Guidance on Deportation and Family Proceedings

Mohammed (Family Court proceedings-outcome) [2014] UKUT 419 (IAC) (5 September 2014)

Concerned with the interaction between family and deportation proceedings, this case involved Chalachew Mohammed (C), an Ethiopian national, who appealed the First-tier Tribunal (FtT) panel’s dismissal of his appeal against the Home Secretary’s decision to make an order to deport him as a foreign criminal pursuant to section 32(5) of the UK Borders Act 2007. C claimed asylum in 2005 which was refused. His appeal was dismissed but he remained unlawfully and made human rights representations in 2008. However, by mid-2011, he had committed 22 criminal offences which resulted in convictions for violence and supplying Class A drugs. Subsequent to pleading guilty to burglary charges, C received 30 months’ imprisonment and he was accordingly notified of his liability to deportation and ultimately in late 2012 of the decision ordering his deportation.

The FtT noted that the sentence imposed for the index offence was 2.5 times the threshold for expulsion and the panel was unsatisfied that C’s deportation would breach Article 8 ECHR or section 55 of the Borders, Citizenship and Immigration Act 2009.

C’s threefold grounds of appeal were that:

  • there was procedural unfairness because an adjournment was refused (ground 1);
  • the panel erred in not analysing C’s evidence in relation to his contact application and Article 8 and in failing to explain sufficiently why it had concluded that the best interests of C’s daughter lay in her remaining with her sister (ground 2); and
  • the panel erred in finding that C’s crime was a particularly serious one and that C constituted a danger (assessed at a medium risk of re-offending) to the UK community and it failed to give due weight to C’s good behaviour as evidenced in prison certificates (ground 3).

C’s appeal to the FtT was dismissed as the panel, which observed that an email on the appeal file from a social worker involved in the care proceedings stated that C’s child K was the subject of a Full Care Order and that her care plan was adoption, found that “he is still some way from sorting his life out and proving himself” because he had not “come to terms with his offending behaviour.” Since adoption was K’s care plan, the Upper Tribunal (UT) found it indicative of the Belfast Health and Social Care Trust’s view that K’s “best interests would be served by terminating her parental relationship with the appellant altogether.”

As for the first ground and procedural unfairness, as C had already had four adjournments, the UT was dismissive about him being granted a fifth adjournment on the basis that the email from the social worker startled C or his immigration representatives. In fact, Storey and Perkins UTJJ did not find anything to suggest that it took C or his lawyers by surprise and they thought that the email merely recorded what he already knew.

In relation to the third ground, the UT found that since C was in the UK illegally the entire time and he seriously and persistently committed crimes, insofar as the Article 8 ECHR balancing exercise was concerned, both his illegal status and criminal behaviour “counted against him in the proportionality assessment.” Therefore, Storey and Perkins UTJJ found the panel’s conclusions to be entirely within the range of reasonable responses and they remarked that:

10. Taking the last ground first, we find it wholly devoid of merit. Even focusing solely on the latest offence for which the appellant was convicted, that was an index offence culminating in a sentence of 30 months’ imprisonment. The FtT did not have the benefit of an OASys Report but did have the relatively recent sentencing remarks of the judge who recorded that the appellant had been assessed as having a high likelihood of further offending and had failed to understand the importance of his behaviour on others. As stated by Laws LJ in SS (Nigeria) [2013] EWCA Civ 550 at para 55, the 2007 Act attributes great weight to the deportation of foreign criminals.

Noting that the burden of proof rested on C and the documents that he himself had produced showed that the family court had not approved of his direct contact with K, the UT roundly rejected the argument that the FtT based its conclusion about the state of the family court proceedings on insufficient information. In that regard, because of the fact that all the parties were aware of the family proceedings and the FtT’s understanding of things was therefore correct, Storey and Perkins UTJJ found Blake J’s decision in Azimi-Moayed and others (decisions affecting children; onward appeals) Iran [2013] UKUT 197 (IAC) to be “extremely pertinent” and extracted the headnote which explains that:

Although in some cases this may require a judge to explore whether the duty requires further information to be obtained or inquiry to be made, the judge primarily acts on the evidence in the case. Where that evidence gives no hint of a suggestion that the welfare of the child is threatened by the immigration decision in question, or that the child’s best interests are undermined thereby, there is no basis for any further judicial exploration or reasoned decision on the matter.

As for the second ground – in light of the fact that C never lived with K as a family unit, that his offending meant that he was in prison for most of K’s life and that he would be unable to live with K as a family unit because of the family court’s decision – the UT found the FtT’s assessment to sufficiently “well-reasoned” so as not to leave any doubt why K’s best interests were not served by being in a close relationship with C (other than by way of indirect contact).

Email evidence, from C’s family lawyers to his immigration lawyers, confirming that the adoption arrangement had been modified to long-term fostering did not change the UT’s mind about the family court’s clear conclusion that C “was not to have a direct role in K’s life” – RS (Immigration/ family court liaisons: outcome) [2013] UKUT 82 (IAC) applied: i.e. a decision approving long-term foster care envisages permanent separation of the child from its parents.

Since the “core decision” in family proceedings had already been made and C had been unsuccessful in obtaining direct contact, there was no conflict between the FtT panel’s decision and the authorities (RS and Mohan v SSHD [2012] EWCA Civ 1363). There was no doubt that K’s care was not vested in C or the mother but in the local authority. The substance – i.e. that the immigration court should not await developments in any family proceedings and that the time for rehabilitation of K’s relationship with C was “long past” – of the family court’s decision was known to the immigration court and it had acted accordingly.

In light of some precarious arguments advanced on C’s behalf, the UT also held that the guidance in RS and Mohan did not support the proposition that the mere possibility of a fresh application for contact “being made (or pursued) is a relevant criterion for an immigration judge or panel when deciding whether to adjourn an immigration appeal or to direct a grant of discretionary leave in order for proceedings to be pursued.” Rather, that guidance relates to the possibility of the family court making a decision that will have a material impact on the relationship between a child and the parent facing immigration measures like deportation.

Relying on Sir Andrew McFarlane’s words in the Hershman Levy Memorial Lecture 2014, the UT also noted that the difficulties in some cases of identifying any “core decision” had been overcome by the Children and Families Act 2014 which (i) replaced “residence” and “contact” orders with the more neutrally worded “child arrangement order” (ii) provided for a “final” hearing (iii) expected a “parenting plan” to make the best possible arrangements for the child and (iv) made applications for court orders by a parent with respect to their child subject to them attending a Mediation Information and Assessment Meeting.

Equally, Storey and Perkins UTJJ did not find that section 19 (Article 8 of the ECHR: public interest considerations), see here, in force as of 28 July 2014, of the Immigration Act 2014 made any difference to their decision in the instant appeal. Therefore, the FtT did not err in law and its decision to dismiss C’s appeal was correct and the UT emphasised that:

Whilst it may be that in the Family Court jurisdiction prior to the coming into force on 22 April 2014 of the Children and Families Act 2014 there was always the possibility of a parent making a fresh application relating to contact, there is nothing in the guidance given in RS (Immigration and Family Court) India [2012] UKUT 218 (IAC) (which was approved by the Court of Appeal in Mohan v Secretary of State for the Home Department [2012] EWCA Civ 1363) that supports the notion that the mere possibility of such an application being made (or pursued) is a relevant criterion in the case of an immigration appeal when deciding whether to adjourn an appeal or to direct a grant of discretionary leave in order for such proceedings to be pursued. The guidance is concerned with whether there is a realistic prospect of the Family Court making a decision that will have a material impact on the relationship between a child and the parent facing immigration measures such as deportation.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Automatic Deportation, Children, Ethiopia, Families, Immigration Act 2014 and tagged , , , . Bookmark the permalink.

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