Upper Tribunal (Immigration and asylum chamber), 2022-09-12, [2022] UKUT 00336 (IAC) (CJ (family proceedings and deportation))
| Judge | The Hon. Mr Justice Morris, Upper Tribunal Judge Stephen Smith |
| Status | Reported |
| Published date | 16 December 2022 |
| Date | 12 September 2022 |
| Hearing Date | 20 July 2022 |
| Appeal Number | [2022] UKUT 00336 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | family proceedings and deportation |
UT Neutral citation number: [2022] UKUT 00336 (IAC)
CJ (family proceedings and deportation) South Africa
Upper Tribunal
(Immigration and Asylum Chamber)
Heard at Field House
THE IMMIGRATION ACTS
Heard on 20 July 2022
Promulgated on 12 September 2022
Before
THE HON. MR JUSTICE MORRIS
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
The Secretary of State for the Home Department
Appellant
and
cj (south africa)
(ANONYMITY DIRECTION made)
Respondent
Representation:
For the Appellant: Mr S. Whitwell, Senior Home Office Presenting Officer
For the Respondent: Mr J. Dingley, Ison Harrison Solicitors
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Where an appellant in an appeal challenging the refusal of a human rights claim is engaged in proceedings before the Family Court, the general approach in MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133, MH (pending family proceedings-discretionary leave) Morocco [2010] UKUT 439 (IAC) and RS (immigration and family court proceedings) India [2012] UKUT 00218 (IAC) concerning the need for an appellant to be permitted to remain in the United Kingdom in order to prosecute family proceedings remains applicable. In particular, a tribunal considering this issue should address the questions at paragraphs 43 to 45 of RS (other than the questions in paragraph 44(ii)).
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A tribunal should not purport to allow the appeal to a “limited extent” nor give a direction that a period of discretionary leave should be granted to the appellant in accordance with paragraph 44(ii) of RS. The only option now open to the tribunal on an appeal under Part 5 of the 2002 Act is to allow or dismiss the appeal. The power to give a direction for the purpose of giving effect to its decision previously contained in section 87 of the 2002 Act was repealed by the Immigration Act 2014 on 20 October 2014.
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In an appeal against the refusal of a human rights claim, where a tribunal concludes that the appellant has an Article 8 ECHR right to remain at least until the conclusion of family proceedings concerning the appellant’s children, that is likely to merit a finding that there are “very compelling circumstances over and above those described in Exceptions 1 and 2” for the purposes of section 117C(6) of the 2002 Act, and the appeal should usually be allowed in express reliance on that subsection.
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It is likely to be helpful for the tribunal to observe that, although implementing allowed appeals is a matter for the Secretary of State, the requirements of Article 8 are only likely to necessitate the granting of such period of leave as is sufficient to enable the family proceedings to be determined.
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When the family proceedings are resolved, the appellant and the Secretary of State may each reassess their respective positions in light of the final contact arrangements, as determined by the Family Court.
DECISION AND REASONS
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It is well established that where a person facing deportation is prosecuting contact proceedings concerning children before the Family Court, it may be a breach of the European Convention on Human Rights (“the ECHR”) for their removal to be enforced before the resolution of the family proceedings. The Secretary of State’s practice is usually not to remove or deport those who are engaged in contact proceedings involving children until their final determination.
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This appeal concerns the reconciliation of that principle, and the Secretary of State’s practice, with the statutory public interest considerations concerning the deportation of foreign criminals contained in Part 5A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
Factual background
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The Secretary of State appeals against the decision of First-tier Tribunal Judge O’Hanlon (“the judge”) promulgated on 7 November 20211 in which he allowed the appeal of the Respondent, whom we shall call “the claimant”, against a decision of the Secretary of State dated 2 November 2020 to refuse his human rights claim. The appeal was brought under section 82(1)(b) of the 2002 Act.
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The claimant is a citizen of South Africa. He faces deportation pursuant to the automatic deportation regime contained in the UK Borders Act 2007 (“the 2007 Act”), on account of his two year sentence of imprisonment, following a plea of guilty, for sexual assault and assault occasioning actual bodily harm. The claimant committed what was described by the sentencing judge as a “sustained and persistent violent and sexual attack in the presence, in part, of your children” on his wife, who was left “battered and bruised with marks all over her body and bleeding…” The offence had a “devasting psychological impact” on the victim, and on the children the claimant has with her: A, born in 2011, and B, born in 2014. The sentencing judge made a restraining order prohibiting the claimant from contacting the victim, or A or B, directly or indirectly, save for child contact purposes.
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The claimant is currently engaged in proceedings before the Family Court to determine contact arrangements with his children. By an order of that court, he is permitted limited, indirect contact with A and B on an interim basis, pending a full assessment by CAFCASS, and the final determination of those proceedings.
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It was common ground before the First-tier Tribunal that the Secretary of State would not remove the claimant from the United Kingdom during the currency of the contact proceedings. By a letter dated 29 October 2021 entitled “Supplementary Consideration”, the Secretary of State quoted the following extract from paragraph 3 of headnote to MH (pending family proceedings-discretionary leave) Morocco [2010] UKUT 439 (IAC):
“It is the respondent’s practice (consistent with the Human Rights Act 1998), not to remove or deport parent(s)/parties when family or other court proceedings are current…”
The letter continued:
“There is no intent on the part of the Secretary of State to depart from that position in your case”
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The Secretary of State contested the claimant’s appeal before the First-tier Tribunal on the basis that, although he would not be removed during the currency of the contact proceedings, it was necessary to address the substance of his human rights claim through the lens of section 117C of the 2002 Act in any event. The presenting officer before the First-tier Tribunal submitted that the claimant’s offence was serious, and, as a “medium offender” (that is, an offender sentenced to a term of imprisonment of between one and four years), he would have to demonstrate that his deportation would be “unduly harsh” on A or B, or that that there were “very compelling circumstances” over and above the exceptions to deportation. There were no Article 8 private life barriers facing the claimant upon his return to South Africa.
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The judge recorded the Secretary of State’s submissions as to the impact of the ongoing contact proceedings in the following terms, at paragraph 36(l):
“So far as the question of compelling circumstances are concerned, it is necessary to take into account the position in the family law proceedings. Deportation is in the public interest. The [claimant] and his children have been separated for two years and at present are taking only ‘baby steps’ in terms of reintroduction. The case law referred to does not state that it is mandatory to proceed in the manner suggested in MH and [MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133], the wording used is that removal in those circumstances ‘may violate Article 8’ and ‘may breach Article 6’.”
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Mr Dingley, who also appeared before us, submitted to the judge that until the family proceedings had concluded, it was not possible to assess whether the claimant’s removal would breach his Article 8 rights. The Secretary of State’s undertaking not to remove the claimant was not a sufficient basis to conclude that his Article 8 rights would be respected; if the appeal was dismissed, the claimant would be removable. It was not possible to conclude that the claimant’s removal would be proportionate, in light of the continued uncertainty surrounding his circumstances. Mr Dingley submitted to the judge that the appeal should be allowed on the basis the claimant would be granted discretionary leave pending the conclusion of the family proceedings, consistent with MH and MS.
The decision of the First-tier Tribunal
The judge reached a number of findings of...
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