England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AA/00002/2009]

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th February 2010

Lord Justice Sedley:

1. The appellant is a 40 year old national of Jamaica whose immigration history leaves a great deal to be desired. By the time he first entered the United Kingdom in 2001, he had convictions in Jamaica for burglary, theft and wounding with intent. He also had two children in Jamaica, born in 1993 and 1995.
2. Having entered the United Kingdom as a visitor, he overstayed. By the time he was arrested as an overstayer in 2002, he had begun a relationship with Sharon Lucas, who had four children by previous relationships. The appellant's response to his arrest was to claim asylum. The claim was rejected but he stayed on and in 2003 and 2004 became the father of two daughters, T and L, by Ms Lucas, whom he eventually married in 2006. He then applied for leave to remain on the basis of his marriage but this was refused. After some legal wrangling he was removed to Jamaica in May 2007.
3. In 2008 Metropolitan Police wanted him to give evidence in criminal proceedings for robbery against two of Ms Lucas's sons. The police appear however to have made no proper arrangement for this with the Home Office. The appellant applied for entry clearance but the ECO in Kingston refused it because of his immigration history and criminal record, but the appellant was allowed to board a flight for London without a visa. He was detained on arrival. A few days later he was taken in custody to the Crown Court to give evidence, though in the event his statement was read and he was not called. He was then returned to immigration detention, from which he was bailed by the AIT in May 2009.
4. Pausing here, the findings of Senior Immigration Judge Latter to which I will be coming show that this unsatisfactory history was confirmed by the Home Office. The result was that the appellant found himself back in this country, which had gone to some trouble to remove him, at the behest of the authorities but with no legal status or entitlement to be or remain here. The second application for asylum which he made on his return has been refused.
5. He has taken the opportunity however to try to re-establish contact with his two daughters. This has been fiercely resisted by Ms Lucas, whose relationship with the appellant has been at an end since at latest the time when he volunteered to testify against two of her sons. In consequence he is now seeking to resist removal on the ground that removal will unjustifiably interfere with the relationship between him and his two daughters, T and L, who are now aged 6 and 5.
6. His appeal against the Home Secretary's refusal to allow him to stay was dismissed by Immigration Judge Easterman in January 2009. Because it contained an error of law, a reconsideration was ordered. This was conducted by Senior Immigration Judge Latter, who again dismissed the appeal. He did so on a carefully balanced evaluation of the appellant's and his daughters' Article 8 entitlements in the context of the appellant's own situation and immigration history. His reasoning is well summarised in two of his concluding paragraphs:

"27. The position can be summarised as follows. The appellant was allowed to return to this country for the specific purpose of giving evidence in a criminal trial. His relationship with his own children's mother has broken down and they are not on good terms. Ms Lucas has demonstrated positive resistance to any form of contact. The appellant has made allegations about his children's circumstances which have not been substantiated by social services. Set against this I am satisfied that the appellant has a genuine desire to keep in contact with his children but in the light of his immigration history I am satisfied that he is also motivated by a desire to remain in this country."

"29. In the present case balancing the public interest against extent of the interference with both the appellant's and his daughters' right to respect for their family life and taking into account the appellant's immigration history and the circumstances in which he returned to this country and the fact that he has on two occasions made asylum claims specifically for the purpose of delaying his removal, I find that removal would not be disproportionate to a legitimate aim within article 8(2) even though it deprives him of the opportunity of pursuing a contact application in this country."

7. Goldring LJ on sight of the papers refused permission to appeal, taking the view that Senior Immigration Judge Latter's determination was a legitimate and careful appraisal displaying no error of law. On renewal counsel for the appellant failed to persuade Elias LJ that the Article 8 decision was assailable but was given permission to appeal on what he submitted was the discrete ground that notwithstanding that there was no Article 8 obstacle to his removal, the appellant ought to be given limited discretionary leave to remain here in order to pursue proceedings for contact with his two daughters.
8. The foundation of this claim is said by Mr Pretzell to be the decision of this court in MS ( Ivory Coast) [2007] EWCA Civ 133, itself based on the European Convention on Human Rights decision in Ciliz v The Netherlands [2002] ELR 469 (299192/95), decided on 11 July 2000. I will come to these, but it is desirable first to consider exactly what is now at issue.
9. At the time of the renewed permission application all that it was possible to tell Elias LJ was that the appellant had gone to solicitors about obtaining access. That was in July 2009. This week, in response to the court's enquiry, we have been told by the solicitors with the conduct of this appeal that a hearing in the County Court fixed for an unspecified date in January 2010 by another firm, Yeena Gai Solicitors, who are family law specialists, was vacated by consent because Ms Lucas had failed to serve a statement. We have been given no explanation of why the appellant should have consented to an adjournment in these circumstances. It reinforces the Senior Immigration Judge's view that his principal aim is simply to remain in this country.
10. What is happening is an example of the unfortunate game of cat and mouse that develops when removal of an illegal entrant is resisted on the ground that he has children here with whom he hopes to establish a right of contact. The family court in order to decide contact needs to know what his immigration status is. The Home Office in order to decide his immigration status needs to know what his contact rights are. The stalemate can go on for years. If contact is granted, Immigration Rule 246 confers an entitlement to leave to enter provided the qualifying criteria are met. The proposition for which MS (Ivory Coast) is authority is that the Home Office cannot meet the state's Article 8 obligation by simply granting temporary admission (in effect release on bail from immigration detention) and undertaking not to remove the entrant while contact is decided. If it is going to authorise his remaining here they must grant him leave to remain in the way specifically envisaged by asylum policy instruction (or API).
11. Although Elias LJ accepted that Senior Immigration Judge Latter had overlooked this authority, he had not. In paragraph 28 he said:

"28. In submissions the Court of Appeal judgment in MS was relied on. This establishes that the Tribunal is under an obligation to make a finding on an article 8 claim even in circumstances where an undertaking not to remove pending the outcome of contact proceedings was offered but was not regarded as acceptable. Mr Pretzell relies on that appeal to show that the respondent has a practice of granting discretionary leave or not removing pending contact proceedings. At the hearing before me Mr Gallagher said that there was no policy but in each case the respondent would consider whether to exercise discretion outside the Rules and I accept that this is the position. In MS, the position of whether removal in the circumstances of that appeal would be a breach of article 8 was remitted to the Tribunal for decision."

12. What MS (Ivory Coast) concerns is the unacceptability of keeping an individual in limbo rather than giving legal effect, by the grant of limited leave to enter outside the Rules, to her accepted entitlement to remain here for a specified purpose. What the present case concerns is whether the appellant has any such entitlement.
13. As to this, Mr Stilitz for the Home Secretary submits that there is a conclusive decision of the AIT that the appellant has no such entitlement. Senior Immigration Judge Latter's Article 8 determination took into account the genuineness of the appellant's desire to be in at least some measure a father to his daughters, with whom he had lived as a part of a family until his removal in 2007. But it also took into account an immigration history which spoke loudly of an intention to enter and stay in the United Kingdom whether lawfully or not. The pattern was complicated by the evident collusion of the British authorities in procuring his return to give evidence against his stepsons and by their unexplained and seemingly shabby failure to accord him any legitimate status for this purpose; but from it there again emerged clear evidence that the appellant would take any opportunity to return and remain here.
14. Mr Pretzell contests this. He draws our attention to the material API, which in the Home Office's depressingly usual unpaginated form with no paragraph numbering to make up for it, provides for the grant of what it calls discretionary leave. The principal category, namely cases where return would breach Article 8, has nothing to do with discretion. By virtue of Section 6 of the Human Rights Act, observance of Article 8 is the Home Office's legal obligation; but room is left in the API for a residual category of exceptional cases in which a grant of leave outside the Rules can more properly be called discretionary. If MS, with an even worse record than the present appellant, was entitled to the benefit of this policy, so, Mr Pretzell contends, should the appellant be.
15. We do not decide issues of law by comparison of facts. I have indicated what I understand to be the principle for which MS (Ivory Coast) is authority and why it does not apply to a case such as this, where the AIT has held on unimpeachable grounds that removal of the appellant at the juncture at which it adjudicated would involve no disproportionate interference with his or his daughters' Article 8 rights.
16. I do not accept Mr Pretzell's submission that Senior Immigration Judge Latter engaged in illicit speculation about the future of the contact proceedings, which at the time of the reconsideration hearing had not even been initiated. What he said was this:

"25. The appellant's family solicitors have written to Ms Lucas seeking contact but have not received any reply. She has not been co operative in letting the children even speak to let alone visit the appellant during his present stay in this country. I am not satisfied that removing the appellant to Jamaica would have the effect of severing a genuine and subsisting relationship between the appellant and his children. The extent of contact on return would be the same as the position before he came to this country in November 2008.

26. What the appellant would lose on return is the opportunity of pursuing an in-country application for contact. All the indications at present are that this would be a contested and prolonged dispute, with contact being resisted by Ms Lucas. On the evidence available to me it must be very doubtful whether there is any real prospect of direct contact being ordered or enforced in the foreseeable future. It is argued that the appellant is unable to pursue an application for contact from abroad. This is not correct although public funding would not be available and the very fact of being abroad will make it difficult to pursue anything other than direct contact. There is no reason to believe that the appellant does not genuinely wish to maintain contact with his two young children, but I must also take account of the fact that he has two older children in Jamaica now aged 15 and 13. the appellant says in his witness statement that he believes his daughters in the UK are at an age when they need a father figure as he lived with them from their birth until he was removed in 2007. he also believes that the children in Jamaica are safe with their mother but has concerns about his children in this country but the position has been investigated by the appropriate authorities and their report is clear. I take into account the position of the children and their right subject to what is in their best interests to have contact with their father."

This was not speculation: it was a sensible attempt to discern how the present situation was likely to develop. As it happens, events have proved him right.

17. For these reasons I would dismiss this appeal, but in doing so I would note that there are two apparently unanswered applications made by the appellant's solicitors in April and June 2009 for leave outside the Rules to enter the United Kingdom in order to pursue his contact proceedings. As Mr Stilitz I think accepted, it is perfectly possible for there to be a discrete Article 8 issue about attending contact proceedings in relation to the applicant's own children. We have been told that the adjourned proceedings are now fixed for 5-6 August 2010, evidently on the footing that they are to be contested. I do not doubt that, if asked, and if no satisfactory alternative means of participation is available, the Home Office will consider very carefully whether it is proportionate to refuse the appellant entry for the limited purpose of attending such proceedings. If as a result of them he secures contact, Rule 246 will be triggered. If not, he will be able to devote his attention to his children in Jamaica.

Lord Justice Waller:

18. I agree

Sir David Keene:

19. I also agree

Order: Appeal dismissed