England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Monday, 30th April 2001

1. MR. JUSTICE HOLLAND: On 29th April 1994 Miss Mary Njuguna, a Kenyan citizen, entered the United Kingdom, having been granted leave to remain as a visitor for six months. In the event, she stayed on when that period had expired, in the meantime having applied for asylum. On 15th April 1996 this asylum application was rejected and a notice of intended deportation served. She appealed unsuccessfully. On 30th August 1999 she became the subject of a deportation order which has yet to be executed.
2. That brings me to the instant problem. On 26th November 1994 and when in this country she gave birth to a son, Patrick. His father is another Kenyan citizen whose present whereabouts are unknown. By way of one last attempt to stave off deportation and on 18th November 1999 she applied for judicial review of the Secretary of State's decision. That application included the following submission:

"It was incumbent upon the respondent to consider the question of whether the applicant's child can establish a right to remain in the United Kingdom prior to embarking upon the removal of the applicant and it is both irrational and unfair for the respondent to fail to do so. The scheme of immigration control set out in the Immigration Act 1971 and the rules made thereunder, and indeed the respondent's own appreciation of the same . . . require that consideration be given to the position of a child who is liable to enforcement proceedings. In failing to consider the same the respondent denies the applicant the potential benefit of the impact of a favourable outcome as to a child's position upon the merits of her own application to remain in the United Kingdom, and in the alternative the right of the applicant's child to bring such matters before the independent adjudicator on a review of merits."

3. Factually that submission was well-founded, to the extent that hitherto the Secretary of State had given no specific consideration to the position of Patrick. This was effectively acknowledged by him when, in response and on 22nd December 1999, he gave to Patrick a notice of an intention to deport. The notice is not an entirely happy document. It is factually erroneous in part, but it clearly invokes section 3(5)(c) of the Immigration Act 1971, and it indicates that there were no circumstances known to the Secretary of State that would make deportation along with his mother inappropriate.
4. There was an immediate appeal. On 24th January the Secretary of State turned down the appeal. Thereafter there was an appeal to the Immigration Appeal Tribunal. After a hearing and on 27th September 2000 that appeal was dismissed. Patrick now appeals to this court with the permission of the single judge.
5. Turning to the merits of this appeal and indeed of the decision under appeal, I am of the view that the key is provided by the terms of section 3(5)(c) of the Immigration Act 1971, that is, the terms of the statutory provision invoked by the Secretary of State to justify the otherwise extraordinary step of deporting a five year old child. So far as material that subsection reads:

". . . a person who is not a British citizen shall be liable to deportation from the United Kingdom. . .

(c) if another person to whose family he belongs is or has been ordered to be deported."

6. In my judgment, the hearing could not properly proceed before the tribunal, save on the premise that Miss Njuguna was going to be deported. If she was not going to be deported, then section 3(5)(c) was immaterial and there was no basis for deporting Patrick. The appeal to the tribunal would have had to have been allowed. If on the other hand she was going to be deported, then in common sense the appeal of this five year old child was doomed unless, through his next friend, he could establish prospects for some viable way of life in this country without his mother; for example, if he could establish that he was going to be fostered with a United Kingdom resident. There was the opportunity to make this point provided by the Immigration Rules, rule 367, in which various factors are listed to which the Secretary of State is to take heed, one such being:

"The practicability of any plans for a child's care and maintenance in this country if one or both of his parents were deported."

7. So much for the apparent ambit of the appeal to the tribunal, predicated by the fact of an outstanding deportation order against Miss Njuguna and reliance on section 3(5)(c). In the event, before that tribunal the appellant's case effectively proceeded on the basis that deportation of the mother remained a moot point, that the tribunal should consider all aspects of the situation as affected both mother and child, and that a decision in favour of Patrick could cause a re-think on the part of the Secretary of State in the case of his mother. Thus far I venture no criticism of Mr. Seddon and those instructing him. They were endeavouring to do their best for their clients. The logical fallacy behind this approach to the appeal should have been exposed by the advocate for the Secretary of State. It would seem from the judgment that he failed to do so, with the result that the hearing before the tribunal was as wide ranging and as open-minded as the appellant could have hoped for, albeit terminating in a decision adverse to him.
8. In this light I turn to the point upon which permission was given and which represents the high watermark of Mr Seddon's present case. As to this, the tribunal had directed itself to heed Immigration Rule 367, and in particular so much of it as provides as follows:

"In considering whether to require a wife or child to leave with the deportee the Secretary of State will take account of the factors listed in paragraph 364 as well as the following:

(i) the ability of the wife to maintain herself and any children in the United Kingdom, or to be maintained by relatives or friends without charge to public funds, not merely for a short period but for the foreseeable future."

9. Adverting specifically to this provision, the tribunal recorded its finding as follows:

"The appellant's mother cannot maintain the appellant without recourse to public funds. The appellant's mother could only do so if she had permission to work, which permission she does not have. There is no evidence before the Tribunal that the appellant's mother is likely to be granted such permission in the foreseeable future."

10. That finding is the subject of a submission in support of this appeal which appears from the grounds, paragraphs 2, 3 et cetera. It indicates that the finding is challenged and it proceeds as follows:

"The tribunal were made aware of the enforcement against the applicant's mother having been deferred pending the resolution of the applicant's position, on the understanding that, should the applicant be successful in establishing a right to remain the applicant's mother's position would also be affected... Should the applicant's mother be granted leave in line with the applicant, such indefinite leave is statutorily incapable of having a condition restricting rights to work ... There was further unchallenged evidence before the tribunal that the applicant's mother had worked as a nursery school teacher up until the time at which she ceased to have permission to work, that she also had interpreting skills which she had put to use and that she would be able to maintain and accommodate and support herself and her son without recourse to public funds should she be provided with permission to work..."

11. Before us today Mr. Seddon has assiduously advanced that ground of appeal with commendable skill and persistence but, for my part, I am unable to give to his point any weight. I make the following responses. First, the factor relied upon as part of Immigration Rule 367 is totally irrelevant to this situation. This postulates a situation in which the proposal is for the deportee to accompany the breadwinner abroad, not a proposal that the deportee be left in this country unsupported. Second, given the nature of the factual premise upon which the appeal had to proceed, namely the deportation of the mother, her ability to maintain Patrick in this country was irrelevant. That matter neither did nor could become relevant by virtue of any concession by the Secretary of State. True, he had indicated an intention not to enforce deportation of the mother pending the result of Patrick's appeal, but he could hardly have done otherwise. Had she first been deported Patrick would have had to go with her, thereby pre-empting the result of the appeal. But whether or not it was emphasised to the tribunal, the only premise upon which the appeal could be resisted had to be that the mother was being deported. Overall, whilst it may be that had her ability to support Patrick in this country without recourse to public funds been a proper issue for this tribunal, then Mr Seddon could have secured more attention to his point, in truth, it was wholly irrelevant, so that the actual decision of the tribunal cannot be impugned, albeit for a reason other than such specifically relied upon in its judgment.
12. Mr Seddon has other criticisms. I regard them as essentially unarguable. Each amounts to a challenge of a finding of fact that was a matter for the tribunal. Indeed, the findings of fact which are impugned look remarkably like common sense, at first blush at least. Overall, in my judgment this appeal fails. In conclusion I advert to assurances given by Mr Underwood QC on behalf of the Secretary of State, to the effect that with the Immigration and Asylum Act 1999 coming into force, the fate of a dependant child would now be considered in acceptable proximity to consideration of the fate of his mother. I hope that his optimism is borne out by experience, just as I hope that advocates for the Secretary of State come to appreciate that if an appeal to a tribunal is to be opposed, then it should be opposed. Any uncommitted position does no service to anybody, least of all to the tribunal itself.
13. LORD JUSTICE CLARKE: I agree.
14. LORD JUSTICE THORPE: I also agree. This appeal is therefore dismissed.
Order: Appeal dismissed; detailed assessment; application for permission to appeal to the House of Lords refused. (Order not part of the judgment of the court)