Article 8 case on her wish for contact with her children in this country. Its original intention had been to conclude the matter at the hearing on 26 August 2005. However, the appellant's contact proceedings had not progressed because the father's whereabouts were unknown. An address for service was eventually obtained and a directions hearing in the contact proceedings fixed for September 2005, at which it was anticipated the father's attitude to contact would be known and a CAFCASS report would, if necessary, be ordered.
In the meantime, contact proceedings having been issued, on 15 July 2005 District Judge Redgrave had refused to give a certificate under paragraph 246 of the Immigration Rules. (This is a certificate that the person concerned intends to pursue an application for contact; either such a certificate or a contact order is a necessary prerequisite for entry clearance to come to this country for the purposes of contact).
At the hearing before District Judge Cushing on 15 September 2005 it was agreed that a CAFCASS report was not needed because an expert's report was to be obtained from Dr Judith Freedman of the Portman Clinic. This, however, would take some time to prepare. The father's position at this stage was that he would not oppose contact.
The contact proceedings came before Coleridge J on 6 February 2006. The father was no longer publicly funded and it had not been possible to agree a joint letter of instruction for Dr Freedman. Dr Freedman said she would be unlikely to report before the end of June. It was unclear how many meetings she would need. The parties were given until the end of February to agree a joint letter of instruction. All this caused delay in...
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