A mother or father subject to deportation proceedings may be caught up in a dilemma where they have a pending appeal in the immigration Tribunal either imminently to be heard or being heard whilst an application is pending in the family courts in relation to access to a child residing in the UK who is either a British citizen or has leave to remain. The question is whether to request an adjournment or proceed with the appeal without knowing the final decision of the family courts as regards their view where the best interests of the child lies.

The adverse consequences usually arise where the Tribunal proceeds to decide a deportation appeal and dismiss it rather than either grant an adjournment or allow the appeal directing a grant of a period of discretionary leave to remain pending the outcome of the family proceedings.

The Home Office argument among others is likely to be that family proceedings have been commenced merely to delay or frustrate removal and not to promote the child’s welfare.

An Appellant’s argument on the other hand is that there is risk to his(and the child’s) Article 8 rights which may be violated where the Tribunal appears to be prejudging the outcome in the family proceedings by going ahead to decide a deportation appeal without knowing the family court’s resolution as to those family proceedings.

The recent case of Mohammed( Family Court proceedings-outcome) 2014 UKUT 419 IAC shows the Tribunal refusing to grant an adjournment where the Appellant had a child involved in child care proceedings. This decision appears at first sight to be in conflict with the decisions in RS( Immigration and Family Court Proceedings) India 2012 UKUT 218 (IAC) and Mohan v Secretary of State for the Home Department 2012 EWCA Civ 1363

THE FACTS OF THE RESPECTIVE CASES

Mohammed in summary concerned an appeal where the Appellant, an Ethiopian national subject to deportation proceedings had about 22 criminal offences during a 3year period including several convictions for violence and one for the supply of drugs. His index offence related to an offence of burglary for which he was sentenced to 30months imprisonment. The Appellant’s child became the subject of a Full Care Order and for so long as it remained, extant parental responsibility was vested in the Social Care Trust. Although indirect contact had been given to the Appellant, he sought direct contact with his child in the long term. The Appellant had requested an adjournment by reference to family proceedings relating to his daughter on the basis that he wished to obtain further up-to date information about his daughter’s situation. The Upper Tribunal concluded that the First Tier Tribunal had not erred in deciding and dismissing his appeal without granting an adjournment.

Mohan concerned the case of a Jamaican national. He previously entered the UK but following a period of overstaying he was removed to Jamaica but returned 3months later using a false passport. He was however later on convicted of possession of a class A controlled drug with intent to supply. He was sentenced to 30months imprisonment and became liable for automatic deportation. Prior to his imprisonment the Appellant had previously applied for a residence order for one of his children. The County court adjourned the family proceedings generally with liberty to restore soon after he received the prison sentence. By the time his deportation appeal was heard, the family proceedings remained unresolved. The issue in the appeal was whether the Upper Tribunal fell into material legal error when it dismissed the Appellant’s appeal rather than granting him a limited period of discretionary leave to remain or adjourning the appeal pending resolution of the family proceedings. The appeal was allowed by the Court of appeal and the Court remitted the case to the Upper Tribunal so as to approach its task in the manner prescribed in RS.

The case of RS concerned an Appellant, an Indian national who had married a UK born British citizen of Pakistan ancestral origins. They had a child together. During a domestic violence disturbance, the police were called to the house and a false identity was found in his possession, ie a false Italian passport. He was convicted of the offence of possession of a false identity document and given a sentence of 12months imprisonment. Following service of his conviction he was released and he returned to the matrimonial home however was subject to automatic deportation proceedings. Whilst detained, the local authority had become involved in the child’s welfare as a result of a GP referral to social services. There were also concerns regarding the mother’s mental health and her ability to cope with the child alone. An emergency protection order was made and the child was taken into interim care and proceedings were continuing in the county court. It was submitted on the Appellant’s behalf that the most appropriate course of action was to adjourn pending the outcome of the family court decision. The Tribunal adjourned proceedings until after the decision of the family proceedings was known.

LEGAL ISSUES

The case of RS sets out the Upper Tribunal’s guidance on the approach to be taken in cases such as these where the automatic deportation procedure arises in the context of an Article 8 claim which is also in the course of consideration in family proceedings.

The guidance is set out below;

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?

The case of Mohan endorsed the approach in RS and indicated that this approach represented the correct reconciliation of the conflicting concepts of automatic deportation and family proceedings.

Both Mohan and RS referred to the cases of Ciliz v The Netherlands 2000 ECHR 265 and MS( Ivory Coast) v Secretary of State for the Home Department 2007 EWCA Civ 133

The case of Ciliz sets out the following in summary:

“66. In determining whether an interference was ‘necessary in a democratic society’, the Court will take into account that a margin of appreciation is left to the Contracting States. It recalls that the Convention does not in principle prohibit Contracting States from regulating the entry and length of stay of aliens … Nevertheless, the Court also reiterates that, whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8:

What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as ‘necessary’ within the meaning of Article 8 (see W v United Kingdom, 8 July 1987, … and McMichael v United Kingdom, 25 February 1995).

71. In the view of the Court, the authorities not only prejudged the outcome of the proceedings relating to the question of access by expelling the applicant when they did, but, and more importantly, they denied the applicant of all possibility of any meaningful further involvement in those proceedings for which his availability for trial meetings in particular was obviously of essential importance. It can, moreover, hardly be in doubt that when the applicant eventually obtained a visa to return to the Netherlands for three months in 1999, the mere passage of time had resulted in a de facto determination of the proceedings for access which he then instituted … The authorities, through their failure to coordinate the various proceedings touching on the applicant’s family rights, have not, therefore, acted in a manner which has enabled family ties to be developed.

72. In sum, the Court considers that the decision-making process concerning both the question of the applicant’s expulsion and the question of access did not afford the requisite protection of the applicant’s interests as safeguarded by Article 8. The interference with the applicant’s right under this provision was, therefore, not necessary in a democratic society.”

The case of MS provides;

“70. In our judgment the AIT did not decide the hypothetical question it was incumbent upon it to decide, namely whether the appellant’s Article 8 rights would be violated by a removal when the case was before it i.e. when the contact application was outstanding. Time has moved on. It is now 9 months since the AIT’s decision. The circumstances will be different. The AIT will need to know what has happened in the contact proceedings. One can envisage arguments both ways. Mr Bourne points out that the facts are some way removed from those in Ciliz. The appellant has served a lengthy prison sentence for physical abuse of her children and, as far as we are aware, has not seen them for some time. The present views of the children and their father are unknown. If the AIT had decided the question it should have decided and concluded that her Article 8 rights would be violated by her removal then the next question would have been the length of discretionary leave to remain and quite a short period might have been appropriate to cater for the outstanding contact proceedings; it could of course always be extended. The AIT had jurisdiction to decide this issue (see s 87 2002 Act).

71. Whilst it is correct, as the authorities show, that the decision maker is, to an extent, required to consider a hypothetical situation, it is neither required nor appropriate to speculate about the future. Thus questions about what may happen, for example, to the appellant’s mental health in circumstances as yet unknown were irrelevant to the AIT’s consideration.

72. The appellant was entitled to have determined whether removal from the United Kingdom with an outstanding contact application would breach s 6 of the Human Rights Act 1998. That question was capable of resolution one way or the other. What was not appropriate was to leave her in this country in limbo with temporary admission and the promise not to remove her until her contact application has been concluded. Temporary admission is, as we have explained, a status given to someone liable to be detained pending removal. If the appellant had a valid human rights claim she is not liable to be detained pending removal. And if she has not, she ought to be removed. If she is entitled to discretionary leave to remain she ought to have it for the period the Secretary of State thinks appropriate, together with the advantages that it conveys; and if not she ought not to.

73. In the course of argument the point was made that circumstances could arise where a contact hearing was likely to be resolved in, for example, a matter of days. It would in those circumstances be impractical to expect a human rights decision without knowing the outcome of that application. In our judgment that is the kind of situation that can be dealt with by appropriate case management. “

75. On the point of principle the AIT should have decided whether the appellant’s removal on the facts as they were when they heard the appeal, i.e. with her outstanding application for contact with her children, would have violated Article 8 of the ECHR and thus put the Secretary of State in breach of s 6 of the Human Rights Act 1998 if he removed her. It was not open to the AIT to rely on the Secretary of State’s assurance or undertaking that the appellant would not be removed until her contact application had been resolved. Nor was it appropriate to speculate upon whether there might be a violation of Article 8 on different facts at some point in the future. Had the AIT decided the Article 8 point in the appellant’s favour she should have been granted discretionary leave to remain as envisaged in the API of January 2006. This could have been for quite a short period, whatever was regarded as sufficient to cover the outstanding contact application. It would have been open to the appellant later to apply for the period to be extended should the circumstances so warrant. It was open to the AIT under s 87(1) of the 2002 Act, if it allowed the appeal, itself to fix the period of discretionary leave to remain. Alternatively it could have remitted that question to the Secretary of State. “

THE DIFFERING CONSIDERATIONS

In Mohammed, the following counted against him;

• he had a serious and persistent history of criminal offending and he had been in the UK illegally the entire time; this counted against him in the proportionality assessment;
• he had already earlier on obtained an adjournment of his immigration appeal so that family court documents could be produced(which they were);
• there had been at least 3 other adjournments for various reasons;
• Documents the Appellant produced showed that the Family Court not only had refused to order direct contact but had ordered that his daughter and her half sister remain in the care of the local authority until they were 18. There was nothing to show that the indirect contact was qualified by any suggestion that it might be changed to direct contact. The documentary evidence showed that the Family Courts had reached a concluded view as to the best interests of the children which identified them as entailing no direct contact with the Appellant and the Appellant failed to substantiate that the Family Court had left it open that the Appellant could become more directly involved in his daughter’s life. The Family Court had concluded that the time for attempting a possible long term rehabilitation of the Appellant even if he was allowed to stay was long since past;
• it had been established by the Family Courts that his daughter’s best interests lay with remaining in care, away from her father and her mother who had mental health problems ;
• the Appellant had never lived with his daughter as a family unit;
• where a decision is made approving long-term foster care, such an arrangement clearly envisages permanent separation of the child from its parents;
• the Appellant did not need a further adjournment so he could pursue family proceedings as he had already pursued them with the result that the “core decision” in the family proceedings had already been taken with the outcome that he had been unsuccessful in obtaining direct contact;
• this was a case in which the substance of the judgment from the Family Court had been known to the First Tier Tribunal which acted accordingly and as such did not err in law to dismiss the Appellant’s appeal

What counted in favor in the Mohan case was;

• although the progress with the residence application was desultory for some time and the Appellant had been arrested, there was some evidence that he was attempting to progress it at that time, however the mother of the child was uncooperative;
• it could not be said that the inception of the application was a cynical ploy or an attempt to thwart removal by reference to a crime he had not yet committed; in view of the fact of his continuing custody, it was not surprising that he had been advised by his solicitor that he could not sensibly pursue them at that time; he had prior to the hearing in the Tribunal instructed his solicitors to pursue the application; its prospect of success would become realistic only if and when he obtained bail;
• the Appellant had a caring and loving relationship with all of his children and they felt the same way about him however the mother of the child was characterized as feckless and irresponsible;
• the revival of the residence proceedings did not have an ulterior motive;
• there was sufficient material before the Upper Tribunal to compel the conclusions that the family court could come to the conclusion that it is contrary to the child’s best interests to reside with his mother and emphatically in accordance with those interests for the child to reside with the Appellant. The family court was best placed to make the necessary evaluation;
• this was not a case where a Tribunal can conclude that the material before it will justify a conclusion that to delay determination of the deportation appeal in order to await the judgment of the family court is unnecessary because the material in favor of the Appellant lacks substance and the public interest in deportation is overwhelming;
• the judgment of the family court with all the tools at its disposal could and should inform the decision- making of the Tribunal on the issue of proportionality of deportation in relation to the best interests of the child

In RS the following counted in his favor:

• the view was that the child’s best interests were likely to play a decisive role in the outcome of the deportation appeal and as such there was no alternative but to adjourn Tribunal proceedings until the family court had examined all the information available to it and determined where those best interests lay;
• it was accepted by the Tribunal that the use the Appellant put the passport to, whilst undermining an aspect of immigration control and therefore serious was to support his family pending a decision on his application rather than to deceive the Home Office by falsely representing that he did not need permission to reside here;
• the proceedings started at a time when the family had lost the financial and other material support of the Appellant who had been in detention for 10months;
• following the Appellant’s acknowledgment of his previous violent conduct towards his wife, the Appellant had been seeking psychotherapy and counselling;
• the Appellant and his wife had been seeing their child regularly 3 times a week for two hours;
• the Appellant had not been allowed to work since his release on bail and the longer legal proceedings took to resolve the important issues, the greater the burden of self-sufficiency or dependence on a relative’s social security entitlement is likely to be; his automatic deportation appeared to have come about as a result of his intention to make his family sufficient. An inability to support his family may adversely impact the family proceedings themselves

IMPORTANCE OF AWAITING RESOLUTION OF THE FAMILY PROCEEDINGS

The final outcome in the case of RS is set out in RS (immigration/family court liaison: outcome) [2013] UKUT 82(IAC)

RS( No. 2) emphasises that before undertaking any balancing exercise in assessing the Article 8 case, what must first be identified is where the child’s best interests lie and that by deferring the immigration decision until the family court reached its conclusions the Tribunal had available to them the authoritative assessment of the Final Care Plan. The Tribunal observed that the appeal provided an example of the importance of co-operation and communication between the two jurisdictions ie family and immigration, where two sets of parallel proceedings, closely dependent upon each other are ongoing. The Tribunal stated that in this case the Judges in each jurisdiction recognised the importance of their decision-making to what takes place in the other and for that reason there was close co-operation and sharing of information.

The family court concluded the proceedings before it by making a Final Care Order.

There were no plans for reunification with the parents. Long-term foster care was the only possible permanent placement for the child, as no adoptive parents were identified. It seemed clear to the Tribunal that no one envisaged the child’s return to the care of her parents. The Tribunal considered on the basis of the material before them that the parents were unable to demonstrate that they were capable of providing adequate care for the child. There was clearly no expectation that the child would return to their care in the future. The Care Plan envisaged the child’s long term future as being a fully integrated member of the foster family. The Care Plan reflected the child’s best interests. The Tribunal considered that it was clear that the child’s best interests did not lie with her parents.

The Tribunal concluded that if the family court was satisfied as to that arrangement when her best interests are the paramount consideration then it followed that the Tribunal was satisfied when considering her best interests as a primary consideration that deportation did not interfere with the child ‘s best interests. The Tribunal considered that they now had an authoritative ruling on what the child’s best interests were and how they impact on the Appellant’s removal. The Appellant’s deportation was therefore not unlawful on human rights grounds and his appeal was dismissed.

PRACTICAL CONSIDERATIONS

Although the family proceedings in RS (No.1) had been pending for more than 2years, and there was no certainty as to when the family proceedings would be resolved, the outcome of the family proceedings was considered material to the decision in the deportation appeal justifying the Tribunal in adjourning the appeal for a period to enable the family proceedings to be completed. It is however noteworthy that even there the Tribunal expressed reluctance in granting the adjournment.

Having regard to the alternative argument of seeking that the appeal be allowed with a direction to grant leave whilst the family proceedings are being resolved, it may be of use as a matter of practical reality in an appropriate case to pursue this course of avenue as it avoids leaving an Appellant in uncertain limbo while lengthy family proceedings are yet to be resolved.

The Home Office however are not only expected to resist a request for an adjournment but will most likely seek to remove the basis of a request for a grant of leave on the basis that the family proceedings are intended to merely delay deportation. Much would therefore also depend upon an Appellant’s criminal history of offending including immigration history as in Mohammed and also the level of contact with the child before arrest and where applicable following any grant of immigration bail.

Where the family courts have more or less made a “core decision” in the case, then where that decision appears not to require the Appellant’s presence in the child’s life, then it may be best to rethink any request for an adjournment or a grant of leave to remain and consider other avenues of argument during the appeal.

The Tribunal in RS (No. 1) observed that there will need to be informed communication between the Judge deciding the immigration question and the Judge deciding the family question. RS(No.2 ) shows the usefulness of the cooperation between the respective courts. However in practice this does not happen in most cases as adjournment issues are usually decided on the basis of the material, however limited, submitted by the Appellant or his immigration legal representatives. It may therefore assist a case where as soon as it is known that family proceedings are pending that steps are taken to communicate directly and frequently with the family solicitors representing the Appellant so that where either an adjournment or grant of leave is sought from the Tribunal, relevant up to date material may be available. This may possibly avoid a detailed investigation during the Tribunal proceedings as regards the exact stage of the family proceedings as this may detract from the real arguments in favor of any adjournment/grant of leave to remain request.

Where a request to allow the appeal has to be made on the substantive day of the hearing and the Tribunal is minded to allow the appeal with a view to directing a grant of limited leave to remain whilst family proceedings are pending, then it may be worth considering where possible that the Tribunal make findings on the primary facts of the case and consider the various outcomes in the deportation appeal also taking into account the possible outcomes in the family court. Alternative outcomes in the family proceedings may be adoption, long-term fostering or a return of the child to the Appellant or contact may be granted to the Appellant. Findings of fact in the deportation appeal may assist the Court in family proceedings in order to avoid a situation where the family courts themselves are minded not to make a decision until the outcome of the immigration appeal.

Where new facts emerge after the family proceedings, further representations can always be made at the Tribunal’s direction where the immigration appeal is to proceed further.

Requesting an adjournment in an appropriate case may therefore assist the Tribunal in making a reasoned decision following resolution of the family proceedings and will hopefully result in a decision being made that truly takes into account the best interests of the child.