Nimako-Boateng v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake,McFarlane,Martin |
| Judgment Date | 22 May 2012 |
| Neutral Citation | [2012] UKUT 216 (IAC) |
| Date | 22 May 2012 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2012] UKUT 216 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
LORD JUSTICE McFarlane
Mr Justice Blake, PRESIDENT
UPPER TRIBUNAL Judge Martin
For the Appellant: Mr S. Hourigan instructed by Time Solicitors
For the Respondent: Mr G Saunders, Senior Home Office Presenting Officer
Nimako-Boateng (residence orders — Anton considered)
A residence order or prohibited steps order made by a judge of the family court under s.8 of the Children Act 1998 do not bind the Secretary of State for the Home Department.
The decisions of family courts in respect of the welfare and best interest of children are important sources of information for judges considering immigration appeals. If an appellant wishes to advance a case that the child's welfare will be jeopardised by removal because it would break up existing patterns of contact with another parent or relative, one would expect to see clear and reliable evidence submitted to that effect. See RS (immigration and family court proceedings) India [2012] UKUT 00218 (IAC).
We direct that IA's name and identity be not disclosed in any report of these proceedings without leave of the Tribunal or further order.
All members of the panel have participated in the making of this determination. The first appellant is a national of Ghana who states she was born there in November 1974. The second appellant is her daughter who we shall refer to as IA who was born in the United Kingdom on 18 May 2002 to a man called NA whose nationality and immigration status are uncertain.
This is the hearing of the appellants' appeal from a decision of Immigration Judge Hanratty given on the 10 November 2010. In that decision the judge dismissed their appeal from a decision of the respondent dated 28 January 2010 refusing their application for a document confirming that they had a permanent right of residence as family members of an EEA national under regulation 18 of the Immigration (European Economic Area) Regulations 2006.
A notice under s.120 of the Nationality Immigration and Asylum Act 2002 was served on the appellants. They appealed the decision contending they were entitled to the right of permanent residence as claimed. They subsequently abandoned this claim but contended that the removal decision that the respondent had indicated would be made against them if their appeal failed would be unlawful because it would breach their human rights under Article 8 ECHR.
In this roundabout way, the Article 8 ECHR question came before the Immigration Judge and he dismissed the appellants' contention that it would be contrary to their human rights if they were returned to Ghana. No immigration decision to remove the mother or daughter has yet been taken.
Permission to appeal was sought alleging that the Judge had made an error of law in the Article 8 assessment and permission to appeal to the Upper Tribunal was granted on a single point, namely whether the judge had properly taken account of the consequences of an order made in the Principal Registry of the Family Division.
Two orders were made in proceedings that the first appellant had instituted against NA in early 2010. The first was a prohibited steps order made under s.8 of the Children Act 1989 on 27 April 2010 in the following terms:
without the written consent of the Applicant or the consent of the Court”.
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“the Respondent [NA] must not remove the child [IA] (date of birth 18 May 2002)..
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a) from England and Wales;
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b) from the care of the Applicant, except for such contact as the parties may agree in writing or as may be ordered by the Court;
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c) from her school…
On 27 July 2010, a judge of the same court made a residence order under s.8 of the Children Act 1989 that the child IA resides with her mother. The form of order contained a statutory warning pursuant to s. 13(i)(b) of the Children Act 1989 with the warning notice attached:
“Where a residence Order is in force no person may …remove the child from the United Kingdom without the written consent of every person with parental responsibility for the child or the leave of the court”.
The first appellant has a remarkable history of deception relating to her entry to and residence in the United Kingdom from 1998 to 2010. Her name at birth was Eleanor Holm. In 1998 she applied for a student visa that was refused. She then applied using the name Salome to come to the United Kingdom as a visitor. Her purpose was said to be to visit her then boyfriend, NA.
In 1999 she came to the United Kingdom but was subsequently removed. She then returned in 2001 using another assumed name Vanessa Nimako-Boateng, that has been her identity until quite recently. She was given leave to enter as an accountancy student and such leave was extended to 2002. She then remained without leave. By reason of the use of the false name and the suppression of her adverse immigration history she was and remains an illegal entrant liable to summary removal as such under the Immigration Act 1971 Schedule 2 paragraph 9 and since the expiry of her leave to remain she has also been liable to summary removal under s. 10(1) of the Immigration and Asylum Act 1999.
In June 2003 she applied for a residence card as the spouse of a Dutch national Cedric Juliana (hereafter Cedric). She claimed to have married Cedric in December 2001 in Ghana and produced a passport, Ghanaian marriage certificate and employment documents in Cedric's name to support that claim. In July 2004 a five year residence card was issued on the basis of this claimed marriage. In November 2008 she procured from Barnet County Court the dissolution of this marriage on the grounds of Cedric's alleged violent behaviour towards her.
In May 2009 she applied to the UKBA for permanent residence as the former spouse of Cedric. She contended that she had the retained right of residence on her divorce in November 2008 because the marriage had lasted three years and Cedric was a qualified person (in this case an EU national who was working in the United Kingdom) immediately preceding the divorce and that the material requirements of regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 were met. She contended that as she had completed a period of five years lawful residence as the spouse and former spouse of a qualified person, she was entitled to a permanent right of residence.
It was this application that was refused in January 2010 on the basis of an absence of supporting evidence. One month after the refusal decision NA wrote a letter to the respondent revealing the first appellant's immigration history summarised above at [8] to [11] and further disclosing that the whole EEA application was founded on a stolen Dutch passport supplied by a friend of hers and impersonation of Cedric by another friend. The letter stated that there was never any marriage to Cedric and the Ghanaian certificate was a fake one. The letter concluded:
“I am writing this letter because I am the father of [IA] (date of birth 18/05/2002) and I am going back to Ghana to live there. I want my child to go with me to Ghana where the rest of my family are. She is trying to use my status in the Country as a British citizen to get her stay using my daughter. She and her Lawyers have been threatening me in no uncertain terms that I would loose (sic) my child if I do not help with copies of my passport which I refused”.
According to the first appellant 1 she became aware of this letter on 7 April 2010 and it was in response to it that the proceedings were issued in the Principal Registry that led to the orders made in April and July.
The EEA appeal first came before the First-tier Tribunal on 7 June 2010 when it was adjourned pending further inquiries into NA's letter. At this first hearing the first appellant produced the prohibited steps order from the Principal Registry noted at [6] above.
By the time the appeal came to be heard in November 2010, the first appellant had admitted her history of deception outlined above and abandoned her claim to be entitled to a permanent residence document. She nevertheless contended that it would be contrary to IA's interests for her to leave the United Kingdom where she had lived all of her life and be removed to Ghana along with her mother. Reference was made to the residence order of July 2010 and the previous Home Office policy withdrawn in 2009 whereby seven years residence by a child was a presumptive basis to regularise the status of the mother, absent compelling reasons to the contrary.
Having summarised the history and the submissions of the parties, and the leading guidance on Article 8 cases then available to him, the judge concluded:
“55. Balancing all these matters in relation to the principal appellant Ms Holmes and looking at her private life (I shall come to IA later) I find that this appellant should not be in the country at all. She has employed sophisticated and deliberate deception almost certainly amounting to criminal conduct. She has certainly perverted the administration of justice. She has admitted doing so. I do recognise that she has enjoyed a private and family life in the UK. But I find in relation to her private life that has been obtained in the country by means of systematic and sophisticated deception…For this appellant to be allowed to stay in the UK applying Article 8 ECHR would indeed drive a coach and horses through effective immigration control in this country and encourage others to engage in similar abuses, which are matters to be taken into account as regards proportionality”.
The judge then...
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