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The interplay between immigration and family proceedings – Part 1

Two cases were reported very recently from the Upper Tribunal both looking at the impact of family court proceedings and orders on immigration proceedings and vice versa.  The first case of Nimako-Boateng (residence orders – Anton considered) [2012] UKUT 00216(IAC) is dealt with in this post leaving the second case of RS (immigration and family court proceedings) India [2012] UKUT 00218 (IAC) to tomorrow.

We will see that both cases add further guidance to the case-law so far of Ciliz v Netherlands (Application no. 29192/95), MS (Ivory Coast) v SSHD [2007] EWCA Civ 133 and MH (pending family proceedings-discretionary leave) Morocco [2010] UKUT 439 (IAC), which all deal with cases of pending family proceedings and recommend (in a nutshell) that the immigration appeals should either be adjourned/stayed or the appeal should be allowed to the extent that the matter is remitted back to the SSHD for the Appellant to be granted a period of Discretionary Leave in order to enable them to fully take part in those family proceedings.

Both new cases were heard by Lord Justice McFarlane (a very experienced family judge), the President Mr Justice Blake and UT Judge Martin and make reference to each other as both were heard on the same day.

The head-note of Nimako-Boateng states:

A residence order or prohibited steps order made by a judge of the family court under s.8 of the Children Act 1998 do not bind the Secretary of State for the Home Department.

The decisions of family courts in respect of the welfare and best interest of children are important sources of information for judges considering immigration appeals. If an appellant wishes to advance a case that the child’s welfare will be jeopardised by removal because it would break up existing patterns of contact with another parent or relative, one would expect to see clear and reliable evidence submitted to that effect. See RS (immigration and family court proceedings) India [2012] UKUT 00218(IAC). 

We direct that IA’s name and identity be not disclosed in any report of these proceedings without leave of the Tribunal or further order.

As the headnote makes clear, the UT has confirmed that an order of the Family Courts, such as a residence order, which stipulates with whom a child is to live, cannot itself bar the SSHD from taking removal action against a person concerned with such an order.  The Appellant had tried to argue that, because she had a residence order and a prohibited steps order in her favour, the child (and her as a consequence) could not be taken out of the Jurisdiction.

The UT held that that is not right because a) the prohibited steps order, forbidding the child to be taken out of the jurisdiction, was directed to the child’s father and not the SSHD, b) similarly, the residence order is not to be treated as directed to the SSHD, who is also not a party to the family proceedings, c) no removal decision had been taken in the Appellant’s case and d) even if the various family orders did have some effect on the actions of the SSHD, the relevant orders could always be varied upon an application to the family court before removal was actually effected [Paragraph 29].

The family case of R (Anton) v SSHD [2004] EWHC 2730/31 (Admin/Family); [2005] 2 FLR 818 was relied upon and cited by the UT:

[33] A judge of the Family Division cannot in the exercise of his family jurisdiction grant an injunction to restrain the Secretary of State removing from the jurisdiction a child who is subject to immigration control-even if the child is a ward of court…..

[34] This does not mean that the family court cannot make a residence order in respect of a child who is subject to immigration control….What it does mean, however, and this is an important point, is that neither the existence of a care order, nor the existence of a residence order, nor even the fact that a child is a ward of court, can limit or confine the exercise by the Secretary of State  of his powers in relation to a child who is subject to immigration control.”

Being a ‘ward of court’ means that the court is essentially the child’s guardian and all decisions regarding that child’s upbringing must be approved by that court.

Plainly, it does not mean that family orders are not relevant to immigration proceedings against a decision to remove or to vary leave, because such orders and/or any further evidence of the arrangements for the child’s care and relationship with their parent(s) will obviously go towards Article 8 and an assessment of the best interests of the child.  Similarly, the UT reminds us that the family courts are best placed to evaluate the latter with the investigatory tools at its disposal including the Children and Family Court Advisory Support Service known as CAFCASS.

Do note however that the UT did not find in favour of the Appellant under Article 8 due to, in part, what is described as her “remarkable history of deception”.  This included applications made in false identities and a fraudulent EEA spouse application.  The Appellant’s history also resulted in her being convicted of perjury before the family courts and in relation to the immigration applications, of obtaining leave to enter by deception by providing a false name.

So whilst both the Tribunal at first instance and the UT recognised the child as the innocent victim of her mother’s activities, the latter, together with a lack of evidence of the child’s contact and relationship with her father in the UK, meant that the Appellant did not succeed in her appeal.  However, as a final note, the UT also noted the length of the child’s residence which amounted to 10 years enabling her to apply to register as a British Citizen under s.3(1) of the British Nationality Act 1981.  The UT panel commented that a further decision, i.e. the removal decision, needs to be made with respect to the mother and “the passage of time may have an impact on whether the child can or should not be required to return”.  So not quite the end for this case…

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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