R v Secretary of State for The Home Department, ex parte J (A Child)

JurisdictionEngland & Wales
CourtQueen's Bench Division
Judgment Date09 Mar 2000
CO/2353/98

Queen's Bench Division

Moses J

R
and
Secretary of State for the Home Department ex parte Mobin Jagot

M Mullins for the applicant

S Wilken for the respondent

Cases referred to in the judgment:

Marck v BelgiumHRC [1979] 2 EHRR 306.

R v Immigration Appeal Tribunal ex parte Tohur Ali [1987] Imm AR 189.

Nasreem v FranceHRC [1995] 21 EHRR 322.

R v Ministry of Defence ex parte SmithELRUNK [1996] QB 517: [1996] 1 All ER 257.

Philomena Gangadeen and anr v Secretary of State for the Home Department [1998] Imm AR 106.

R v Secretary of State for the Home Department ex parte Ali [2000] Imm AR 134.

R v Secretary of State for the Home Department ex parte Turgut [2000] Imm AR 306.

Leave, indefinite — refusal — minor — parents citizens of Malawi and resident there — able to look after applicant — applicant had spent some years in United Kingdom with grandparents — overstayer — attending state schools — whether opportunity for applicant to have an effective family life in Malawi good reason for uprooting the applicant from United Kingdom — whether need for effective immigration control a factor — whether decision at variance with policy 069/99 — whether a breach of articles of European Convention. European Convention on Human Rights art. 8.

The applicant was a citizen of Malawi, a minor. His parents lived in Malawi and were wealthy enough to look after him. He had however spent some years in the United Kingdom with his grandparents: he had become an overstayer and attended state schools. The Secretary of State refused to grant him indefinite leave to remain. He concluded, taking account of the European Convention, that the applicant could have an effective family life in Malawi.

Before the court it was argued that the decision ran counter to the minister's policy 069/99 where there had to be a strong reason for uprooting a child who had spent seven years in the United Kingdom.

Held

1. There had been no breach of article 8 of the European Convention.

2. However the court concluded there was no strong reason, following 069/99, for uprooting the applicant. The policy related to those in breach of the immigration rules and the need for effective immigration control was not therefore a factor to be taken into account.

1. Moses J: The issue in this application for judicial review is whether the Secretary of State for the Home Department was entitled to conclude that the applicant, who is now 14, should be refused indefinite leave to remain. The decision was made despite the fact that he has spent a substantial, formative part of his life in this country: the Secretary of State decided that there were strong reasons for him to be uprooted from this country.

2. The applicant was born in Malawi. His life in Malawi was described by his parents when they were interviewed sometime in 1998 by an official at the British High Commission in Lilongwe. His mother told the official that she had been living with her husband's parents, the applicant's grandparents, at the time of the birth. She stated that the applicant had only stayed a total of five nights with his natural parents since birth, although, as the Secretary of State points out, there was a period when he was about five, after his grandparents had left Malawi and come to the United Kingdom, when he remained there. Apparently, six months after the applicant was born, the parents had left the grandparents' house but had left their son behind.

3. In April 1988 the applicant's grandfather moved to the United Kingdom. In April 1990 the applicant arrived in the United Kingdom with three months' leave to enter; his leave to enter expired in April 1991. Between June 1990 and July 1993 he attended Allenby Infant and Nursery School, going in September to Stanhope Primary School. He started sometime thereafter at secondary school, Greenford High School.

4. In 1992 his grandparents applied in Malawi for adoption. There are papers exhibited in the bundle which show that the grandfather declared that he was willing to adopt Mobin and recorded that Mobin found it difficult to live with his parents. It also records that his parents acceded to the adoption. For reasons that are not wholly explained, but which, according to his mother, arose because of difficulties in pursuing the adoption whilst the grandparents were in this country and the parents were in Malawi, a formal adoption was not pursued.

5. In March 1997 the applicant's parents contacted solicitors to make a request that he should be allowed to stay in the United Kingdom as the dependant of the grandparents. No decision was concluded before January 1998 when Mobin was sent by his grandparents to Malawi to see his maternal grandmother who was terminally ill. She died on 18 April 1998 but during those four months Mobin spent time with his parents. The evidence, which is undisputed, is that he was extremely unhappy in Malawi, did not speak the native language and felt like a stranger there. He had, so the evidence of the solicitor states, only been prepared to go to Malawi because he thought he would be able to come back. While in Malawi he ran up a telephone bill costing some £1,000 due to talking to his grandparents in the United Kingdom.

6. After his maternal grandmother had died, he arrived back in the United Kingdom on 20 April 1998 and sought leave to enter. He was interviewed and refused. In June 1998 Jowitt J granted permission on the basis that the Secretary of State had not considered leave to enter as a matter of extra-statutory concession. Jowitt J said:

‘The proposal by the immigration authorities is to return Mobin to Malawi, a country whose language he does not speak and to a culture which, in ten years, has become foreign to him and to remove him from those whom he regards as his parents.

All this appears to be because of the visit to Malawi to see his maternal...

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9 cases
  • MA (Pakistan) and Others v Secretary of State for the Home Department
    • United Kingdom
    • Asylum and Immigration Tribunal
    • 22 April 2005
    ...the Home Department ex parte Abdi (Dhudi Saleban) [1996] Imm AR 148 R v Secretary of State for the Home Department ex parte Mobin Jagot [2000] Imm AR 414; [2000] INLR 501 Shala v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 233; [2003] INLR 349 Silver v United KingdomHRC (1......
  • NF (Ghana) v Secretary of State for the Home Department
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 30 July 2008
    ...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”.......
  • R (Suleiman) v Secretary of State for the Home Department
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 21 July 2006
    ...individual merits." 6 The next port of call in considering the policy is the decision of Moses J (as he then was) in ex parte Jagot [2000] INLR 501 which was referred to by Silber J. As appears from paragraph 14 of that judgment, when the revised policy was introduced by the relevant m......
  • R Krystian Dabrowski Damian Dabrowski Ursula Kasprowicz and The Secretary of State for the Home Department
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 7 April 2003
    ...look again at Sir Oliver's conclusion. Certainly one notes (and Mr Ali has been at pains to remind us) that Moses J in the case of Jagot [2000] INLR 501 had, in dealing with a vulnerable child rather than a contracted marriage, assumed, without overtly deciding, that DP 069/99 applied to po......
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