NF (Ghana) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Rix
Judgment Date30 Jul 2008
Neutral Citation[2008] EWCA Civ 906
Docket NumberCase No: C5/2007/1042

[2008] EWCA Civ 906

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL

SIJ WARR AND IJ BROWN

IM/12825/2006

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Latham

Lord Justice Rix and

Lord Justice Longmore

Case No: C5/2007/1042

Between
NF (Ghana)
Appellant/Claimant
Secretary Of State For The Home Department
Respondent/Defendant

Mr Michael Harris, Miss Roxanne Frantzis (instructed by Messrs Abbot Denton) for the Appellant

Mr Jeremy Hyam (instructed by The Treasury Solicitors) for the Respondent

Hearing dates: Friday 29th February 2008

Tuesday 15 th April 2008

Wednesday 23 rd July 2008

Lord Justice Rix
1

This is the judgment of the court. This appeal concerns the relevance, to a case on article 8 of the European Convention on Human Rights, of the non-statutory policy of the Secretary of State for the Home Department whereby parents without leave to remain in this country but whose children have resided here for more than 7 years might for the sake of their children be allowed to remain here, rather than be removed. The policy, originally known as DP 5/96 and originally speaking to 10 year residence, was amended in 1999 to refer to the current 7 years. It has sometimes been said that the amended policy was redesignated as “DP 69/99” or “DP 069/99” (“DP 69/99”). DP stands for “Deportation Procedure”. Over and above the specific issues that arise in this appeal, an important question has arisen as to the true content and expression of this policy.

2

The criteria laid down in DP 5/96 are neutrally expressed, and DP 5/96 merely states that it is important that a decision either to concede or proceed with enforcement action should be accompanied by full reasons making clear that each case is considered on its individual merits. Save for the amendment replacing 10 years with 7 years, the terms in which what has been described as “DP 69/99” was introduced are a matter of some uncertainty. One version of “DP 69/99” which the Secretary of State originally put before us speaks in terms of enforcement action “not usually” proceeding in the case of a family with a child with 7 years residence in the UK. A press release issued by the Home Office on 1 March 1999 headed “069/99”, referred to (erroneously) as policy “069/99” itself by Moses J in R v. Secretary of State for the Home Department, ex parte Jagot [2000] INLR 501 at paras 29/30, states that “A child who has spent a substantial, formative part of life in the UK should not be uprooted without strong reason”. Moreover, when the so-called “DP 69/99” policy modification was announced by the then Under-Secretary of State for the Home Department, Mr Mike O'Brien MP, in a written answer to a parliamentary question on 24 February 1999, his parliamentary statement included language to the effect that DP 5/96 had been applied so as not to pursue enforcement action “save in very exceptional circumstances” and that a similar policy would continue in relation to the amended period of 7 years so that “In most cases, the ties established by children over this period will outweigh other considerations”: see R (Tozlukaya) v. Secretary of State for the Home Department [2006] EWCA Civ 379, [2006] INLR 354 at para 83.

3

At the close of the hearing, we requested the Secretary of State to provide us with full, original texts of DP 5/96, “DP 69/99”, Mr O'Brien's parliamentary statement and any other explanatory material relevant to the 7-year policy and its exercise by the Secretary of State. Certain documents were subsequently produced which went quite far to elucidate the position but also raised further questions. In the light of those further questions we did not hand down the draft judgment which we had then prepared and distributed, and directed the Secretary of State to explain by affidavit the material discussed in our draft judgment. This the Secretary of State did by means of an affidavit dated 2 May 2008 filed on her behalf by Julia Dolby, a Senior Executive Officer of the Operational Enforcement Policy section of the United Kingdom Border Agency. It is with the help of Ms Dolby's affidavit that the current status of DP5/96 can now be clarified: see below. Full or more substantial texts of these materials appear below.

4

The present appeal raises the single ground of appeal whether the AIT decision of SIJ Warr and IJ Brown dated 27 February 2007 gave proper consideration in the context of article 8 to policy DP 5/96 (and its associated materials) and thus focussed properly on the case of the appellant NF's daughter, Obiagaeli (known as “Obi”), who was born in the UK on 24 December 1998, has lived continuously in this country since then, and was 8 at the time of the hearing before the AIT.

5

There is no disguising the fact that NF, Obi's mother, has an extremely poor immigration history. We take the facts in the main from the AIT decision, which itself incorporates large parts of the findings of an earlier AIT decision of Immigration Judge Beg dated 21 June 2006.

The facts

6

NF was born in Ghana on 24 January 1962. She first arrived in this country on 8 February 1986 and was granted leave to remain for one month. She was then granted further leave to remain as a student until 30 June 1988. A further application for an extension was refused on 27 April 1989. An appeal against that decision was withdrawn by NF on 22 February 1991, and she disappeared from the view of the immigration authorities. In the meantime, she had given birth to her three older children in the UK, Richard, born 16 February 1988, now 20, Rachel, born 16 June 1989, now 18, and Roxanne, born 19 December 1990, now 17. In 1992, they went with their father, a UK citizen of Ghanaian extraction, to live in Ghana. From that time until July 2007 (in circumstances referred to below) she had neither seen them nor had any contact with them.

7

On 9 March 1997 NF attempted to enter France (on route to Canada) using a fraudulent British passport and was deported to Ghana on the same day. Her evidence that she was shocked to discover that her passport was fraudulent was rejected: she had failed to put forward any credible reasons for thinking that it was genuine. She knew that it was not.

8

In June 1997, NF returned to the UK illegally, using an agent to do so. NF met the man who is now her husband, Mr Ogbuehi, in March 1998. He was a Nigerian by birth, and was married at the time to someone else. NF almost immediately became pregnant by Mr Ogbuehi, and on 24 December 1998 Obi was born. There is some uncertainty about Mr Ogbuehi's immigration status in March 1998. He told IJ Beg that he had an outstanding application for leave to remain as the spouse of a person present and settled in the UK, and that that application was granted in 1999. However, the Secretary of State now says that that was not so. Certainly IJ Beg found that he had probably deceived the Home Office in relation to his marriage, in that it was already at that time in difficulties.

9

NF then married a Mr da Costa Moniz: her witness statement that she did so for love was undermined by oral evidence that she had married him so that she could remain in the UK. When she discovered that his Portuguese identity card was a forgery, she divorced him, in 2002. In the meantime she had applied on 15 March 2000 for leave to remain on the basis of this marriage. It was this application which brought her back to the notice of the Home Office. Leave was refused. Her appeal was dismissed.

10

In January 2003 NF married Mr Ogbuehi, who had divorced his former wife in 2002. NF then made a further application to remain, now on the basis of this marriage. This is the application which has given rise to this litigation. The application was refused by the Home Office on the basis that it did not fall within the applicable policy, and also in the light of NF's immigration history: see its letter dated 7 September 2004. NF lodged an appeal.

11

While her appeal was pending, Obi turned seven on 24 December 2005, and on 19 January 2006 her solicitors wrote to the IND to bring this to its attention. The letter ended:

“In the light of your policy on children, we request that you reconsider the whole case on the bases of our client's marriage, long residence and the 7 year policy on children so that if you refuse the application then all matters can be dealt with by the Court at the same time.”

12

The reply is not in our bundles, but the AIT records that the response in March 2006 was negative. Apparently, the Home Office rested on its previous decision letter. On that basis, no specific consideration was given to the position of Obi.

The litigation

13

NF's appeal came before IJ Beg on 12 June 2006. She and her husband gave evidence. NF repeatedly denied that she or her husband had any children other than Obi. In truth, she had the three children who then had long been in Ghana; and Mr Ogbuehi also had a daughter (who lived in Hull) from his former wife, as well as two other daughters in Nigeria. IJ Beg found that NF's blatant lies had cast serious doubt over her overall credibility. NF apologised, saying that she did not think it relevant to mention her older children since she had not seen them in years.

14

Mr Ogbuehi gave evidence about his situation, and his extended family, many of whom were in the UK. He is a solicitor.

15

IJ Beg rejected NF's appeal. She found that her marriage was genuine and subsisting, but that it did not predate the service of an enforcement notice by two years; also that it would not be unreasonable for NF to return to Ghana (to make an...

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