When a deportee makes a fresh claim on family life grounds: Best interest of a British child, the evidence and Paragraph 353 examined by the Admin Court

In an unusual case, concerning a  foreign national criminal, where the effect of deportation was intended  to separate  mother from  British child, in MG, R (On the Application Of) v The Secretary of State for the Home Department [2018] EWHC 31 (Admin) ,   the Administrative Court  concluded that the Secretary of State’s  refusal to treat the Claimant’s submissions in relation to her relationship with her daughter as a fresh claim in light of the evidence submitted was irrational and should be quashed and re-taken.

The Claimant, MG,  sought to reply  upon Paragraph 353 of the  Immigration Rules  in raising  representations  as regards her family life with her  British minor  daughter, who was living with her father.  MG also sought to resurrect a  trafficking claim   that had previously been considered. A claim for unlawful detention also  formed part  of the judicial review proceedings. Only the Article 8  challenge under Paragraph 353 succeeded, with  the Court finding that the Secretary of State’s refusal to treat the Claimant’s various sets of further submissions as fresh claims was unlawful.

 

Background in Summary:

 

The Claimant, a Namibian national,  entered the UK in 2006, overstayed her leave, thereafter committed several criminal offences and became  subject to deportation. Although MG’s appeal against deportation succeeded  with the result that a  deportation order of 2012  was revoked, MG subsequently  overstayed  the leave that was   granted  following the successful appeal.

 

In 2014, the Claimant was arrested for breach of the peace whilst under the influence of alcohol. She  was served with a further deportation letter with an out of country right of appeal. MG appealed against the deportation decision and made an asylum claim. On 13 October 2014, the Secretary of State sent a supplementary decision letter dismissing the asylum and human rights claims. On 12 February 2015, the Claimant’s appeal was dismissed by the First-tier Tribunal.

 

After MG became appeal rights exhausted, she submitted several sets of representations which were considered and  refused,  however the most relevant for current purposes were those submitted on 24 March 2016 and 29 March 2016, relying upon  paragraph 353. The representations  claimed that MG  had an ongoing and subsisting relationship with her daughter and that removing her to Namibia would breach her rights under Article 8 European Convention on Human Rights  and contended that consideration be given to that relationship under section 55 of the Border, Citizenship and Immigration Act 2009. The representations were refused by decision of  6 April 2016  without a right of appeal.

 

MG sent a Pre-Action Protocol letter of claim. On 18 April 2016, the Secretary of State  rejected the further submissions dated 4 and 6 April 2016 and responded to the Pre-Action Protocol letter  and maintained a decision to refuse. On 20 April 2016, the Claimant issued judicial review proceedings.

The relevant law – Paragraph 353 of the Immigration Rules:

 

Paragraph  353 of the Rules  provides as follows:

 

“Fresh Claims

When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”

Some relevant caselaw considered  in MG in relation to fresh claims:

 

The Court in MG summarised  the  relevant principles  arising as follows :

 

Whether further submissions constitute a fresh claim on asylum or human rights grounds is a matter for the Secretary of State.  A decision as to whether a fresh claim arises can only be reviewed on Wednesbury unreasonableness grounds.

As  regards the task of the Secretary of State when considering further submissions, the question for the Secretary of State  is whether there is a realistic prospect of success in an application before an Immigration Judge.

The question which the Secretary of State must ask herself is “whether an independent tribunal might realistically come down in favour of the applicant’s asylum or human rights claim, on considering the new material together with the material previously considered” .  In answering that question she  must be informed by anxious scrutiny of the material.

In relation to the task of the Court, it should be noted that the  decision remains that of the Secretary of State and her determination is only capable of being impugned on Wednesbury grounds (irrationality). When reviewing a decision by the  Secretary of State, the Court will ask two questions:

 

  • First, has the Secretary of State asked herself the correct question? In the context of a human rights case, the correct question is whether there is a realistic prospect of an Immigration Judge, applying anxious scrutiny, concluding that there will be a breach of a Claimant’s human rights on his or her return home.

  • Second, in addressing that question, has the Secretary of State satisfied the requirement of anxious scr

  • utiny?

Relevant Immigration Rules  considered- Article 8 and the public interest in the deportation of foreign criminals

 

As provided in the Immigration Rules:

 

“A362. Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these rules as at 28 July 2014 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.

A398. These rules apply where:

(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom’s obligations under Article 8 of the Human Rights Convention;

(b) a foreign criminal applies for a deportation order made against him to be revoked.

  1. Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and:

(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months;

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

  1. This paragraph applies where paragraph 398 (b) or (c) applies if –

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision;

and in either case

(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported;

399A. This paragraph applies where paragraph 398(b) or (c) applies if –

(a) the person has been lawfully resident in the UK for most of his life; and

(b) he is socially and culturally integrated in the UK; and

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.”

 

Relevant  statutory considerations – Article 8 and the public interest in the deportation of foreign criminals

 

Sections 117A to 117D of the Nationality, Immigration and Asylum Act 2002, entitled “Article 8 of the ECHR: Public Interest Considerations” gives statutory expression to the above provisions.

 

As set out at section 117C (Article 8: additional considerations in cases involving foreign criminals):

 

“(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where—

(a) C has been lawfully resident in the United Kingdom for most of C’s life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”

Caselaw on deportation  considered:

 

Caselaw on Article 8 considered on children’s best interests:

 

The Court summarised the relevant  principles arising from the above caselaw as follows:

The assessment of the child’s best interest must focus on the child, while simultaneously evaluating the reality of the child’s life situation and circumstances. The child’s best interests have a freestanding character.

Article 24 of the EU Charter of Fundamental Rights creates a free standing right. Article 24(3) mandates that every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both her parents, unless that is contrary to his or her interests.

Section 55 of the Borders Citizenship and Immigration Act 2009 obliges the Secretary of State to devise systems and structures for the purpose of safeguarding and promoting the welfare of children who are in the UK.  In  relation to  section 55 of the 2009 Act, the  substance of the primary duty must be properly acknowledged, the relevant children must be identified and their best interests must then be considered, to be followed by a considered balancing exercise. In assessing the best interests of the affected child, the decision maker must be properly informed. Furthermore, it must be apparent from the terms of the decision that the best interests of the child, as assessed, are ranked as a primary consideration and accorded a primacy of importance. The second duty imposed by section 55 is to have regard to the statutory guidance promulgated by the Defendant: Every Child Matters – change for children, November 2009.

Children must be recognised as rights holders and not just as adjuncts to other people’s rights.

 

The basis  upon which the Tribunal dismissed the Article  8 claim in 2015:

The Tribunal dismissed the Appellants appeal on the following basis:

“37. The Appellant’s daughter in the UK is in the custody of her father. Her daughter is a British citizen and I have noted the details of the Contact Order. The Appellant showed me a few cards and photos and messages that she has sent her daughter in the UK. However, it is that difficult to see how much contact they have had since she was born in 2009 (sic). The relationship was turbulent with her daughter’s father and the Appellant left permanently in 2010 when she was drinking heavily. I have not been given any further details of her relationship with her daughter.

38.In the circumstances I cannot be persuaded that the Appellant has a genuine and subsisting relationship with her daughter it is in the child’s interest to remain with her father (sic). The Appellant can have contact with her daughter and this could be maintained from Namibia by modern technology and visits. Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh.

39.She has one daughter in Namibia with whom she could be reunited. Therefore I cannot find that there would be breaches of Article 8 were she to be removed.”

The basis upon which the Article 8 representations was  refused by the Home Office in 2016:

 

The  Secretary of state refused MG’s  representations on the  following  grounds:

 

  • MG was noted to have submitted a plethora of documents as evidence of  her relationship with her daughter, including evidence that she had  received visits from her daughter whilst in detention, and cards and letters, to and from MG  and her  daughter and her former partner.

  • Whilst it was accepted that the evidence provided did indicate that MG  had  some form of relationship with her daughter; she had been absent for almost all of her daughter’s life and as such, any relationship they did  have would  be extremely limited in nature.

  • It was noted  that the Immigration Judge  found  in MG’s appeal against deportation: “Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh”.

  • The best interests of the child were served by her remaining in the United Kingdom with her father, who had cared for her since her birth. It was also observed that in MG’s appeal against deportation, the Immigration Judge found: “…it is in the child’s interests to remain with her father. The Appellant can have contact with her daughter and this could be maintained from Namibia by modern technology and visits.”

  • There was no evidence  to conclude that MG’s  presence  was  needed to prevent the  daughter from being ill treated, her health or development being impaired, or her care being other than safe and effective.

  • There was no suggestion that the daughter relied on MG  either emotionally, or financially. There was  no evidence which would indicate that MG had  provided financially towards the care of her  daughter, either currently, or in the past.

  • It was acknowledged that MG’s absence would likely result in some negative emotional impact on her  daughter, but she would continue to live with her father, who would  support her as she adapted to life without face-to-face contact with her mother. She would continue to attend school where she would have the stability and support which was necessary to complete her education.

  • The Immigration Judge at appeal found that there was no evidence that MG’s deportation would result in her  losing all contact with her daughter. MG’s  eldest daughter remained in Namibia, in the care of her maternal Great Grandmother, and MG had  maintained contact with her  elder daughter, since her arrival in the United Kingdom.

  • It was acknowledged that indirect contact was not the same as remaining in the family home, or even living separately, but in the same country, however, it was considered that MG could maintain contact with her daughter, if she wished. Further to this, there was no evidence that the daughter  would be unable to visit MG in Namibia. Consequently, it was not accepted that there were  factors in MG’s case that would be considered very compelling if  her daughter remained in the United Kingdom without her.

  • It was not considered that there were insurmountable obstacles to family life with them being able to continue outside of the United Kingdom, nor had MG provided any evidence which would demonstrate that there were compelling circumstances which would effect  her daughter  if she remained in the United Kingdom. She  was a British citizen and could continue to enjoy all the benefits afforded to her as such, upon  MG’s return to Namibia.

  • MG and her former partner were required to make a decision as to whether he and their daughter should accompany MG  to Namibia, or remain in the United Kingdom.

  • It was noted that  the Witness Statement of the Claimant’s former partner, dated 11 April 2016,  stated: “I have now visited M with [the Claimant’s daughter] at Yarlswood IRC between 4 – 5 times. The most recent visit was on 5 April 2016. We spend 3 hours at Yarlswood IRC, between 2 pm and 5 pm and [the Claimant’s daughter] is very happy playing with her mother and they complete homework together and enjoy a good family life”.

  • It is was however noted by the Secretary of State  that as MG  had  been detained since 11 May 2014, a period of almost two years, it would appear that direct contact with her daughter was extremely sporadic. As such, any relationship MG had with her daughter  was  assumed to have been maintained via in-direct methods of communications. This was  at odds with MG’s claim that  she would be unable to maintain contact with her daughter, using these same methods of contact, upon her return to Namibia.

  • Note was also taken of the letter written by the Claimant’s daughter, in which she expressed that she missed her mother, and her wished for her mother to be released from Yarl’s Wood Immigration Removal Centre. Whilst it was accepted that MG’s deportation would have a negative emotional effect on her daughter, any impact was a direct result of MG’s actions.

  • It was noted that  the MG had  provided evidence of her  contact with her daughter during her detention; however, this evidence did not suggest that the nature of her relationship with her daughter, had strengthened, or differed significantly from that which was considered by the Tribunal, which found that claims to family life with a child did not outweigh the public interest in securing MG’s deportation.

  • MG had not lived as part of family unit with her daughter since November 2010, and since this date, she had spent 3 years and 3 months, either serving her custodial sentence, or detained. It was accepted that prior to her imprisonment, and between periods of detention, MG utilised her visitation rights, as directed by the Court Order; however, by the Claimant’s former partner’s own admission, MG had only seen her daughter four or five times in the past two years.

  • There was no evidence which would suggest that her daughter relied on MG to meet her day to day care, particularly given MG’s absence in her life, due to imprisonment and subsequent detention. There was no evidence which would suggest that MG  provided any unique or essential care for her daughter that she would not be able to receive from an alternative source.

  • It was noted that MG claimed that the Secretary of State’s decision to deport  failed to take into account the Claimant’s daughter’s rights under Article 24 of the EU Charter of Fundamental Rights. It was stated  that the best interests of  MG’s daughter  had  been fully considered, and it had been concluded that her best interests were served by remaining in the United Kingdom with her father.

  • It was noted that the Tribunal had  found: “Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh.

  • It was considered that MG’s deportation, in accordance with primary legislation, remained in the public interest and no information had been provided which would suggest that the Secretary of State should depart from the Tribunal’s settled findings.

  • Whilst it was accepted that  MG had  provided a number of document’s  which had not previously been submitted, it was not accepted that this evidence significantly differed from that previously considered by the Secretary of State and the Tribunal; as such there were  no reasons apparent which would suggest that the Secretary of State  should depart from her, or the Tribunal’s findings, in respect  of MG’s claims to family life in the United Kingdom.

  • MG had been convicted of a very serious offence, one which fully engaged the public interest in securing her removal, and none of the claims made constituted very compelling circumstances sufficient to outweigh that interest.

  • It was concluded that MG’s submissions did not meet the requirements of paragraph 353 of the Immigration Rules and did not amount to a fresh claim. This was because the submissions were not significantly different from the evidence that had previously been considered.

 

The Court’s reasoning and conclusion:

 

The Court noted that it had to consider whether the Secretary of State’s view that the further submissions, taken together with the previously considered material, did not create a realistic prospect of the Claimant succeeding before an Immigration Judge was irrational/Wednesbury unreasonable, bearing in mind the need for anxious scrutiny (i.e. the need to give proper weight to the issues and to consider the evidence in the round).

It was also noted that in  order for Article 8 to overcome the public interest in the Claimant’s deportation, it would have to be shown firstly, that she had a genuine and subsisting parental relationship with her daughter (paragraph 399(a) and s.117C(5)), and secondly, that her deportation to Namibia would be “unduly harsh” upon her daughter (paragraph 399(b) and s.117C(5)).  It was also observed that these  propositions were not accepted by the First-tier Tribunal in its decision of 12 February 2015.

It was noted that the Secretary of State had  concluded that the Claimant had provided no evidence to suggest that the nature of her relationship with her daughter “differs significantly from that considered by the Tribunal.”  It was also equally taken into account that the Claimant’s further representations enclosed a witness statement from the Claimant’s former partner who was the father of her daughter and documents emanating from the Claimant’s daughter written to or about the Claimant. The Claimant’s former partner had also  clarified that it was no longer his intention to move permanently to Ireland with his daughter, as had been the case when he sought and was granted a court order in October 2014. In April 2016, he and his daughter were settled and living in London and he was expressly encouraging the relationship between his daughter and the Claimant. The representations also enclosed evidence from the daughter expressing her wish for her mother not to be deported.

The Court stated that it was said on  the Appellant’s behalf  that the evidence was relevant to two issues: (a) whether the Claimant had a genuine and subsisting relationship with her daughter and (b) whether it would be unduly harsh for the daughter to remain in the UK without her mother. The Claimant contended that it could  not  be said that the evidence was incapable of leading to a positive conclusion before a putative immigration judge, bearing in mind that the judge would be likely to hear live evidence from the entire family. The fresh claim introduced the Claimant’s daughter’s voice into the fresh claim, thus she was entitled to consideration as a child rights holder, and not just a conduit of rights of her mother. She and her father provided evidence of why it would be in her best interests for her mother to remain in the UK – so that she can foster and develop a direct and meaningful relationship with the Claimant. It was submitted  that it is not in dispute that the Claimant’s daughter’s best interests were to  remain with her father (as was the case at the time of FTT decision in February 2015). However, the evidence presented in the new claim demanded a further and fuller consideration of whether it was in the Claimant’s daughter’s best interests for her mother to remain in the UK and the effect on her if her mother was permanently excluded from the UK, bearing in mind that in the absence of exceptional circumstances the Home Secretary would not even consider whether to re-admit the Claimant to the UK within 10 years of the date of deportation (paragraph 391(1) of the Statement of Changes in Immigration Rules (1994) HC 395, as amended). The need for a careful and balanced assessment on these points was said to be heightened in light of the Secretary of State’s duty under section 55 and Article 24 of the EU Charter of Fundamental Rights.

Having considered the material relied upon and the submissions made by both sides, the Court came  to the conclusion that the decision of the Secretary of State that the further submissions relating to the Claimant’s relationship with her daughter, taken together with the previously considered material, did not create a realistic prospect of the Claimant succeeding before an Immigration Judge was Wednesbury unreasonable, bearing in mind the need for anxious scrutiny (i.e. the need to give proper weight to the issues and to consider the evidence in the round). This was for the following reasons:

 

  • The Secretary of State was presented with evidence from the Claimant’s former partner and material originating from the Claimant’s daughter and sent to the Claimant which was not before the First-tier Tribunal (the Tribunal only had evidence of correspondence sent from the Claimant to her daughter) and did raise the issue of whether there existed a relationship between the Claimant and her daughter in circumstances where the Tribunal had stated that it was not persuaded that there was any genuine and subsisting relationship between the Claimant and her daughter. The  Secretary of State accepted that there was “evidence of a relationship” in her response dated 6 April 2016.  Accordingly, the Tribunal’s decision which had rested on the two limbs (no genuine and subsisting relationship but even if there was, it was not of the depth whereby it would be unduly harsh on the Claimant’s daughter for her mother to be deported) now rested only on one.

  • In relation to the issue of whether it would be “unduly harsh” on the Claimant’s daughter for her mother to be deported, whilst the Tribunal had concluded that even if a relationship existed it was not of a depth to outweigh the public interest in deportation, the question of the actual depth of that relationship, albeit one where personal contact was inevitably sporadic in light of the fact the Claimant was in immigration detention, had to be further considered in light of the new evidence and the question of the negative emotional impact and the best interests of the child assessed on the basis of anxious scrutiny. The question to be considered was whether there is any realistic prospect of the Claimant succeeding before an Immigration Judge bearing in mind the need for anxious scrutiny. There was at least some evidence regarding a greater depth of relationship and including evidence which emanated from the Claimant’s daughter herself than had been before the Tribunal when making its decision on 12 February 2015. The Court was not satisfied that such evidence was properly weighed in terms of its significance, given the Secretary of State’s  focus on the quantity of direct contact rather than on the depth of the relationship.

  • It was also unclear from the decision letters what consideration was in fact given to the evolving situation where the Claimant’s former partner’s intentions regarding where his daughter would live and as to contact with her mother had changed. The Claimant’s former partner had been the principal witness in the criminal trial that had led to the Claimant’s imprisonment but this had all changed by April 2016 at which time he was submitting evidence in support of a continued relationship between the Claimant and her daughter. There is no reference to this change of position in the Secretary of State’s response letters.

  • Whilst it was clear that Article 24(3) of the Charter of Fundamental Rights was considered by the Secretary of State, this section of the response referred back to the best interests of the child reasoning and was considered essentially through the prism of section 11 Children Act 2004. It was not clear  from the responses to what extent the Secretary of State did take into account the Claimant’s daughter’s own free-standing rights, including in relation to Article 24(3) which states that every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his/her parents, unless that is contrary to his/her interests.

  • Further, whilst the Secretary of State accepted that there was a negative emotional impact on the Claimant’s daughter, she then stated that this was the product of the Claimant’s own actions and that the predominant issue was the public interest in deportation. It was not clear whether and to what extent that admitted negative emotional impact was assessed against the “unduly harsh” criterion (i.e. whether it would be unduly harsh for the Claimant’s daughter to remain in the UK without her mother following deportation) as opposed to focusing on the reason why that impact had arisen.

  • Accordingly, the Court was not satisfied that the decisions dated 6 and 18 April 2016 applied the correct test or asked the right question in relation to the issue of the relationship between the Claimant and her daughter and/or satisfied the requirement of anxious scrutiny.

  • The Court made clear it that it was  not expressing any conclusion about whether the Secretary  of State could rationally have reached the conclusion that she did; rather that  the Court was  concerned as to the manner in which the issues were approached and whether it was considered in accordance with the approach which has been identified in the case-law as the one the Secretary of State must follow.

  • Accordingly, the Court quashed the decisions of 6 and 18 April 2016 and required the material submitted to be reconsidered by the Secretary of State and a fresh decision made.

 

Conclusion

 

The Secretary of State’s decision as set out above  appeared fully reasoned  however clearly anxious scrutiny  had not be applied. The  relevant question had not been properly   considered,  i.e  whether there was any realistic prospect of the Claimant succeeding before an Immigration Judge bearing in mind the need for anxious scrutiny. The Secretary of State had neglected to  consider the greater depth of relationship   between mother and child as shown by the evidence before her.  As sometimes is the case, the Secretary  of State’s lengthy and seeming rational decision was however doing nothing more than merely  paying lip- service to the best  interests of MG’s child.

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