MS (Ivory Coast) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 22 February 2007 |
| Date | 22 February 2007 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Lord Phillips of Worth Matravers (Lord Chief Justice of England and Wales), Scott Baker and Thomas LJJ
Representation
Andrew Nicol QC and Elizabeth Dubicka instructed by Fisher Meredith, for the Claimant;
Charles Bourne instructed by the Treasury Solicitor, for the Secretary of State.
Cases referred to:
Ciliz v The Netherlands2000 ECHR 29192/95
Gedow, Abdulkadir and Mohamed v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 1342
GH v Secretary of State for the Home DepartmentUNK[2005] EWCA Civ 1182; [2006] Imm AR 19; [2006] INLR 26
JM v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 1402; [2007] Imm AR 293; [2006] INLR 548
R v Secretary of State for the Home Department ex parte KhadirUNK[2005] UKHL 39; [2006] 1 AC 207; [2005] INLR 538
R v Secretary of State for the Home Department ex parte Ravichandran; R v Secretary of State for the Home Department ex parte Sandralingam[1996] Imm AR 97
R (on the application of the Secretary of State for the Home Department) v Immigration Appeal Tribunal; R (on the application of Hwez) v Secretary of State for the Home Department & an AdjudicatorUNK[2001] EWHC Admin 1067; [2002] Imm AR 491; [2002] INLR 116
S and Others v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 1157; [2006] INLR 575
Saad, Diriye and Osorio v Secretary of State for the Home DepartmentUNK[2001] EWCA Civ 2008; [2002] Imm AR 471; [2002] INLR 34
Szoma v Secretary of State for Work and PensionsUNK[2005] UKHL 64; [2006] 1 AC 564; [2006] Imm AR 48; [2006] INLR 88
Human rights Article 8 of the ECHR outstanding contact application undertaking by Secretary of State not to remove Tribunal must determine Article 8 claim based on hypothetical removal at date of hearing Human Rights Act 1998 section 6 procedure and process Home Office procedures undertaking not to remove Claimant while contact proceedings pending Tribunal cannot rely on undertaking
The Claimant, a citizen of the Ivory Coast, had arrived in the United Kingdom in March 1994. She was refused leave to enter and thereafter remained in the United Kingdom on temporary admission. Following the birth of twin children and the breakdown of her marriage in August 1995, the Claimant began to suffer from mental health problems. Her children were taken into care after she was arrested and charged with six offences of grievous bodily harm, one of actual bodily harm and one of cruelty towards them. In 1999 the Claimant was convicted of these offences and sentenced to three years' imprisonment. During this time her ex-husband resumed contact with the children and following his subsequent marriage to an EEA national the twins were granted residence permits. On her release from prison, the Claimant unsuccessfully applied for a contact order. In early 2003 the Claimant made further representations to the Secretary of State for the Home Department based on Articles 3 and 8 of the ECHR. These representations were rejected by letter of 10 June 2003, in a decision which constituted a refusal of leave to enter the United Kingdom.* The Claimant appealed to an Adjudicator against the Secretary of State's decision. At the hearing before the Adjudicator, the Claimant's representative indicated that fresh contact proceedings were to be launched. In a decision promulgated on 27 July 2004, the Adjudicator allowed the appeal on Article 8 grounds only but left it to the Secretary of State to decide how to give effect to the decision. The Secretary of State appealed to the Immigration Appeal Tribunal and the Claimant filed a Respondent's Notice. Under the transitional provisions the appeal was heard as a reconsideration by the Asylum and Immigration Tribunal. The Tribunal found a material error of law in the Adjudicator's decision but adjourned full reconsideration pending the outcome of the Claimant's contact proceedings. The
contact proceedings were not resolved and in April 2006 the Tribunal proceeded to hear the Secretary of State's appeal. The Secretary of State provided an undertaking that no removal directions would be given so long as the contact proceedings were prosecuted with due diligence (the undertaking). The Tribunal found that the Claimant's Article 8 rights were adequately protected by the undertaking and substituted a decision dismissing the Claimant's appeal against the Secretary of State's decision. The Claimant appealed to the Court of Appeal on the ground that the Tribunal's decision deprived her of the benefits of discretionary leave to remainHeld, allowing the appeal and remitting the case to the Asylum and Immigration Tribunal:
(1) the Claimant had been entitled to have determined whether removal from the United Kingdom with an outstanding contact application would have violated Article 8 of the ECHR and thus put the Secretary of State in breach of s 6 of the Human Rights Act 1998 (the 1998 Act); that question had been capable of resolution one way or the other, and it was not appropriate for the Claimant to be left in the United Kingdom in limbo with temporary admission and an undertaking not to remove her until her contact application was concluded (para 72);
(2) it had therefore been incumbent on the Tribunal to decide whether the Claimant's removal on the facts as they were when it heard the appeal would have violated Article 8 of the ECHR and put the Secretary of State in breach of s 6 of the 1998 Act: R v Secretary of State for the Home Department ex parte Ravichandran (No 1) [1996] Imm AR 97, Saad & Ors v Secretary of State for the Home DepartmentUNK[2001] EWCA Civ 2008 and R (on the application of Secretary of State for the Home Department) v Immigration Appeal Tribunal[2002] INLR 116 applied; it had not been open to the Tribunal to rely on the undertaking by the Secretary of State (paras 5563, 70 and 75);
(3) if the Tribunal had decided the question it should have concluded that the Claimant's Article 8 rights would have been violated by her removal; the next question would have been the length of discretionary leave to remain that would have been appropriate as the Tribunal had jurisdiction under s 87 of the Nationality, Immigration and Asylum Act 2002 to decide that issue; alternatively, the Tribunal could have remitted that question to the Secretary of State (paras 70 and 75);
(4) in the circumstances, the correct course was to remit the case to the Tribunal for it to decide on the evidence before it whether the Claimant's removal would violate Article 8 of the ECHR and, if so, the appropriate period of discretionary leave to remain; for these purposes the Tribunal should be given full information about the up-to-date position of any contact proceedings (paras 76 and 78);
(5) while the authorities demonstrated that the decision-maker was, to an extent, required to consider a hypothetical situation, it was neither required nor was it appropriate to speculate about the future; thus questions about what could happen, for example, to the Claimant's mental health in circumstances as yet unknown were irrelevant to the Tribunal's determination (para 71);
(6) (per curiam) if circumstances arose where a contact hearing was likely to be resolved in, for example, a matter of days, it would be impractical to expect a human rights decision without knowing the outcome of that application; this was the kind of situation that could be dealt with by appropriate case management (para 73).
Lord Justice Scott Baker:
This is the judgment of the court.
[1] 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.
[2] 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).
[3] 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.
[4] 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.
[5] 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.
[6] 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.
[7] On 6 August 1995 she gave birth to twins, L and S. They are now 11/2. She began to suffer mental health problems.
[8] Her asylum application was refused on 30 October 1996. She appealed but the appeal was dismissed in her absence on 31 July 1998.
[9] 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...
To continue reading
Request your trial
-
CJ (Family Proceedings and Deportation) South Africa
...— discretionary leave) Morocco [2010] UKUT 439 (IAC) MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133; [2007] Imm AR 538; [2007] INLR 513 NA (Pakistan) v Secretary of State for the Home Department; Secretary of State for the Home Department v KJ (Angola), WM......
-
R (Mirza and Others) v Secretary of State for the Home Department
...EWCA Civ 1402; [2007] Imm AR 293; [2006] INLR 548 MS (Ivory Coast) v Secretary of State for the Home DepartmentUNK [2007] EWCA Civ 133; [2007] Imm AR 538; [2007] INLR 513 R (on the application of Daley-Murdock) v Secretary of State for the Home DepartmentUNK [2011] EWCA Civ 161; [2011] Imm ......
-
Mohan v Secretary of State for the Home Department
...leave) Morocco [2010] UKUT 439 (IAC) MS (Ivory Coast) v Secretary of State for the Home DepartmentUNK [2007] EWCA Civ 133; [2007] Imm AR 538; [2007] INLR 513 Nimako-Boateng (residence orders—Anton considered) [2012] UKUT 216 (IAC) R v Secretary of State for the Home Department ex parte Razg......
-
R Osman Omar v Secretary of State for the Home Department
...EWCA Civ 1402; [2007] Imm AR 293; [2006] INLR 548 MS (Ivory Coast) v Secretary of State for the Home DepartmentUNK [2007] EWCA Civ 133; [2007] Imm AR 538; [2007] INLR 513 QB v Secretary of State for the Home DepartmentUNK [2010] EWHC 483 (Admin) R v BBC ex parte Quintavelle (1998) 10 Admin ......