The Secretary of State for the Home Department v GD (Ghana)
| Jurisdiction | England & Wales |
| Judge | Lord Justice David Richards,Lord Justice Irwin,The President of the Family Division |
| Judgment Date | 25 July 2017 |
| Neutral Citation | [2017] EWCA Civ 1126 |
| Docket Number | Case No: C3/2014/4164 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 2017 |
[2017] EWCA Civ 1126
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
MRS JUSTICE ANDREWS DBE and UPPER TRIBUNAL JUDGE KEBEDE
DA/00799/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE FAMILY DIVISION
Lord Justice David Richards
and
Lord Justice Irwin
Case No: C3/2014/4164
Marcus Pilgerstorfer (instructed by The Government Legal Department) for the Appellant
Jacques Rene (instructed by Debridge Solicitors) for the Respondent
Hearing date: 7 February 2017
Judgment Approved
Introduction
In October 2011, the respondent was convicted of an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 of causing or allowing the death of a child. She was sentenced to a term of imprisonment of three years. On 9 April 2013, the Secretary of State issued a deportation order for the respondent, against which the respondent appealed. Her appeal was allowed by the First-tier Tribunal (Judge Woodhouse and Mrs A.J.F. Cross de Chavannes) (the FTT) by a Decision issued on 11 February 2014. The Secretary of State's appeal to the Upper Tribunal (Andrews J and Judge Kebede) (the UT) was dismissed by a Decision issued on 13 May 2014. Permission to appeal to this court was granted by Jackson LJ.
The grounds of appeal, shortly stated, are as follows. First, both Tribunals proceeded on a false assumption that a residence order under section 8(1) of the Children Act 1989 in respect of the respondent's children was still in force and, in any event, misunderstood the legal effect of a residence order. Second, both Tribunals failed to weigh the very high public interest in the deportation of foreign criminals against the applicable rights of the respondent under article 8 of the Convention of Fundamental Human Rights and Freedoms and failed to consider the options that were open to the respondent's family if she were deported. There was a third ground of appeal, that both Tribunals failed to treat the relevant provisions of the Immigration Rules as a comprehensive code and proceeded on the basis that there was room for a separate consideration of the respondent's article 8 rights outside the Rules, but that ground was not pursued in the light of the Supreme Court's decision in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799.
Preliminary point
The Secretary of State filed her appeal notice out of time. The deadline was 28 December 2014, but the appeal notice was not filed until 30 January 2015. In the appeal notice, application was made for an extension of time and an explanation of the delay was given by the solicitor who handled the appeal and had direct personal knowledge of the circumstances of the delay.
When giving permission to appeal, Jackson LJ extended time on the grounds that the delay was short and coincided with the Christmas and New Year period. His order was sealed on 1 July 2015 and sent to the parties shortly afterwards. The first intimation of a challenge to the extension was not made for almost a year, in a letter dated 22 June 2016 from the respondent's solicitors. Moreover, the appeal notice was served on the respondent on 6 February 2015 and any objection should have been made within 7 days, in accordance with CPR 52CPD.4(3)(a)(ii). Any objections would have been taken into account by Jackson LJ before making deciding the application.
In these circumstances, it ill behoves the respondent to complain of the relatively modest delay on the part of the Secretary of State, and it is impossible for her to suggest that she suffered any prejudice by the delay. I see no grounds on which it would be appropriate to set aside the order made by Jackson LJ.
The facts
The respondent, a citizen of Ghana, was born in 1980 and entered the UK in September 1980 at the age of 20 on a student visa. She studied to become a nurse and her student visa was extended on various occasions until 30 January 2006, after which she was given leave to remain as a work permit holder until 28 July 2011.
In 1999, the respondent had met AFG in Ghana. In August 2001, they were married under Ghanaian law. In September 2001, AFG arrived in the UK as a visitor and lived with the respondent. They had four children: PAPA (born 5 July 2002), DAA (born 14 July 2004), NANA (born 10 February 2005) and D (born 21 April 2009). All the children were Ghanaian citizens. None had British nationality, but all had leave to remain as the respondent's dependents until 28 July 2011. Each of the three eldest children was taken as a baby to Ghana to live with the respondent's mother, subsequently returning to the UK to live with their parents (their return dates being 19 December 2005, 1 October 2006 and 22 March 2009 for PAPA, DAA and NANA respectively). The family regularly returned to Ghana for holidays. All members of the family had strong family and cultural links with Ghana and they all spoke Twi within the family
On 4 March 2010, the respondent's fourth child, D, died as a result of force-feeding by the respondent, a practice about which she had been previously been warned by health professionals. As earlier mentioned, she was convicted of causing or allowing the death of a child and sentenced to three years' imprisonment. The judge accepted that there was no risk to the health of the other children. In his sentencing remarks, the judge said that it "was not an attack in the accepted sense of the word, but having listened to the experts, it was in my view a prolonged and a deliberate course of conduct. At best, it could be said that this was a misguided obsession, but it was a determined obsession and it must have caused enormous and daily distress to your daughter."
Following the death of D, the respondent and the remaining children went to Ghana for a month, staying with the respondent's parents and sister.
In September 2010, the respondent applied for indefinite leave to remain in the UK but, on account of her conviction, this was refused on 9 April 2013 at the same time as the deportation order was made.
AFG and the remaining children applied for further leave to remain in July 2011 and November 2012 respectively. These applications were refused, based largely on the decision to deport the respondent. Following the respondent's successful appeal to the FTT, the appeals of AFG and the children were heard by a different constitution of the FTT and allowed by a decision issued on 7 March 2014. The Secretary of State did not appeal against that decision.
Care proceedings were commenced in respect of the children, following the death of D. Child in need plans were made in April 2010. The children's senior social worker reported to the Family Court that both parents had cooperated well with social services and taken on board advice from the various professionals involved. In April 2012, the children were placed under a supervision order, which expired in April 2013. They were also made the subject of a residence order in favour of AFG. This order was made on 2 April 2012 but sealed on 18 April 2012.
On 23 April 2013, the respondent was released from prison on licence and granted immigration bail. She has since lived with AFG and the children. A social report dated 19 May 2013 stated that the children had a close and positive bond with both parents. It described them as a "close, committed family unit with strong cultural and religious beliefs and a huge supportive network around them". It stated that the deportation of the respondent would have a detrimental effect on her children and would cause stress to the whole family. Her probation officer reported on 19 August 2013 that she had displayed "exemplary behaviour and commitment" while on licence.
The relevant legislation and rules
The relevant statutory regime in force at the time of the decisions of the FTT and the UT was principally contained in the Immigration Act 1971 (as amended) and sections 32–33 of the UK Borders Act 2007. The respondent is a "foreign criminal" as defined in section 32(1), having been sentenced to a period of imprisonment of at least 12 months. The Secretary of State was accordingly obliged to make a deportation order in respect of her unless section 33 applied. The only relevant exception in section 33 is provided by section 33(2), that "removal of the foreign criminal in pursuance of the deportation order would breach [her] Convention rights".
The Immigration Rules were amended in 2012 to include provisions addressing the public interest in the deportation of foreign criminals. Further amendments were made in 2014, but they took effect after the hearings and decisions in this case. Under the Rules in force at the times of those decisions, paragraph 398 provided, so far as applicable to the present case, that where a person claims that their deportation would be contrary to the UK's obligations under article 8, and their deportation "is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months", the Secretary of State will consider whether paragraph 399 or 399A applies "and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors". It is accepted that paragraphs 399 and 399A do not apply in this case.
The FTT Decision
The FTT considered the merits of the case in their decision at [60] – [64]. Having heard the evidence of the respondent, they were satisfied that a family life continued to exist between the respondent, AFG and the three remaining children....
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2021-02-25, PA/11738/2017 & PA/00957/2018
...appeals, Ms van Overdijk submitted, firstly, that the making of an FGMPO in the Family Court could not bind the respondent: GD (Ghana) [2017] EWCA Civ 1126; [2018] Imm AR 1, at [47]-[51] and Re A [2019] EWHC 2475; [2020] 1 FLR 253, at [53] et seq. The other cases which had been included in ......
-
Upper Tribunal (Immigration and asylum chamber), 2021-02-25, [2021] UKUT 108 (IAC) (GW (FGM and FGMPOs) (CG))
...appeals, Ms van Overdijk submitted, firstly, that the making of an FGMPO in the Family Court could not bind the respondent: GD (Ghana) [2017] EWCA Civ 1126; [2018] Imm AR 1, at [47]-[51] and Re A [2019] EWHC 2475; [2020] 1 FLR 253, at [53] et seq. The other cases which had been included in ......
-
Upper Tribunal (Immigration and asylum chamber), 2022-09-12, [2022] UKUT 00336 (IAC) (CJ (family proceedings and deportation))
...paragraph 45, to highlight the potential difficulties of being “in limbo”. In Secretary of State for the Home Department v GD (Ghana) [2017] EWCA Civ 1126; [2018] Imm AR 63, the Court of Appeal held that the Secretary of State is not bound by an order of the Family Court. The President of t......
-
Re B (children: police investigation)
...Home Department ex parte T[1995] 3 FCR 1, [1995] 1 FLR 293, [1994] Imm AR 368. Secretary of State for the Home Department v GD (Ghana)[2017] EWCA Civ 1126, [2018] Imm AR 63, [2017] INLR W (a minor) (wardship: jurisdiction), Re [1985] AC 791, [1985] 2 WLR 892, [1985] 2 All ER 301, (1985) 149......