RS v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake,Judge Martin,McFarlane |
| Judgment Date | 23 May 2012 |
| Neutral Citation | [2012] UKUT 218 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 23 May 2012 |
[2012] UKUT 218 (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. Khan, instructed by JL Solicitors
For the Respondent: Mr Saunders, Senior Home Office Presenting Officer
RS (immigration and family court proceedings) India
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1. Where a claimant appeals against a decision to deport or remove and there are outstanding family proceedings relating to a child of the claimant, the judge of the Immigration and Asylum Chamber should first consider:
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i) Is the outcome of the contemplated family proceedings likely to be material to the immigration decision?
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ii) Are there compelling public interest reasons to exclude the claimant from the United Kingdom irrespective of the outcome of the family proceedings or the best interest of the child?
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iii) In the case of contact proceedings initiated by an appellant in an immigration appeal, is there any reason to believe that the family proceedings have been instituted to delay or frustrate removal and not to promote the child's welfare?
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2. In assessing the above questions, the judge will normally want to consider: the degree of the claimant's previous interest in and contact with the child, the timing of contact proceedings and the commitment with which they have been progressed, when a decision is likely to be reached, what materials (if any) are already available or can be made available to identify pointers to where the child's welfare lies?
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3. Having considered these matters the judge will then have to decide:
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i) Does the claimant have at least an Article 8 right to remain until the conclusion of the family proceedings?
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ii) If so, should the appeal be allowed to a limited extent and a discretionary leave be directed as per the decision on MS (Ivory Coast) [2007] EWCA Civ 133?
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iii) Alternatively, is it more appropriate for a short period of an adjournment to be granted to enable the core decision to be made in the family proceedings?
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iv) Is it likely that the family court would be assisted by a view on the present state of knowledge of whether the appellant would be allowed to remain in the event that the outcome of the family proceedings is the maintenance of family contact between him or her and a child resident here?
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We direct that in any report of these proceedings the identity of the child H and her parents shall not be revealed.
The appellant is an Indian citizen born in April 1976. He arrived in the United Kingdom in September 2000 with a valid visa and was granted six months leave to enter. He has remained in the United Kingdom without leave since March 2001. In June 2002 he came to adverse police attention for the offences of driving without a licence, no insurance and obstructing a constable and was fined. No immigration action followed until July 2003 when he was served with a notice of liability to removal as an illegal entrant. He made a claim for asylum that he withdrew in November 2003 and he was placed on weekly reporting conditions.
On 12 November 2004 he married HK, a UK born British citizen of Pakistan ancestral origins. Mrs S gave birth to the couple's daughter H on 4 April 2005.
On 27 June 2008 the appellant made an application to remain on the grounds of marriage and that application remained outstanding until a decision was taken to deport him in December 2009.
In April 2009 police were called to the matrimonial home occupied by the appellant in connection with a disturbance. A search of the premises revealed a false identity document in his possession. He was arrested and detained and on 29 June 2009 convicted of possession of a false identity document and given a sentence of twelve months imprisonment. Despite our repeated requests the judge's sentencing remarks have not been made available to us and we now presume that they are lost.
The appellant's conviction and sentence made him susceptible to automatic deportation pursuant to s.32 of the UK Borders Act 2007 and, despite his representations to the contrary, a deportation order was made on 14 December 2009. Having served his sentence the appellant remained in immigration detention until 1 March 2010 when he was released and returned to the matrimonial home. The appellant appealed to the First-tier Tribunal against the decision to deport him relying on the family life he enjoyed in the United Kingdom with his British citizen wife and daughter.
On 8 February 2010, while the appellant was still detained, the local authority became concerned about H's welfare as a result of a GP referral to social services. There were concerns about the mother's mental health and her ability to cope with the child alone. An urgent visit was made to the house which was in a very poor state of cleanliness, and H had not been fed or clothed properly. Mrs S said she had insufficient resources to do so. An emergency protection order was made and the child taken into interim care on 12 February 2010. Those proceedings have continued in the county court ever since.
The appellant's case on appeal was that his presence in the household was vital to keeping the family together and in a good state of health and without it H would remain in care as his wife could not cope alone. There was some support for the appellant's contention in a statement made before the panel in the care proceedings of Lynne McGowan, a social worker employed by the Luton Borough Council.
As to his offending, the Probation Officer's report before the panel revealed that the appellant had told the author that he used the false Italian passport to obtain employment to provide for his family pending the outcome of his application for indefinite leave to remain as a spouse. The family had not claimed benefits when he was at liberty but had needed to do this when he was in detention. There were good reports of his behaviour in prison, and he was in regular contact with his wife who he was anxious to support on his release from detention.
The Home Office submissions were that it was not disproportionate to remove the appellant to India since his British wife and daughter could be expected to follow him there, and they could still continue a level of communication if they chose not to go there.
A panel of the First-tier Tribunal allowed his appeal on 26 March 2010. The panel concluded:
“We have considered all the evidence in [the round]. We do not think it is proportionate for maintaining immigration control for this Appellant to be removed to India. We have noted that he is a caring husband and that his wife is almost entirely reliant upon him and without him is unable to survive on a daily basis as the evidence demonstrated, since the result of the imprisonment was that the child was taken into care as she could not cope with looking after her. He is not able to go to India as she has no relatives there and she cannot live with her husband and her husband's family. Her husband knows no-one in India except his parents and he cannot live without his wife and daughter. If the husband was to return to India the wife would not be able to retain custody of the daughter who would remain in care until the age of majority. She has never been to India and she has never been to Pakistan. The Appellant could not go to Pakistan either with his wife. She has no relatives in Pakistan. Her relatives in the UK do not like to be associated with the Appellant. It seems to us that far from assisting the wife's mental health, by returning the Appellant to India she would become progressively worse mentally. We have taken into account the case of Beoku-Betts, the rights of third parties when assessing the provisions of article 8, in this case the rights of the wife and the child. We consider it would be wholly disproportionate to remove the Appellant in these circumstances”.
The respondent was granted leave to appeal and the appeal came before Designated Immigration Judge Woodcraft sitting as a Deputy Judge of the Upper Tribunal. He found that the panel had made a material error of law, in that the primary legitimate aim in deporting the appellant was the prevention of crime rather than maintaining immigration control, and the panel had accordingly failed to give weight to the gravity of the offence as determined by the Court of Appeal in Benabbas [2005] EWCA Crim 2113. He further concluded that he should proceed with the immigration appeal rather than await the outcome of the care proceedings, as otherwise each court would be continue to wait for the other to decide the issue.
The judge noted:–
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i. The appellant had not applied to regularise his status for some years after his marriage.
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ii. He had been working as a building contractor without informing his employers of his false passport.
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iii. His family life had already been interfered with by the decision of the local authority to seek a care order.
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iv. He was in no position to know whether the local authority still contended that the appellant had been violent to his wife which was an allegation that the wife made resulting in the attendance of the police but he noted that the care proceedings had continued despite the appellant's release on bail.
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v. It would not be possible for the family court to anticipate the decision on the deportation appeal and in the circumstances the decision of the local authority to continue with the care proceedings was wholly understandable.
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vi. It was common ground that Mrs S could not be expected to look after H on her own if the appellant is deported.
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vii. Mrs S's family had not provided assistance to her with H when her husband was in prison, but he was not prepared to assume that...
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