ON APPEAL FROM THE HIGH COURT QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Mr Justice Beatson
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE MOSES
| The Queen on the Application of Abdollahi
|- and -
|The Secretary of State for the Home Department
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Ms Susan Chan (instructed by Treasury Solicitors) for the Respondent
Hearing date: 11th February, 2013
Crown Copyright ©
Lord Justice Moses:
Review of Detention and Bail Applications
"The life is very hard for us and nothing can make us happy. We go to school but is not interested for us. Everything is boring. My mom is sick and my brothers most young one cry every day. We miss our dad. My mom lost her weight and she is suffering every day. We waited and were happy that my father's sentence finish and he comes back home. Unfortunately you didn't release him and sent him to detention. We visit dad just two times. Making money is an issue for us and we can't go to visit him…we miss him – our circumstances worsened and life is very very hard for us. I think you have children. You have to realise our situation. Please help us."
Over two years later, on 23 June 2011, the eldest boy described how well he had done at school, finishing 10 GCSEs and hoping to start 4 A-levels that year. He repeated that life had been very difficult for the family. He said:-
"The truth is that my father is a good man who loves his family and who has always done his utmost to protect us and keep us all together."
But although the family put up a façade of normality at home, there is a deep sense of loss and sadness. He describes the particular difficulties of his youngest brother; he becomes very angry and the family have difficulty in controlling him. He describes his worry about him for the future. He says they are all "very emotionally damaged" after two and a half years of separation. He concludes:-
"I just wish I had a voice and that someone would actually listen to me. The only crime that my father has really committed is that he has always tried his foremost to protect our family."
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
The spirit, if not the precise language of this article, has, she said, been translated into national law. Other Conventions lend flesh to that spirit. The Declaration on the Rights of the Child of 20 November 1959 required special safeguards and care to be afforded to children. Article 9 of the Convention on the Rights of the Child of 20 November 1989 requires that:-
"1. States parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child."
Failure to Take into Account the Best Interests of the Children
"The Secretary of State is not satisfied that your relationships to the United Kingdom are of sufficient proximity to give rise to family life for the purposes of Article 8."
As the judge himself acknowledged, that comment could only have been made in ignorance of the existence of the appellant's wife and children in this country. Far from failing to give the interests of the children sufficient weight, it appears that at the important stage when the first decision to detain was made, the Secretary of State did not even realise that there were any children whose interests required to be considered.
"Consequently, the transfer of the person to immigration detention requires the family issue to be reconsidered, now that the prescribed sentence has been served. If, after consultation with the OCC, it has been determined that in this situation CCD are splitting a family (and the split is proportionate) then staff should seek directorial clearance as described below.
In order to safeguard and promote their well-being, it will be appropriate to ensure enquiries (with the OCC) about the welfare of the child are made as early as possible".
"Please see attached latest Detention Review for the above named who was Court Recommended for Deportation.
Mr Abdollahi lodged an appeal against Deportation on 22 May 2009. His appeal was dismissed on 4 November 2009. He sought consideration of the decision on 18 November 2009 and this was refused on 3 December 2009. We await for his appeal rights to be exhausted.
Mr Abdollahi appealed against [sic]
Regarding his private life, the judge stated '…As to the appellant's wife we take a similar view with respect to any private life though we also do note a letter written by her GP stating that she is receiving medication for depression and that she has been referred "for psychological help". It is said that her difficulties relate to bad dreams, stress, loneliness, insecurity, anger an ability [sic] to relax. We would accept that such treatment forms an aspect of her private life. We do not accept however, on the basis of the letter dated 30 June 2009 which is a brief one, that her mental health problems are of a particularly or especially severe nature…" He goes on to say later after talking about the children's health and that they may have aspects of private life "…In considering matters which weigh against the Appellant, we are of the view that there will be no separation of family members brought about by the Appellant's deportation because he will be accompanied by his other members … We note that none of the affected persons have any lawful right to be in the UK at the present time…"
I would be grateful for your advice on this case on whether we can pursue deportation on Mr Abdollahi. The wife and children have been referred to East Midlands Enforcement Team to arrange Admin Removal (original emphasis)' "
"With respect to the allegations that his wife is depressed and struggling to cope with the children, I would suggest that you report this, in writing, to the local authority's children's social services in the area in which his wife and children reside. Social services may decide to assess the family for limited support until you remove them."
The Border Agency wrote to the County Council on 7 January 2010, recording the appellant's wife's difficulties, due to depression, bad dreams, stress, loneliness, insecurity, anger, anxiety, difficulty relaxing and fear. It also recorded problems with the behaviour of her three children and that she had stated that she was "unable to cope". It asked whether it could arrange for an assessment to be conducted "to enable her to obtain limited support up to and until their removal from the United Kingdom".
Detention and Asylum Claims
The Risk of Absconding
Lord Justice Longmore:
Lord Justice Ward: