Secretary of State for the Home Department v AB (Jamaica) and AO (Nigeria)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Singh,Lady Justice King,Lord Justice Underhill
Judgment Date12 Apr 2019
Neutral Citation[2019] EWCA Civ 661
Docket NumberCase Nos: C5/2016/4003 C5/2016/4350

[2019] EWCA Civ 661

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

Deputy Upper Tribunal Judge Grimes

Deputy Upper Tribunal Judge Latter

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Underhill,

VICE PRESIDENT OF THE COURT OF APPEAL (CIVIL DIVISION),

Lady Justice King

and

Lord Justice Singh

Case Nos: C5/2016/4003 C5/2016/4350

Between:
Secretary of State for the Home Department
Appellant
and
AB (Jamaica) and AO (Nigeria)
Respondents

Carine Patry (instructed by the Government Legal Department) for the Appellant

Richard Drabble QC and Ranjiv Khubber (instructed by Lambeth Law Centre) for the Respondent in the first appeal

Andrew Otchie (directly instructed) for the Respondent in the second appeal

Hearing dates: 13–14 March 2019

Approved Judgment

Lord Justice Singh

Introduction

1

These are two separate appeals, both brought by the Secretary of State against decisions of the Upper Tribunal (Immigration and Asylum Chamber) which found in favour of the Respondents, AB and AO. In both cases, the Upper Tribunal (“UT”) found that the public interest did not require the removal of either Respondent, on the ground of the right to respect for family life in Article 8 of the European Convention on Human Rights (“ECHR”), as set out in Sch. 1 to the Human Rights Act 1998 (“ HRA”).

2

AB is a Jamaican national, who has a son, R, born in the UK in 2006. AB's relationship with R's mother has deteriorated, but they see each other around three times a week, during which AB assists R with his homework. AB challenged the Secretary of State's refusal to grant him leave to remain in the UK. The First-tier Tribunal (“FTT”) dismissed AB's appeal. AB appealed to the UT, which found that it would be a disproportionate interference with AB's right to respect for family life to remove him from the UK. The Secretary of State was granted permission to appeal by Sir Kenneth Parker (sitting as a judge of the Court of Appeal) by order dated 14 September 2017.

3

AO is a Nigerian national, whose son, I, was born in the UK in 2010. AO was granted discretionary leave to remain in 2011 on the grounds of his relationship with his wife, VN. That leave was curtailed in 2014, on the basis that AO had failed to meet the requirements under which leave was granted, namely his (since deteriorated) relationship with VN. He was also the subject of family court proceedings, as a result of which he is only permitted “indirect contact” with his son, I, through written letters and similar forms of communication. The FTT and the UT found that it would be a disproportionate interference with AO's right to respect for family life to remove him from the UK. Permission to appeal was granted to the Secretary of State by Sir Alan Wilkie (sitting as a judge of the Court of Appeal) by order dated 5 July 2017.

4

After a hearing in the Secretary of State's appeal in AO on 18 October 2018 Hickinbottom and Nicola Davies LJJ directed that the two appeals should be heard together.

Factual and Procedural Background

AB (Jamaica)

5

The Respondent AB is a Jamaican national, born on 17 November 1977. He has three children, by two different women. There is a dispute regarding his immigration history (specifically regarding when he came to the UK), but, for the purposes of this appeal, that dispute is immaterial. AB came to the UK in either 1999 or 2002. After his arrival, AB met his future wife, JO, and they married on 22 March 2003. He then applied for, and was granted, leave to remain for two years as the spouse of JO. He had that leave until 30 June 2005, after which he was granted indefinite leave to remain. This was later revoked.

6

Their relationship ran into difficulties, and at that time AB met NB, who was a British citizen. NB became pregnant, and gave birth to their son, R (who is also a British citizen), on 20 June 2006. NB also had children from other relationships. AB then became reconciled with his wife and moved back into the matrimonial home. In 2009, AB was granted a residence order in respect of R. Shortly afterwards, in September 2009 JO gave birth to M, their daughter. AB then moved out, and was R's primary care giver from 2010–2012.

7

Following his application for a driving licence, AB was charged with and convicted of giving false information or using deception in order to obtain his immigration status (in connection with his alleged entry into the UK in 1999). For this, he was sentenced to six months' imprisonment. In the meantime, on 18 March 2012, JO gave birth to a son, J. Upon release from prison, AB moved back in with NB. In 2013, JO was granted a non-molestation order against AB, preventing him from seeing his other two children, M and J. Before the FTT, AB stated that he sees R three times a week, frequently picking him up from school and helping him with his homework.

8

It is accepted by the Secretary of State that R is a “qualifying child” for the purposes of section 117B(6) of the Nationality, Immigration and Asylum Act 2002, as amended.

9

AB appealed to the FTT against the decision of the Secretary of State to refuse him leave to remain in the UK on the basis of his rights under Article 8 of the ECHR. He was called to give evidence before the Tribunal. There was evidence before the FTT from the police setting out reports of domestic violence by AB over the years, and a number of convictions for cannabis offences. On 10 August 2015, the FTT concluded that it was not a breach of AB's or his son's rights to remove him. AB appealed to the UT and, on 14 April 2016, Deputy UTJ Grimes allowed his appeal, finding that the FTT's judgment contained an error of law, setting it aside and remaking it by allowing it on human rights grounds. The Secretary of State now appeals against that determination.

10

The Secretary of State initially raised two grounds of appeal. The first is whether section 117B(6) of the 2002 Act applies at all in circumstances where there is no realistic prospect of a child leaving the UK as a consequence of one of their parents being removed from the UK. The second was run in reliance on the Court of Appeal's decision in MA (Pakistan) v SSHD [2016] EWCA Civ 705; [2016] 1 WLR 5093. However, in light of the Supreme Court's decision in KO (Nigeria) v SSHD [2018] UKSC 53; [2018] 1 WLR 5273, that second ground of appeal has been formally withdrawn.

AO (Nigeria)

11

AO arrived in the UK aged 12 as a visitor and has remained since then. He is now in his late 20s. In September 2011, he was granted discretionary leave to remain as the spouse of his wife, VN, whom he met in 2008. They have a son, I, who was born on 22 January 2010 and who is a British citizen. AO's relationship with VN deteriorated, and on 3 January 2012 a non-molestation order was made, requiring AO not to contact VN. The decision to curtail his discretionary leave was made in 2014, on the basis that he had ceased to meet the requirements of a concession under which leave was granted. The circumstances justifying leave outside the Immigration Rules no longer applied as the marriage was no longer subsisting and the parties no longer lived together. AO challenged this curtailment decision.

12

Prior to the appeal against this decision being heard, there were Family Court proceedings relating to AO's relationship with his son, I. The Family Court ordered that I should live with his mother, and not have any direct face to face contact with the Respondent, although he could communicate in writing with his son via grandparents, and he could send cards and gifts to him.

13

It was common ground before the FTT that AO could not meet the requirements of the Immigration Rules as a parent as he did not have direct access to his son (LTRPT.2.4(a)(ii)) or sole responsibility for him; therefore the appeal proceeded under Article 8 outside the Rules.

14

The FTT, in a decision promulgated on 8 September 2015, found that AO had a family life with his son and that the Secretary of State's decision would have consequences of such gravity as to engage Article 8 as the contact, even only in writing, would be less easy if he was living in Nigeria and the son would be aware that he now lived very far away. There was a legitimate aim for his removal, namely maintenance of immigration controls, but the removal would be disproportionate.

15

The UT, in a decision promulgated on 5 August 2016, set aside the FTT decision on the ground that it had been erroneous in law; remade the decision; but again allowed the appeal on human rights grounds.

The decision of the FTT in AB (Jamaica)

16

In AB the decision of the FTT promulgated on 10 August 2015 was given by a panel comprising FTTJ Easterman and Ms L Schmitt JP. For relevant purposes the reasoning of the FTT is set out at paras. 92–97. In essence the FTT interpreted section 117B(6) to be freestanding or exclusive of Article 8 considerations generally. For that reason it turned to what it called “the traditional tests” (para. 94) and, at para. 96, weighed the child's best interests against all the other factors that weighed against the Appellant. It concluded that the Secretary of State was correct to conclude that the Appellant's presence in the UK was not conducive to the public good notwithstanding the position relating to his child R. It concluded that any interference with Article 8 rights pursued a legitimate aim and was in accordance with the law and proportionate: see para. 97 of the judgment.

The decision of the UT in AB (Jamaica)

17

When the matter came before the UT, in its decision promulgated on 14 April 2016, Deputy UTJ Grimes concluded that the FTT had erred in law and set aside its decision. At para. 4 it was noted that the Secretary of State conceded that the Appellant had a subsisting relationship with a qualifying child, namely his son R.

18

At para. 8...

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