“It is very depressing. The law has been clear for the best part of 50 years ……… It should go without saying, but I fear there is need to spell out what ought to be obvious ……So far as I am aware, none of these principles have ever been challenged or doubted. Is it too much to demand that people pay more attention to them?”, so queried the President of the Family Division in apparent exasperation in The Secretary of State for the Home Department v GD (Ghana) (Rev 1)  EWCA Civ 1126 (25 July 2017). This was said during the course of seeking to reiterate the effect of family court orders in deportation and removal cases.
The President’s expressed exasperation may perhaps be understood if to appreciate that both tiers of the Immigration Tribunal allowed an Appellant deportee’s appeal on the basis of a residence order which no longer existed in law. Not only that, both tiers of the Tribunal were found not to have understood the legal effect of residence orders.
The Court of Appeal clarified that although the concept of a “residence order” was replaced with a “child arrangement order” by the Children and Families Act 2014, it was the regime under the Children Act 1989 that was relevant for this case.
The Court in GD further did not hesitate to criticise the lack of assistance given to the Tribunal by legal representatives in relation to provision of the relevant law. The Court stated that neither of the Tribunals was informed of the correct position about residence orders in general or the relevant residence order in particular. It was noted that Courts and tribunals are inevitably dependent on the submissions made on behalf of the parties to inform them of the applicable law, particularly in an area which is likely to be unfamiliar to them. The duty imposed on representatives to put the relevant law before a court or tribunal was considered to serve as an important public interest in the administration of justice. It was considered that in GD’s case, the Tribunals did not receive the assistance to which they were entitled. It was however noted that neither of the counsel who appeared before the Court of Appeal appeared at the hearings below.
The Secretary of State did not escape unscathed. The President of the Family Division referred to guidance given to criminal case work which states, inter alia, “ If you are considering the removal or deportation of a child who is subject to a Residence Order you must discuss the case with a senior case worker and the Officers of Children’s Champion (OCC) to find out what action is appropriate on a case by cases basis. You cannot remove a child without the conditions of residency being satisfied or without a Court Order.” This was the part which the President found “very depressing”. This was because the FTT also relied on this aspect of the guidance to erroneously allow GD’s appeal.
On 4 March 2010, GD’s fourth child, D, died as a result of force-feeding. GD became subject to deportation proceedings following a conviction 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.
GD’s husband(AFG) and children were Ghanaian citizens but all had leave to remain as GD’s dependents until 28 July 2011. 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 GD. Following GD’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 had commenced in respect of GD’s children, following the death of D. The children were 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, GD was released from prison on licence and granted immigration bail. She has since lived with AFG and the children.
GD’s appeal against deportation was allowed by the First-tier Tribunal. The Secretary of State’s appeal to the Upper Tribunal was dismissed by a decision issued on 13 May 2014. Permission to appeal to the Court of Appeal was granted by the Court itself.
The following was argued on behalf of the Secretary of State:
Both tiers of Tribunals proceeded on a false assumption that a residence order under section 8(1) of the Children Act 1989 in respect of GD’s children was still in force and, in any event, misunderstood the legal effect of a residence order.
Both Tribunals failed to weigh the very high public interest in the deportation of foreign criminals against the applicable rights of GD under article 8 of the Convention of Fundamental Human Rights and Freedoms and failed to consider the options that were open to GD’s family if she were deported.
The FTT and Upper Tribunal’s erroneous approach observed:
The Court of Appeal’s observations as regards the findings of the Tribunal were as follows:
It was noted that the First Tier Tribunal had been satisfied “that there is an extant Residence Order” dated 28 November 2011, providing that the children “are and will continue to reside in their father’s care”.
The FFT was satisfied that the Secretary of State had failed to take into account the Residence Order despite it forming part of the Respondent’s bundle. The FTT found that the appellant’s children had a right to reside in the UK under the Residence Order. Consequently it was disproportionate to remove GD in a case where her children have a right to remain and where the inference drawn from the order is that they wanted to express that right because none of these children wished to return to Ghana.
The FTT concluded that on all the evidence before them that it was disproportionate now to remove GD because the consequence of the Secretary of State’s decision was to separate the family members who saw themselves as a family unit. GD was found to have established that she fell within the exception set out in Section 33(1) of the 2007 Act and therefore her appeal was allowed.
The Upper Tribunal found no material error of law in the FTT’s approach. The Upper Tribunal considered that the Immigration Rules do not address the situation where there is a Residence Order in place. When evaluating Article 8 considerations outside the Rules, the FTT’s criticism of the Secretary of State for failing to take into account the Residence Order was sound. The Upper Tribunal found that the FTT was also entitled to take into account the failure of the decision maker to follow the guidance given to criminal case workers which required a decision maker considering the removal or deportation of a child who is subject to a Residence Order to discuss the case with a senior case worker and the Officers of Children’s Champion (“OCC”) to find out what is appropriate on a case by case basis. This did not happen.
The Upper Tribunal further stated that in relation to the criticism of the FTT for regarding the Residence Order as a decisive factor, that it was highly relevant to bear in mind that counsel for GD had submitted that it was UK policy that when a Residence Order was in force, leave should be granted, and that the secretary of state failed to address her own policy. It was noted that the presenting officer did not appear to have challenged that description of the policy. In those circumstances the FTT’s focus on the absence of any consideration of the Residence Order by the Secretary of State was considered to be entirely understandable.
The Upper Tribunal stated that it was obvious from the terms of the Residence Order itself that the children could not be lawfully removed from the UK unless and until that Order was lifted or varied, as the FTT had stated in their decision. Thus before the children could be removed, the Family Court would have had to have been informed and given its approval. Moreover, as the FTT also pointed out even before any steps could be taken in that regard, the OCC would have to have been consulted, but no such consultation had taken place. The Upper Tribunal stated that it was obvious that any discussion of the matter with the OCC and with a Judge of the Family Court was likely to have taken into account the age of the children, the safety implications of their removal, the strength of their connections with the UK and the impact on them of further disruption by removal, as well as their own wishes.
The Upper Tribunal stated that the FTT very properly refused to speculate what might have happened if steps had been taken in the Family Court for permission to remove the children to Ghana. While the residence order was in force, it precluded the children from leaving the UK without further court order and therefore there was, at the very least, no immediate prospect of the family moving to Ghana
Observations by the Court of Appeal as to relevant law relating to residence orders:
It was noted that a “residence order” was an order under section 8(1) of the Children Act 1989, defined as “an order settling the arrangements to be made as to the persons with whom a child is to live”.
It was noted that with effect from 22 April 2014, the concept of a “residence order” was replaced with a “child arrangement order” by the Children and Families Act 2014, but it was the regime under the Children Act 1989 that was relevant for this case.
It was observed that the residence order as regards GD’s children ceased to have effect by 24 October 2013. Section 11(5) of the Children Act 1989 provided:
(a) a residence order has been made with respect to a child; and
(b) as a result of the order the child lives, or is to live, with one of two parents who each have parental responsibility for him,
the residence order shall cease to have effect if the parents live together for a continuous period of more than six months.”
Court of Appeal’s conclusions:
GD was released from prison on 23 April 2013 and immediately resumed, and has since remained, living with AFG and their three children. It followed that the residence order ceased to have effect, by operation of section 11(5), by 24 October 2013.
Both the FTT and the Upper Tribunal appeared to have misunderstood the effect of a residence order. The Upper Tribunal stated that the residence order “automatically gave AFG parental responsibility for the three children”. In fact, AFG already had parental responsibility for the children as a result of being married to GD at the time of their births. Both Tribunals thought that the children could not be relocated to Ghana without the leave of the court. The Court of Appeal considered that the leave of the court would have been required, while the order was in force, only if both parents, being the persons with parental responsibility, did not consent. It would not therefore have been the order that prevented the children relocating to Ghana but the refusal of GD or AFG to give their consent. The FTT understood that the residence order gave the children a right to live in the UK. If, as appeared to be the case, the FTT thought that a residence order had any relevance to a child’s immigration status in the UK, this was an error.
As regards the submission that the Upper Tribunal failed to take account of the option of AFG and the children relocating voluntarily to Ghana as they were all Ghanaian citizens with strong family and cultural links with Ghana, the Court of Appeal found this criticism well-founded. It was considered that given the very strong public interest in the deportation of foreign criminals, it was necessary for a Tribunal to identify and analyse the counter-balancing factors so as to come to a clear view of their weight. Only in this way would it be seen why effect had not been given to that strong public interest. Given that the FTT had based their decision almost exclusively on the residence order, they had not analysed and weighed the option of a voluntary return by the children to Ghana. In view of their nationality and close links with Ghana, this required a careful examination.
The Court of Appeal concluded that the decision of the Upper Tribunal could not stand. The Upper Tribunal erroneously gave weight to a non-existent residence order and they failed to take account of the potentially significant factor of a voluntary return by the family to Ghana or to consider or explain the weight to be attached to that factor.
The President of the Family Division’s contribution:
The President considered that he would deal with the wider points as the impact and effect of section 11(5) of the Children Act 1989 had already been dealt with and he noted as follows:
Lord Justice David Richards was justly critical of the failure of the parties to assist the FTT and the Upper Tribunal. The President added that he found both the general lack of clarity in, and specifically the contents of the last paragraph of the Secretary of State’s guidance surprising. He considered it very depressing as the law had been clear for the best part of 50 years.
The President cited several judgments, including family court cases from 1968 until 2005 and in particular made reference to R (Anton) v Secretary of State for the Home Department; Re Anton  EWHC 2730/2731 (Admin/Fam),  2 FLR 818, which states at paragraphs 33-34: 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 or cannot make such a child a ward of court. Nor does it mean that the family court cannot make a care order in respect of such a child. What it does mean, however, and this is the important point, is that neither the existence of a care order, nor the existence of a residence order, nor even the fact that the 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.” And “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. The wardship judge cannot restrain the exercise by the Secretary of State for the Home Department of his power to remove or deport a child who is subject to immigration control …
The President stated that it should go without saying, but there was a need to spell out what ought to be obvious: exactly the same principles now apply in relation to child arrangement orders as applied previously in relation to residence orders. None of these principles have ever been challenged or doubted.
The President however made it clear that the fact that, in law, the Secretary of State is not bound by an order of the Family Court, as it now is, or of the Family Division, does not, of course, mean that she could simply ignore it.
The President concluded that the law is that the Secretary of State when exercising her powers of removal or deportation is not bound by any order of the Family Court or of the Family Division and that the Secretary of State, if she wishes to remove or deport a child or the child’s parent, does not have to apply for the discharge or variation of any order of the Family Court of Family Division which provides for the child or parent to remain here.
The real problem arose initially from the absence of any consideration of the Residence Order within the Secretary of State’s decision. The problem continued within both tiers of the Tribunal, as it appears from the judgement none of the parties appearing before the Tribunal nor the Tribunal itself were none the wiser as to the relevant law. The issue could really in practice have been alleviated by the Secretary of State reaching effective and well- researched decision making based on the evidence before her: throwing into the mix what was relevant and expressly explaining away the evidence in contention as irrelevant- by reference to proper immigration and family law….. and caselaw. It was not enough to simply ignore the gaping hole in relation to the residence order thereby neglecting the issue to be resolved at appeal. As it subsequently emerged, submissions and decisions were being made in a vacuum in the Tribunal, with the appeal subsequently going all the way to the Court of Appeal, having considerable expense and time being expended when matters could very probably have been resolved correctly by the Tribunal much earlier.