R Hs and Others v The Upper Tribunal (Immigration and Asylum Chamber), Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeCharles J
Judgment Date28 November 2012
Neutral Citation[2012] EWHC 3126 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date28 November 2012
Docket NumberCase No: CO/6311/2011

[2012] EWHC 3126 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL


Mr Justice Charles

Case No: CO/6311/2011

The Queen on the application of Hs and Others
The Upper Tribunal (Immigration and Asylum Chamber)
Secretary of State for the Home Department
Interested Party

Catherine Meredith (instructed by Ty Arian) for the Claimant

Mona Bayoumi (instructed by Treasury Solicitor) for the Interested Party

Hearing dates: 30 May and 17 July 2012

Charles J

General Introduction


HS, who I shall refer to as the Claimant, and her two children, seek a judicial review of the decision of the Defendant (the UT) made by Senior Immigration Judge Warr, and dated 4 April 2011, (the Decision of the UT refusing permission to appeal) by which the UT refused to give her permission to appeal a decision of Immigration Judge Crawshay promulgated on 21 February 2011 (the Immigration Appeal Decision). When I refer to arguments being advanced by the Claimant this is on the basis that she was advancing them on behalf of herself and her children.


The Claimant was born in May 1977. She is from Kenya where she went to school and University. She met her ex-husband Mr S in 2000 and their first child (W) was born in June 2001. They married in October 2001. Mr S was raised as a Luhya in Luhyaland and, as his mother had suffered domestic violence from a Kikuyu man, she developed a hatred for the Kikuyu people. After their marriage, Mr S moved to the USA to study leaving his wife and child in Kenya. He lived in the USA from January 2002 to May 2007, firstly as a student and then he worked there. This meant that the Claimant and her husband spent prolonged periods apart. The Claimant and her oldest son lived with her mother in law in Luhyaland until March 2003 when they left that home. After that, the Claimant worked in a doctor's surgery between July 2003 and March 2005 and, with money sent by Mr S, a house was built for the Claimant and her oldest son to live in. Shortly after his return from the USA, Mr S moved his mother and aunt into the house to live with them.


In January 2008, the Claimant and her oldest son, W, moved to the UK with her husband Mr S, as his dependents. He held a highly skilled migrant visa (HSMV). Shortly after her arrival in the UK the Claimant gave birth to her second son (I) who was born in February 2008.


On 28 July 2008, the Claimant left the family home with her two sons. In November 2008, she was granted, on a without notice basis, a non-molestation order under s. 42 Family Law Act 1996 by a judge sitting at the Romford County Court. As I understand it, at the same time, and so also on a without notice basis, the court ordered that, until further order (a) the children were to live with their mother the Claimant (the Residence Order), and (b) the Respondent father (Mr S) was not to remove the children from the care of the Claimant, or from the jurisdiction of England and Wales, and that he was to surrender the children's passports to the court (the Injunctive Order). On the evidence, it is not clear whether the non-molestation order was continued and the Injunctive Order confirmed, at a later hearing on notice. But, if such a hearing took place, it is clear that such continuation or confirmation would have been on the basis of disputed evidence. This is because there was a later fact-finding hearing covering allegations that were relied on by the Claimant to support the two orders made on a without notice basis.


The family proceedings were transferred to the Cardiff County Court where a fact finding hearing took place in 2009 before HHJ John. At that hearing, the Claimant was represented and Mr S appeared in person. The judgment is dated 15 October 2009 (the Fact-Finding Judgment). I have seen no reference to any continuation or confirmation of the without notice orders at that stage, but it seems that if the non-molestation order was still running it, and the Residence Order and the Injunctive Order, simply continued.


On 24 July 2009, just before her husband's HSMV was due to run out, the Claimant made a claim for asylum. In broad terms, she claimed that if she returned to Kenya her husband's family would forcibly take her children from her in accordance with tribal culture and tradition in Kenya, their attitude to her and her children and the disadvantaged position of women in Kenyan society. This claim was refused by the Interested Party (SSHD) by a decision letter dated 20 August 2009 (the First Refusal Letter). The Claimant appealed, and by a decision promulgated on 25 November 2009 (the 2009 Appeal Decision ) Immigration Judge Alakija dismissed her appeal on asylum grounds and for humanitarian protection, but allowed the appeal on human rights grounds (Article 8) because he took the view that:

" if the children are forced to remain in the United Kingdom by virtue of the current or any further court order that it would be a breach of the article 8 rights of both mother and children unless such an order transfers custody of the children away from their mother. Consequently I find that in the current situation the removal of the appellant without her children would engage their rights under Article 8 of the ECHR and although such removal may be considered to be legitimate would not be proportionate at present."


As a result, the Claimant was given discretionary leave to remain pending the outcome of the family proceedings. On 22 April 2010, the Claimant made an application to extend that leave, in which she states that it would expire on 19 May 2010.


The evidence before me does not reveal the details of the orders made in the family proceedings and, in particular, whether the Injunctive Order was ever discharged. But, it is clear that the parties proceeded on the basis that the family proceedings were at an end because Mr S had indicated that he no longer wanted to proceed with his application and had returned to Kenya. In line with that, no disposal hearing took place in the family proceedings. In any event, and it seems contrary to the understanding of Immigration Judge Alakija, no injunction was made in the family proceedings that required the children to remain in the jurisdiction of England and Wales. The injunction was to prevent the father removing them.


But the family proceedings were ongoing on the basis that the whole family were here. As I understand it, there were rival claims for residence orders in the family proceedings and so until they were effectively brought to an end issues remained as to (a) where the children would live, and (b) their contact with the non-resident parent.


The Claimant's application to extend her leave was refused by a refusal letter dated 25 November 2010 (the Second Refusal Letter). In broad terms, this application for an extension of leave was based on the same grounds as the first application, with the added factors that the Claimant and her children had been here for a longer period of time and the orders, findings and allegations in the family proceedings. The Claimant appealed the refusal, and by the 2011 Immigration Appeal Decision Immigration Judge Crawshay dismissed her appeal on asylum grounds, on humanitarian protection grounds and on human rights grounds.


Permission to appeal the 2011 Immigration Appeal Decision was refused by the First—tier Tribunal (Immigration Judge Blandy) sent on 16 March 2011 and then by the Decision of the UT refusing permission to appeal. Permission to bring these proceedings for judicial review of the decision of the UT refusing permission to appeal was refused on the papers by HHJ Jarman, but was granted at the renewal hearing by Beatson J. The note taken by the Claimant's counsel of his reasoning was not disputed and it contains the following:

" [ the Applicant ] raises arguable points as to the satisfaction of the second appeals criteria in the aspect of an important principle as to how an Immigration Judge should deal with fact-findings made in family proceedings with different evidence on whether there needs to be an analogous approach as in Devaseelan as in relation to previous immigration decisions.

Also on the other compelling reason ground which relies on a combination of procedural flaws in the decision together with the fact that there was authority subsequent to the decision in ZH Tanzania as to the best interests of the child test".


That reasoning reflects an approach that the second-tier appeals criteria was arguably satisfied and thus that it was that test that was to be applied at this substantive stage. The order simply provided that permission was granted to bring proceedings for judicial review of the Decision of the UT refusing permission to appeal was granted.

The grounds for the grant of permission for judicial review and, if such permission is granted the grounds upon which the Court can grant relief by way of judicial review


As appears from the postscript to this judgment these issues have been addressed by new Rules introduced by the 59 th Update to the Civil Procedure Rules and as a result much of what I say in paragraphs 14 to 43 is only of historical interest.


The Decision of the UT refusing permission to appeal from the 2011 Immigration Appeal Decision of the First-tier Tribunal is not appealable to the Court of Appeal because it is an excluded decision whereas, with permission, a substantive decision of the UT is appealable on a point of law to the Court of Appeal, if the second-tier appeals criteria is...

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