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Cite as: [2010] ECHR 1817
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16 September 2010
FOURTH SECTION
Application no.
8655/10
by F.I. and Others
against the United Kingdom
lodged
on 11 February 2010
STATEMENT OF FACTS
THE FACTS
The first applicant, F.I., is a Jamaican national who was born in 1981. The second applicant, T, is a British national who was born in 2009. She is the daughter of the first applicant and his former partner C, who is not a party to these proceedings. The third applicant, R, is a British national who was born in 1986. She is the current partner of the first applicant and the mother of the fourth, fifth and sixth applicants born in 2006, 2007 and 2009 respectively who are all British nationals. The first applicant is also the biological father of the fourth and sixth applicants but not of the fifth applicant although he is treated as such by the family. All of the applicants live in Birmingham. They are all represented before the Court by the AIRE Centre, assisted by Mr F. Omere, counsel.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background and details of the first applicant's immigration history
The first applicant arrived in the United Kingdom on 26 August 2002 on a six month visitor's visa valid until 26 February 2003.
On 1 September 2004, he was arrested on motoring offences and served with a notice of his liability to removal from the United Kingdom as an immigration over-stayer. On 30 September 2004, he submitted an application for leave to remain in the United Kingdom as the spouse of K, a British citizen. On 1 December 2005, the application was refused by the Secretary of State. The first applicant submitted an appeal against that decision which was dismissed on 14 February 2006 by the then Asylum and Immigration Tribunal (“the Tribunal”). The first applicant had failed to submit any grounds of appeal and had failed to attend the appeal hearing. The Immigration Judge was therefore not satisfied that his marriage was genuine and subsisting or that he had established any private or family life in the United Kingdom.
On 5 April 2006, the first applicant was arrested and detained on charges of assault for which he later received a conditional discharge.
On 30 May 2006, the fourth applicant, the child of both the first applicant and third applicant, R, was born. The first applicant has “parental responsibility” for her because he was named on her birth certificate. The first applicant claims that he cohabited with the third and fourth applicants for one year at around this time.
Removal directions to Jamaica set to take place for the first applicant on 24 August 2006 were cancelled when, on 22 August 2006, he made an application for asylum on the basis of his fear of the “Red Roses” gang in Jamaica. On 23 September 2006, the Secretary of State refused his asylum application, considering his account to be incredible. On 15 November 2006, the Tribunal dismissed his appeal. On 4 December 2006, a Senior Immigration Judge refused his application for reconsideration.
On 21 November 2007, the fifth applicant was born.
On an unknown date, the first applicant was charged with conspiracy to commit cheque fraud in December 2007. He claims that, whilst he was detained on remand in prison, he was visited approximately two or three times a month by the third applicant who normally took the fourth and fifth applicants with her on these visits. He also claims that he spoke to the third applicant regularly on the telephone and received many letters from her.
On 26 January 2009, the second applicant, T, the daughter of the first applicant and C was born. Unknown to the first applicant, on an unknown date in 2009, she was placed into the care of Birmingham Social Services due to concerns that C was unable to care for her.
On 26 July 2009, the sixth applicant, the daughter of the first applicant and third applicant, R, was born. The first applicant does not have “parental responsibility” for her, because her birth was registered whilst he was remanded in custody and his name is not on her birth certificate.
On 27 October 2009, at Birmingham Crown Court, the first applicant was convicted of conspiracy to defraud and sentenced to 11 months' imprisonment. He was immediately released and transferred to immigration detention because he had already served the period of his prison sentence on remand.
On an unknown date, the first applicant became aware that T had been taken into the care of Birmingham Social Services and that there were court proceedings ongoing to determine her future care arrangements. The first applicant claims that he found legal representation to assist him in gaining contact rights with her and/or for his family members in the United Kingdom to be considered as alternative carers for her.
On 3 November 2009, the first applicant submitted further representations to the Secretary of State relying, inter alia, on Article 8 of the Convention because his sister, grandmother, two aunts and three daughters lived in the United Kingdom. He also informed the United Kingdom Border Agency that he intended to become involved in the care proceedings relating to T and raised the issue of his poor mental health.
On 10 November 2009, the Secretary of State refused those representations as not amounting to a fresh claim. In relation to Article 8 of the Convention, it was not accepted that the first applicant had established that he had any relatives living in the United Kingdom or that he had any contact with them. It was also not accepted that he had established family life with his three daughters, or that he had provided any evidence to substantiate his claim that he intended to apply for contact with T. In any event, his removal was considered to be proportionate and reasonable given his poor immigration history and obvious disregard for immigration rules. It was not considered that his removal would adversely affect the Article 8 rights of his family and children given the lack of any evidence of the existence of relatives in the United Kingdom or contact with his daughters. Furthermore, his presence in the United Kingdom was not considered to be essential for him to enjoy his family ties as he could continue his relationships with his family from overseas through modern channels of communication. It was considered that there was no reason why the first applicant could not re-adapt to life in Jamaica having previously lived the majority of his life there and that there were no compelling compassionate factors to justify allowing him to remain in the United Kingdom. Furthermore, it was not accepted that his removal would breach Article 3 of the Convention on medical grounds due to any mental health problems because he was not critically ill and could receive any necessary treatment in Jamaica.
On 13 November 2009, the High Court granted an injunction preventing his removal pending the outcome of an application for permission to apply for judicial review.
On 1 December 2009, the Secretary of State refused further representations submitted in the light of the judicial review application. It was not accepted that the first applicant had submitted any evidence to indicate that he would apply for contact with T or that he was her father as he had not submitted a birth certificate to confirm the same. In addition, it was not accepted that he was the father of the sixth applicant as he had also failed to provide her birth certificate. It was also not accepted that he was in a genuine relationship with the third applicant. Furthermore, he had not demonstrated that his children had visited him in prison or that he had maintained regular contact with them in prison. It was therefore not accepted that he had demonstrated any family life with the third applicant or any of his children. Even if he had demonstrated some element of family life with them, it was considered that, in view of his poor immigration history and disregard for the immigration rules, his removal to Jamaica would be both proportionate and reasonable. In addition, he had failed to demonstrate that there were any obstacles or difficulties for his family to return to Jamaica with him.
On 7 December 2009, the High Court refused permission to apply for judicial review and discharged the injunction staying his removal from the United Kingdom, stating that:
“In the light of your poor immigration history ... it is not arguable that any interference with your family and private life as a result of your removal is disproportionate given the needs of immigration control. Since 2003 any family and private life that you have established has been established in the knowledge that you have no lawful basis for being in the United Kingdom. Your asylum and human rights applications were dismissed by the immigration judge. The defendant's letter dated 10 November and 1 December considered the position of your children and their mothers in accordance with the decision in Beoku-Betts.”
The first applicant renewed his application for permission at an oral hearing (see below).
2. The care proceedings relating to the second applicant, T
In February 2010, Birmingham City Council formally invited the first applicant to become a party to the care proceedings regarding the long term care arrangements for T. The first applicant instructed family solicitors and sought to become a party to those proceedings.
On 9 February 2010, the High Court refused his application for permission to apply for judicial review at an oral hearing (see above); stating that the Article 8 claim was unarguable. It was accepted that T was the subject of care proceedings and that the first applicant had been invited to join those proceedings, but noted that he had never played any part in T's life, due to the date of her birth and his detention. As regards his other two children, contact was limited and irregular. The High Court concluded that even if there was any evidence of family life, the Secretary of State's conclusion that no Immigration Judge could find his removal disproportionate was legally unimpeachable.
On 10 February 2010, the United Kingdom Border Agency set removal directions for the first applicant to Jamaica to take place on 18 February 2010.
At a hearing relating to T on 11 February 2010, the Birmingham & Sutton Family Proceedings Court (“the family court”) ordered the first applicant to file a statement by 25 February 2010, and listed a further hearing to take place on 4 March 2010 to determine whether or not he should be made a party to the proceedings and to make future directions accordingly.
On 17 February 2010, the Court of Appeal refused an application for permission to appeal against the High Court's decision noting that the application:
“... makes much of the contact proceedings in respect of T. The general law set out as to participation in such proceedings is not in doubt, but the judge was well entitled to hold that a tribunal, looking at that matter in the context of the applicant's sparse previous role in T's life, would not think that it sufficiently weighed the balance against the reasons of immigration control that justify removal.”
On 18 February 2010, the Acting President of the Chamber to which the application was allocated decided to apply Rule 39 of the Rules of Court and indicate to the Government of the United Kingdom that the first applicant should not be expelled until further notice.
In a letter dated 2 March 2010, the Judge appointed as Rapporteur under Rule 49 § 2 of the Rules of Court decided that further information was required and, in accordance with Rule 49 § 3 of the Rules of Court, asked the Government of the United Kingdom to respond to the following question:
“The applicant claims that his daughter, T, is currently the subject of an interim care order in favour of Birmingham City Council and related care proceedings. He claims that his application to be joined to those proceedings will be considered at a hearing on 4 March 2010. Has your Government been made aware of those care proceedings and the applicant's role within them, given the Court's understanding that it is the Secretary of State's policy not to remove those involved in continuing family proceedings about children?”
In a letter dated 16 March 2010, the Agent of the Government of the United Kingdom responded to those questions and informed the Court, inter alia, that:
“The UK Border Agency declined to defer Mr F.I.'s removal in line with published policy as he had a judicial review application refused on the same or similar grounds within 3 months of his intended removal. On the same date (17 February 2010) Mr F.I.'s legal representatives wrote to the UK Border Agency and stated that Birmingham City Council had commenced care proceedings for T and that Mr F.I. is legally represented in those proceedings. The UK Border Agency declined to defer removal as the matter of Mr F.I.'s alleged family life in the United Kingdom had been previously examined by the Asylum and Immigration Tribunal, the High Court and, most recently, the Court of Appeal. All of these independent judicial parties had agreed that to remove Mr F.I. from the UK would not breach his human rights with specific regard to Article 8 of the European Convention on Human Rights.
...
It is our general practice to not enforce the removal of those who are involved in care proceedings in the Family Court. However, as the chronology of Mr F.I.'s case shows, his interest in becoming involved in the care proceedings of his daughter seems to be largely influenced by his imminent removal from the United Kingdom and the perceived legal purchase that might give to his case. It was because of this and the fact that his Article 8 claim had been recently fully explored by both the High Court (December 2009 and February 2010) and the Court of Appeal (February 2010) that the UK Border Agency decided to proceed with his removal from the UK.”
On 20 April 2010, the first applicant was joined as a party to the care proceedings in relation to T by order of the family court and ordered to file a statement and a report in relation to his mental health.
Further directions were ordered by the family court at hearings on 25 May 2010, 8 June 2010, 5 July 2010 and 12 August 2010. The first applicant is legally represented within those proceedings and it would appear that his suitability as a carer or a joint carer with his sister for T is being assessed together with any possible future contact arrangements between him and T.
On 9 August 2010, DNA results ordered by the family court confirmed that the first applicant is the biological father of T.
3. The first applicant's mental health
Since June 2005, the first applicant has intermittently been under the care of psychiatric services in the United Kingdom with a diagnosis of a recurrent depressive disorder with episodes of psychotic symptoms, which have necessitated two brief admissions to hospital in April 2007 and June 2008.
Furthermore, the first applicant's mental capacity, mental health and fitness to stand trial caused ongoing concern in the criminal proceedings before Birmingham Crown Court. Various psychiatric and psychological reports found that he suffered from both a mild or significant learning disability and mild mental retardation. A report from a psychologist, Dr D Hacker dated 18 August 2008 concluded:
“Mr F.I. appears to have a significant level of cognitive impairment relative to his peers with every indication that it was present prior to the age of 18 years. He has an IQ of 57 (average = 100) and a significant impairment of intellectual functioning is identified as an IQ of 69 or less. His global intellectual functioning falls into the mild to moderate learning disability range. He does appear to demonstrate impairment of adaptive and social functioning as based on his self-report and that of his partner. He has impairment in a range of daily living skills, is illiterate and has never been in full-time employment. Whilst his level of adaptive functioning will be affected by his concurrent mental health problems there is no evidence that he has, at any stage, been able to fulfil the standards of independent living expected of his age matched peers.
Mr F.I. has a long-standing history of depression, deliberate self-harm and multiple attempts at suicide, some by potentially lethal means. ...”
On 27 November 2008, the first applicant attempted suicide and was temporarily made the subject of an interim hospital order and transferred to a medium low secure mental health unit.
B. Relevant domestic law and practice
1. Asylum and human rights claims
Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against an immigration decision made by the Secretary of State for the Home Department, inter alia, on the grounds that the decision is incompatible with the Convention. Appeals in asylum, immigration and nationality matters were, at the relevant time, heard by the Asylum and Immigration Tribunal.
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
2. Fresh asylum and human rights claims
Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides as follows:
“When a human rights or asylum claim has been refused 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.”
As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v SSHD [2006] EWCA Civ 1495 (paragraphs 10-11) has held:
“Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision.”
Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Home Office, will nonetheless generate a fresh right of appeal to be considered on the merits.
3. Case-law
In MS (Ivory Coast) v. the Secretary of State for the Home Department [2007] EWCA Civ 133, Lord Justice Scott Baker, at paragraph 24, made reference to the fact that the Home Office policy (see below) “is not normally to remove those involved in continuing family proceedings”.
In Beoku-Betts (FC) v. Secretary of State for the Home Department, [2008] UKHL 39, the House of Lords decided that the effect on other family members with a right to respect for their family life with the appellant must also be taken into account in an appeal to the Tribunal on human rights grounds. Baroness Hale of Richmond stated that:
“To insist that an appeal to the Asylum and Immigration Tribunal consider only the effect upon other family members as it affects the appellant, and that a judicial review brought by other family members considers only the effect upon the appellant as it affects them, is not only artificial and impracticable. It also risks missing the central point about family life, which is that the whole is greater than the sum of its individual parts. The right to respect for the family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or minor children, with whom that family life is enjoyed.”
4. United Kingdom Border Agency Policy Documents
The Criminal Casework Directorate's Children and Family Cases Process Instruction is an internal United Kingdom Border Agency document which until 19 March 2010 was undisclosed to the public and restricted to internal use. The Process Instruction covers the procedures that should be followed by Criminal Casework Directorate (“CCD”) staff when dealing with Foreign National Prisoners' close family members and dependant children. It reminds case owners of the:
“need to be aware of their statutory duty in relation to any children involved. Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Home Secretary to make arrangements for ensuring that specific functions are discharged having regard to the need to safeguard and promote the welfare of children – regardless of nationality – who are in the UK. “Children” means persons under the age of 18. Consequently, any action taken by CCD case owners in relation to children must have regard to this duty. “Safeguarding children and promoting their welfare” can be defined as:
Protecting children from maltreatment;
Preventing impairment of children's health or development;
Ensuring that children are growing up in circumstances consistent with the provision of safe and effective care; and
Undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully.
This does not override existing UKBA functions. Consequently, the duty does not supersede the CCD vision to protect the public by deporting foreign nationals who commit serious criminal offences. However, in making the decision to deport a family containing a minor child and in the plans for carrying out the detention or removal of a child or a close member of the child's family, case owners will take into account the need to safeguard and promote the welfare of children.
...
3 Splitting Families for the Purposes of Detention and Deportation
...
3.1.2
When considering the deportation of a foreign national on conducive grounds, or as the result of a court recommendation, full consideration should be given to the status and potential impact on any family members remaining in the United Kingdom, especially those who are children. Regard must always be had to the need to safeguard and promote the welfare of the child in question as required by the new duty and associated statutory guidance accompanying section 55 of the Borders, Citizenship and Immigration Act.
Our obligations to the child and other family members under Article 8 should always be considered irrespective of whether a specific claim has been made or not. A competent Article 8 consideration will include consideration of the best interests of any children as set out in the UN Convention on the Rights of the Child (UNCRC) Article 3. Article 3 of the UNCRC says that in any administrative decision affecting a child, the best interests of the child must be a primary consideration. The aim is always to carry out the UK Border Agency's administration of the Immigration Rules with the minimum possible interference with the family's private life. In particular the Agency aims to enable the family to maintain continuity of the care and development of the children in ways that are compatible with the immigration laws.
...
In those cases where we do not propose to deport or otherwise remove some family members in the UK (and their nationality is immaterial) the appropriate parties (see section 1.1) must be consulted for advice on the effect of the split on the child. It is essential that enquiries are made, prior to referral if possible, to ensure that as much background information can be provided with respect to the potential effect of our actions on any children. It is important that staff also consider (and consult) whether there is any effective legal or welfare barrier to the family members(s) accompanying or joining the deportee on a voluntary basis.
...
3.2.1
In some cases the welfare needs of a child may only be met by being separated from their parents, for example if a court finds that they are responsible for significant harm inflicted on the child or if the parents have clearly abandoned the child other than as a pretext to avoid the child being deported. The task of assessing whether such conditions apply falls to the children's services where the child is resident. In such cases, parents may be deported once the court has decided that the local authority should be granted a full care order while the child remains in suitable long term care arrangements in the UK.
...
7 Court Orders
Case owners should be aware that children may be subject to court proceedings before deciding what further action to take on a case. Whilst immigration law takes precedence over Children Act 1989 proceedings or other court orders such a Residency Orders (a Residency Order or Contact Order cannot prevent the removal of a child from the UK) and equivalents in the devolved administrations, Article 8 should always be taken into account and the family proceedings are likely to be relevant in this assessment. CCD should always liaise closely with the courts to achieve the best outcome for the child, which in many cases will be delaying removal until the proceedings are concluded.
...
7.2.1 Court Orders and Article 8
Where a subject is involved in family proceedings in the UK, for example with regards to contact with his child, it may not be appropriate to remove him until the outcome of those proceedings has been determined. Again, each case must be considered on its particular facts; involvement in, or orders made in, Children Act 1989 proceedings cannot deprive the Secretary of State of his powers of removal and deportation. However, it may be something to which he should have regard when deciding whether to exercise those powers. It should also be noted that applications under the Children Act 1989 may be vexatious.
C. Relevant International Law
The United Nations Convention of the Rights of the Child, adopted and opened for signature, ratification and accession by the United Nations General Assembly resolution 44/25 of 20 November 1989, was ratified by the United Kingdom on 16 December 1991.
Article 1 defines a child as every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained later.
Article 3 provides that, in all actions concerning children, the best interests of the child shall be a primary consideration.
Article 16 provides that:
“No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, and that the child has the right to protection of the law against such interference.”
COMPLAINTS
The applicants complain under Article 8 of the Convention that the first applicant's expulsion from the United Kingdom would be an unjustified interference with their rights to respect for family and private life.
They also complain that the first applicant's removal from the United Kingdom while the childcare proceedings in relation to the second applicant are pending would prevent the family court from carrying out its duty to assess the feasibility of placing the child with her extended family and interfere with the outcome of those proceedings in violation of Article 6 of the Convention.
QUESTIONS TO THE PARTIES
In particular:
(i) would the first applicant's removal to Jamaica be in accordance with the law having regard to MS (Ivory Coast) v. the Secretary of State for the Home Department [2007] EWCA Civ 133 and the then unpublished Criminal Casework Directorate's Children and Family Cases Process Instruction?
(ii) would the first applicant's removal to Jamaica constitute a proportionate interference with that family and/or private life (Cılız v. the Netherlands, no. 29192/95, § 60-63, ECHR 2000 VIII)?