ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Grimes
Deputy Upper Tribunal Judge Latter
Strand, London, WC2A 2LL
B e f o r e :
VICE PRESIDENT OF THE COURT OF APPEAL (CIVIL DIVISION),
LADY JUSTICE KING
LORD JUSTICE SINGH
| Secretary of State for the Home Department
|- and -
and AO (Nigeria)
Richard Drabble QC and Ranjiv Khubber (instructed by Lambeth Law Centre) for the Respondent in the first appeal
Andrew Otchie (directly instructed) for the Respondent in the second appeal
Hearing dates: 13-14 March 2019
Crown Copyright ©
Lord Justice Singh:
Factual and Procedural Background
The decision of the FTT in AB (Jamaica)
The decision of the UT in AB (Jamaica)
"… In my view the wording of section 117B(6) is clear. There is only one public interest question, as defined in section 117A(3), that is the question as to whether an interference with a person's right to respect for private and family life is justified under Article 8(2). Whilst the other provisions of section 117B set out factors to be considered or the weight to be attached to various factors section 117B(6) is phrased in definitive terms. Section 117B(6) clearly answers the public interest question, that is whether the interference is justified under Article 8(2), in cases where the conditions are met. If the public interest does not 'require' removal in these circumstances then it is not the Tribunal's role to look for other factors which weigh in the public interest. …"
"This means that the correct interpretation is the narrow interpretation identified by the [FTT] Panel in the instant appeal. In these circumstances the Panel erred in going on to consider other factors in assessing the public interest. The statutory provisions are clear in their statement of the public interest. In this case, the conditions of section 117B(6) having been met, no further examination of the public interest was required in the proportionality assessment."
The decision of the Family Court in AO (Nigeria)
"AND UPON the Court indicating to the Respondent father that in the event an application for direct contact is to be made by him, the Court would hope and expect to see progress with regards to; his understanding surrounding the impact of domestic violence/abuse upon the victim of the same as well as clarification to the Father's immigration status and ability to remain in this country."
"a) The child shall live with the Applicant mother.
b) The child shall not spend any time with the Respondent father in terms of face-to-face contact. The father shall, however, write letters and cards to [I] and send any gifts that he wishes to send. Such contact shall not be on set days but should on average be once a month. Such communications should be sent to the maternal Grandparent's home address …"
"[I] is young and therefore requires stability and security. It is my view that [I] spending time with his father by letter and photograph exchange, not face to face meetings, would contribute to [I's] identity. I would suggest that [the Applicant mother] promotes this and ensures that [I] has access to indirect contact pieces and photographs of his father. There is a need for a conclusion to these proceedings and so I would recommend Final Orders are made at this time."
The decision of the FTT in AO (Nigeria)
"26. In my view, given that A has a minor son, who is a British citizen, living with his British citizen mother, and given that it is generally accepted that, absent any countervailing factors, it is preferable for children to have contact with both parents, there are circumstances of such a nature that I can and should consider this appeal on the basis of article 8 outside the rules.
27. This Appellant has a family life with I (on the basis that he is indisputably I's biological father, even though he has not met him face to face for a considerable period of time. He maintains regular postal contact with him). Article 8(1) is therefore satisfied.
28. Turning to the Razgar steps, (R v Secretary of State for the Home Department ex parte Razgar (FC)  UKHL 27) the decision interferes with the Appellant's family life, and would have consequences of such gravity as potentially to engage the operation of article 8 since contact, even by post, would of necessity in my view be less easy if the Appellant were living in Nigeria, and I, who is a very young child, would be aware that his father has moved from living close by to living thousands of miles away. The interference is in accordance with the law, namely the immigration rules, and is necessary in a democratic society in the interests of immigration control (bearing in mind the Appellant's less than flawless immigration history) which falls within the purpose of the economic wellbeing of the country."
The decision of the UT in AO (Nigeria)
"… It was for the Family Judge to decide what weight to attach to the CAFCASS reports and to decide what order should be made. Criticisms of the CAFCASS reports made on the basis of only hearing from one side concerned were irrelevant to the assessment of proportionality."
"… There is nothing to indicate that that must, of necessity, involve either living with a parent or having direct contact. The appellant has family life with his son, at least within Article 8(1). Whilst the Family Court found that direct contact was not appropriate at the present time, it is clear that the Court emphasised the importance of I's continued relationship with his father in recital e) in which the applicant's mother confirmed that she would ensure that I had a 'daddy box', that he was encouraged to look at his memory box on a regular basis and that I maintained a positive image of his father and that she would not speak negatively about him or allow others to do so in his presence or within his earshot and would share appropriate letters, cards, gifts and photographs from [AO] in a positive way and provide encouragement to I to respond to them. Further, she confirmed she would provide [AO] with copies of I's school reports, photographs and bi-annual update of his likes and dislikes and further information to assist the appellant with indirect contact."
"30. On the evidence before me, I accept that the appellant has written letters and sent gifts in accordance with the court order. In his oral evidence he expressed his hopes that he might have direct contact with his son and said that he had more understanding of the consequences of domestic violence and how it could be avoided. Looking at the evidence in the round, I accept that the appellant does have a genuine and subsisting relationship with his son even though it is maintained through indirect contact. In these circumstances he meets the conditions set out in s117B(6) and it follows that the public interest does not require his removal from the UK.
31. I agree with the way the judge put it in the First-tier Tribunal at  that 'the appellant has by his continued and regular postal contact with I, and its nature, as much of a genuine and subsisting parental relationship with his as the Family Court currently allows.' As is now apparent, the decision in Treebhawon that s117B(6) stands by itself and is not simply one of a number of factors in s117B has answered the concerns I had about whether all the relevant public interest factors had been properly taken into account. Had I been reminded of that decision at the error of law hearing, in all likelihood I would have found that any errors made by the judge were not material to the outcome of the appeal but, having set the decision aside and considered the merits for myself, I agree with the judge and I am satisfied that the appeal should be allowed."
Relevant legal principles
"(a) The applicant must provide evidence that they have either –
i. Sole parental responsibility for the child; or
ii. Access rights to the child; and
(b) The applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child's upbringing."
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"(1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"
"(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard —
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), 'the public interest question' means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2)."
"(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom."
Grounds of Appeal
The appeal in AB (Jamaica)
"Looking at section 117B(6) free from authority, I would favour the argument of the appellants. The focus on paragraph (b) is solely on the child and I see no justification for reading the concept of reasonableness so as to include a consideration of the conduct and immigration history of the parents as part of an overall analysis of the public interest. I do not deny that this may result in some cases in undeserving applicants being allowed to remain, but that is not in my view a reason for distorting the language of the section. Moreover, in an appropriate case the Secretary of State could render someone liable to deportation, and thereby render him ineligible to rely on this provision, by certifying that his or her presence would not be conducive to the public good."
"… For the respondent, Mr Malik submits they support a construction of section 117B(6)(b), whereby the application of subsection (6) depends upon a Tribunal finding, on the particular facts of the case, that the child will be expected to leave the United Kingdom if the person concerned is removed. For the appellant, Mr Bazini submits that such a construction is not possible, purely as a matter of statutory interpretation, and that paragraphs 18 and 19 of KO (Nigeria) do not permit the Tribunal to hold otherwise."
"'To expect' something is to regard that thing as likely to happen. If we decide to wait at home on a particular day in order for a parcel to be delivered, it is on the basis that we consider it likely the Post Office or delivery company will deliver the parcel on that day. Many other such examples could be given. The key question, therefore, is whether the element of conditionality which is introduced by the word 'would' in section 117B(6)(b) governs both the question of reasonableness and that of expectation; in other words, whether one must hypothesise that the child leaves the United Kingdom, whether or not in the 'real world' he or she is likely to do so."
"… As a matter of ordinary language the question 'would it be reasonable to do X?' presupposes the doing of X. It is unlikely to be an appropriate or helpful response to such a question to refuse to answer it on the basis that one does not intend to do X."
"We accept that this interpretation may result in an underserving individual or family remaining in the United Kingdom. However, the fact that Parliament has mandated such an outcome merely means that, in such cases, Parliament has decided to be more generous than is strictly required by the Human Rights Act 1998. It can be regarded as a necessary consequence of the aim of Part 5A of imposing greater consistency in decision-making in this area by courts and tribunals. The fact that section 117B(6) has such an aim was expressly recognised by Elias LJ at paragraph 44 of MA (Pakistan)."
"… It is difficult to see how section 117B(6)(b) can be said to be of no application or to pose a merely hypothetical question. Section 117B(6) dictates whether or not the public interest requires removal where a person not liable to deportation has a genuine and subsisting parental relation with a qualifying child. The question that must be answered is whether it would not be reasonable to expect the child to leave the UK. That question as contained in statute, cannot be ignored or glossed over. Self-evidently, section 117B(6) is engaged whether the child will or will not in fact or practice leave the UK. It addresses the normative and straightforward question – should the child be 'expected to leave' the UK?"
The appeal in AO (Nigeria)
"Will such interference have consequences of such gravity as potentially to engage the operation of Article 8?"
"The assessment of whether there is a 'genuine and subsisting parental relationship' for the purposes of EX.1 and section 117B(6)(a) is different in form and substance to whether a parent has taken an 'active role' in the child's 'upbringing' for the purposes of R-LTRPT1.1. It is possible to have a genuine and subsisting parental relationship with a child, particularly in cases where contact has only recently resumed on a limited basis, but for that relationship not to include a parent playing an active role in the child's upbringing. The fact that SR has not been involved in making important decisions in A's life does not necessarily mean that he has not developed a genuine and subsisting relationship. The nature and extent of that relationship requires a consideration of all the facts referred to RK at . The child's age is also likely to be a relevant factor."
"42. Whether a person is in a 'parental relationship' with a child must, necessarily, depend on the individual circumstances. Those circumstances will include what role they actually play in caring for and making decisions in relation to the child. That is likely to be a most significant factor. However, it will also include whether that relationship arises because of their legal obligations as a parent or in lieu of a parent under a court order or other legal obligation. I accept that it is not necessary for an individual to have 'parental responsibility' in law for there to be a relevant factor. What is important is that the individual can establish that they have taken on the role that a 'parent' usually plays in the life of their child.
43. I agree with Mr Mandalia's formulation that, in effect, an individual must 'step into the shoes of a parent' in order to establish a 'parental relationship'. If the role they play, whether as a relative or friend of the family, is as a caring relative or friend but not so as to take on the role of a parent then it cannot be said that they have a 'parental relationship' with the child. It is perhaps obvious to state that 'carers' are not per se 'parents'. A child may have carers who do not step into the shoes of their parents but look after the child for specific periods of time (for example where the parents are travelling abroad for a holiday or family visit). Those carers may be professionally employed; they may be relatives; or they may be friends. In all those cases, it may properly be said that there is an element of dependency between the child and his or her carers. However, that alone would not, in my judgment, give rise to a 'parental relationship.'"
"There are likely to be many cases in which both parents play an important role in their child's life and therefore both have subsisting parental relationships with the child, even though the child resides with one parent and not the other. There are also cases where the nature and extent of contact and any break in contact is such that although there is contact, a subsisting parental relationship cannot be said to have been formed. Each case turns on its own facts."
"42. For the reasons put forward by Mr Cornwell, it was, in my view, not possible for the circumstances of this case to come within the requirements of paragraph 399(a) of the Rules. On the basis of the Court of Appeal's analysis of the family history, [VC] had played only a minimal role in the care of his children and, even when living at the family home, he had on a regular basis rendered himself unable to act as a parent as a result of heavy drinking and abusive behaviour. By the time of the Secretary of State's decision to deport him, any vestiges of a 'parental relationship' with the children had long fallen away and had reduced to their genetic relationship coupled with the most limited level of direct contact which was intended to cease altogether on adoption. Mr Cornwell is correct to stress the words 'genuine', 'subsisting' and 'parental' within paragraph 399(a). Each of those words denotes a separate and essential element in the quality of relationship that is required to establish a 'very compelling justification' [per Elias LJ in AJ (Zimbabwe)] that might mark the parent/child relationship in the instant case as being out of the ordinary.
43. Although, as I have explained, [VC's] case falls, as it were, at the first hurdle in that it was not possible on the facts as they were at the time of the decision to hold that he had a 'genuine and subsisting parental relationship', I am also persuaded that the Appellant is correct in submitting that for paragraph 399(a) to apply the 'parent' must have a 'subsisting' role in personally providing at least some element of direct parental care to the child. The phrase in paragraph 399(a)(ii)(b) which required that 'there is no other family member who is able to care for the child in the UK' strongly indicates that the focus of the exception established in paragraph 399(a) is upon the loss, by deportation, of a parent who is providing, or is able to provide, 'care for the child'. This provision is to be construed on the basis that it applies to a category of exceptional cases where the weight of public policy in favour of the default position of deportation of a foreign criminal will not apply. To hold otherwise, and to accept Ms Jegarajah's submission that her client comes within the exception simply because he has some limited, non-caring contact with his child would enable very many foreign criminals to be included in this exception."
"Finally, the relevant parts of paragraph 399 provided:
'this paragraph applies where paragraph 398(b) … applies if:
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
i. the child is a British Citizen, or
ii the child has lived in the UK continuously for at least 7 years immediately preceding the date of the immigration decision;
and in either case
(a) it would not be reasonable to expect the child to leave the UK; and
(b) there is no other family member who is able to care for the child in the UK;"
Lady Justice King:
" The first are the principles which I sought to distil in Re C (A Child) (Suspension of Contact)  EWCA Civ 521,  2 FLR 912, para 47, as follows:
'• Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.
• Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child's welfare.
• There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.
• The court should take both a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.
• The key question, which requires "stricter scrutiny", is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.
• All that said, at the end of the day the welfare of the child is paramount; "the child's interest must have precedence over any other consideration."'"
Lord Justice Underhill: