RS (Immigration/ family court liaisons: outcome)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Justice Mcfarlane,Martin,Mr Justice Blake |
| Judgment Date | 23 May 2012 |
| Neutral Citation | [2013] UKUT 82 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 23 May 2012 |
[2013] UKUT 82 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
The Immigration Acts
The President, Mr Justice Blake
Lord Justice Mcfarlane
Upper Tribunal Judge Martin
RS (immigration/family court liaison: outcome)
(1) This case provides an example of the importance of co-operation and communication between the two jurisdictions, family and immigration, where two sets of parallel proceedings, closely dependent upon each other are ongoing.
(2) Following the Ruling of the Upper Tribunal in RS (immigration and family court proceedings) India [2012] UKUT 00218 (IAC), the appellant's Article 8 case against deportation fell to be determined in the light of the judgment of the family court regarding the best interests of the appellant's child, H. The family court eld that H's best interests did not lie with her parents butby being placed in long-term foster care in the United Kingdom. The family court regarded it as acceptable for contact with H's parents to be face-to-face annually(by H's visiting them in India, at public expense) and monthly by means of Skype.
(3) Since those arrangements satisfied H's best interests in the family proceedings, where those interests were the paramount concern, it followed that the Tribunal could be satisfied, when considering H's best interests as a primary consideration in the deportation proceedings, that the appellant's deportation did not interfere with H's best interests.
(4) The arrangements identified by the family court as meeting H's best interests provided for the likelihood of the appellant's deportation. The family court took into account [53] of the Tribunal's Ruling in [2012] UKUT 00218.
(5) The appellant's deportation was, accordingly, not unlawful on human rights grounds.
We direct that in any report of these proceedings the identity of the child H and her parents shall not be revealed.
We issued a Ruling and Directions dated 18th June 2012 in this appeal under reference RS (immigration and family court proceedings) India [2012] UKUT 00218 (IAC) in which we adjourned the deportation appeal to await the decision of the family court. We note that the Court of Appeal has since endorsed our ruling in Mohan v SSHD [2012] EWCA Civ 1363 albeit at [32] stressing the need for caution in anticipating the immigration consequences of a decision in family proceedings that was yet to be taken. We directed either party to make written representations within 20 days of disposal by the family court, on receipt of which we would further consider the appeal and proceed to a final determination without further oral hearing. This determination should be read in conjunction with that Ruling.
We indicated in paragraph 53 of that Ruling that if the family court concluded that H should be permanently removed from the care of her parents then we did not consider that the deportation of the appellant would be unlawful as a disproportionate interference with the right to respect to the family life he enjoys with his wife and H or his private life derived from his residence here. Our reasons for so finding are contained in that paragraph. Alternatively we indicated in paragraph 54 that if the family court concluded that H's welfare required her to be reintroduced to the care of her parents, then the appellant's deportation would be disproportionate and in breach of the human rights of each member of the family.
The family court has now finally concluded the proceedings before it by the making of a Final Care Order. We have been provided with a copy of District Judge Wilding's judgment of 18 th October 2012 and the Final Care order, a copy of the Agreed Final Threshold Document and a copy of the Final Care Plan of Luton Borough Council dated 17th October 2012.
This appeal has provided an example of the importance of co-operation and communication between the two jurisdictions, family and immigration, where two sets of parallel proceedings, closely dependent upon each other are ongoing. The judges in each jurisdiction recognised the importance of their decision-making to what takes place in the other and for that reason there has been close co-operation and sharing of information in this case; that is how Judge Wilding was able to quote from our Ruling in his judgement and we from his in ours. In this case, we conclude that given an indication of the immigration outcome when the family proceedings were concluded has enabled the family court to shape the Care Plan to address the immigration issues.
The Tribunal has now received written submissions from both parties.
On behalf of the Secretary of State we received a fairly brief submission relying upon Judge Wilding's paragraphs 72 to 74 which, it is said clearly envisages that the appellant will be removed, that his wife intends to go with him and that suitable contact arrangements have been made in that event. The Tribunal is asked to determine the appeal without a further hearing and dismiss it.
The appellant's representative has, unsurprisingly, provided a more lengthy submission that summarises the Care Order as follows:–
“District Judge Wilding, sitting at Luton County Court, ordered on 16 October 2012 there be a final care order to Luton Borough Council in respect of H. However, the Appellant and his wife, Mrs K, have an opportunity to discharge the care order, in the future, if they are deemed fit to care for H. The care plan envisaged H would continue to have contact with the Appellant and Mrs K. However the frequency and duration of the contact would be reviewed as the care plan evolves.”
So far as that summary is concerned, we consider that it does not paint an entirely accurate picture of what was decided. Judge Wilding's judgement is a 20 page, 75 paragraph document. It explains at paragraph 31 that:–
“The Local Authority's Final Care Plan had changed between hearings and the latest was dated 9th July 2012 and provided for long-term fostering of H as a protracted trawl of the adoption register have found no matches for H”.
It is clear therefore that the reason that H is to be in long-term foster care is because of the inability of the local authority to identify suitable adoptive parents for her. It is not because there is any future plan for her to be rehabilitated to her parents; that is clear in the Final Care Plan. (Paragraph 4.5 — “There are no plans for reunification”).
Whilst Mr Khan submits that the door is open for the appellant and his wife to seek to discharge the Care order in the future, that course is clearly not envisaged by Judge Wilding, the Local Authority or H's Guardian within the care proceedings who clearly view her foster placement as a permanent one. It is with that in mind that the contact is to be reduced to once per month only. Throughout the care proceedings contact was three times per week. It is clearly being reduced to a level to maintain the relationship only.
Judge Wilding then goes on to explain how the 9th July 2012 Final Care Plan was deficient because it did not allow or deal with the possibility of father's deportation and mother leaving the country with him, or alternatively choosing to remain in England. There was therefore another Final Care Plan of 15th October which did provide for contact in the event that father is removed; by Skype once a month and by the Local Authority funding annual visits by H to India for face-to-face contact.
All this paints a rather different picture than that contained in paragraph 2 of Mr...
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