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The interplay between immigration and family proceedings – Part 2

Following up from yesterday, this post is now going to look at the second case of two from the Upper Tribunal setting further guidance as to how to deal with family proceedings.  In Nimako-Boateng (residence orders – Anton considered) [2012] UKUT 00216 (IAC) the UT had considered the position as it related to private law disputes in family proceedings, e.g. contact and residence of a child with their given parent, and that the typical orders arising out of those proceedings are not in effect binding on the SSHD but are relevant considerations when it comes to Article 8 and the best interests of the child.

In the second case of RS (immigration and family court proceedings) India [2012] UKUT 00218 (IAC), the UT considered the position in the context of public law care proceedings.  RS concerns an appellant who is from India and who became an overstayer.  He had also submitted an application to regularise his stay on the basis of his relationship to his wife and family life in the UK but before this was decided, he was convicted in June 2009 of possessing a false identity document, which, it was accepted, he had obtained and used in order to gain employment and provide for his wife and child.

As you can probably guess, the Appellant was sentenced to 12 months’ custody and upon completing that, was detained under immigration powers until he was released in March 2010.  Seemingly as a result of this, the Appellant’s wife struggled to care for their child on her own while he was in prison/detention and the conditions in the home deteriorated as well as her own mental health.  This prompted the local authority in February 2010 to issue care proceedings resulting in the child being removed from the mother’s care and placed in the interim care of the local authority with foster carers.  Within those proceedings, allegations and/or evidence later arose of the Appellant having been violent against his wife and that also became part of the local authority’s case in not wishing to return the child to the care of the Appellant and/or his wife.

Unsurprisingly, deportation action followed the Appellant’s conviction and so the matter came before the First-tier Tribunal in March 2010 while the care proceedings were being conducted in parallel.  The Appellant’s appeal was allowed by the FTT but following a permission to appeal application by the SSHD, errors of law in that decision were found and the appeal was re-heard by the UT.  The appeal was then dismissed on the basis that any interference with family life would be diminished if the Appellant’s wife and child could join him in India and that the interference was justified because it pursued the legitimate aim of the prevention of crime.  The UT had also concluded that it could not await the outcome of the care proceedings as otherwise each court would continue to wait for the other…

So after all of that, the Appellant sought leave to the Court of Appeal and permission was granted leading the parties to settle the matter and return by consent to the UT, when the same panel as in Nimako-Boateng (Mr Justice MacFarlane, The President and SIJ Martin) considered the case afresh resulting in this reported determination.

Grappling with the issue of the care proceedings, which had still not been concluded (not an unusual occurrence), the UT said this:

 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:

i)                Is the outcome of the contemplated family proceedings likely to be material to the immigration decision?

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?

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?

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?

3. Having considered these matters the judge will then have to decide:

i)                Does the claimant have at least an Article 8 right to remain until the conclusion of the family proceedings?

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?

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?

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?

We direct that in any report of these proceedings the identity of the child H and her parents shall not be revealed.

Procedurally, this appeal took a considerable time to be considered as it first went before the President and SIJ Martin in June 2011.  However a number of adjournments were granted in order to try and have the outcome of the care proceedings determined before the Appellant’s immigration matter was decided as the UT had rightly taken the view that the child’s best interests were likely to play a decisive role in the outcome of the deportation appeal.  However, due to a number of delays in the care proceedings this was put back a number of times and so in May 2012 (when the final hearing in the care proceedings was due to take place in June 2012), the panel decided to hear the matter as much as possible and release its ‘provisional determination’.

This case is important for a number of reasons.  Firstly, as mentioned above, this determination is not the final determination in the Appellant’s case but an indication of what the immigration decision will be on the two likely scenarios identified within the family proceedings i.e. if (a) the child will be rehabilitated to her parents’ care, the Appellant’s deportation would be disproportionate and in breach of the human rights of each member of the family (paragraph 54) but if (b) she will not be returned to her parents’ care, the Appellant’s deportation would not amount to such a breach and would be proportionate (paragraph 53).  The UT also felt that its “provisional conclusions” in relation to the Appellant’s immigration status may be helpful to the family court in reaching its final decision.

Secondly, the main guidance set by this case and contained in the headnote above, whilst clear in highlighting the potential relevance of family proceedings to a deportation/removal appeal, does arguably pose a risk in a Tribunal seeking to pre-judge this relevance.  As we have seen, family proceedings routinely take a very long time to be finalised and the possible outcomes can vary a number of times from the start to the end of those proceedings.

Thirdly, it shows again the need to have as much evidence as possible in respect of the relevant family life in order to avoid the Tribunal pre-judging this or taking the cynical view that any contact or other type of family proceedings are being instigated to frustrate the removal/deportation.

Fourthly, it illustrates the efforts of the UT to communicate with the District Judge who had conduct of the care proceedings and the UT’s expressed recommendation for improved communication between the two jurisdictions.  There already exists a form that family courts can use to obtain further information from the UKBA relating to a party’s immigration status/case (which I have to say does not usually result in much or reliable information) but there is no protocol for communication between the two jurisdictions.  From the UT’s comments in this respect (Para 47 for example), it might not be too long until this is established.

Finally, on a more tangental note, the UT considered the issue of the seriousness of the Appellant’s offence at paragraphs 31-33, and some helpful comments are made acknowledging the Appellant’s offence arising out of his wish to support his family rather than an attempt to deceive the UKBA in respect of his status here.  Indeed the UT also commented on the rather harsh scenario that the Appellant faced deportation action purely as a result of this intention [para 45].  The UT also had a brief look at the relevant criminal sentencing guidance for the offence of possessing a false identity document and reminded us of the guidance in  Sanade and others (British children –Zambrano – Dereci) [2012] UKUT 48 (IAC).

On the issue of financial support, the UT had actually requested the SSHD to give consideration to granting him permission to work pending the adjourned hearing of his appeal.  However this was never actioned by the SSHD but these types of directions are valuable to Appellants whose cases are adjourned rather than remitted back for a grant of Discretionary Leave following MS (Ivory Coast).

Sarah Pinder
Sarah Pinder Sarah is a specialist immigration barrister at Mansfield Chambers in London. She also practices in family law and has a particular interest in cross-over issues within the two areas of law. Prior to joining the Bar, Sarah worked for 6 years in the not-for-profit sector as a specialist immigration caseworker.

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