United Kingdom Asylum and Immigration Tribunal

BE (Care Proceedings) Jamaica [2005] UKIAT 00098

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 15 February 2005

Date Determination notified: 28 February 2005

Before
The Honourable Mr Justice Ouseley (President) Mr J Freeman (Vice President) Mr P R Lane (Vice President)
Between

 

BE	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Ms N Mallick, instructed by Oliver Abey & Solicitors For the Respondent: Ms J Sigley, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This is an appeal against the determination of an Adjudicator, Mr D Humphrey, promulgated on 29 January 2004. There are five Appellants, a mother and her four children. The mother is a citizen of Jamaica, born in 1973, who entered the United Kingdom in September 2000 and was given two weeks leave to enter and subsequently leave to remain until March 2001. An application to remain as a student was refused in November 2001. Her appeal was dismissed in March 2002. She married a British citizen in August 2002, and applied in January 2003 to remain as the spouse of a British citizen, and applied for leave for her children to remain. Her application was refused in August 2003 and this refusal is the decision which the Adjudicator considered. He dismissed her appeal, which was brought on human rights grounds, and Article 8 ECHR in particular.
2. The children were not the children of her British husband but of other men in Jamaica. She had left the children behind in Jamaica when she came to the United Kingdom. The youngest, who was born in 1999, was brought by a friend in 2000; there is no record of his entry. The others entered on various separate dates in the first half of 2002 and were given six months leave to enter. In January 2004, they were aged twelve, ten and eight.
3. The Adjudicator was told that Brent LBC had commenced care proceedings under the Children Act 1989 in respect of all four children, but that at the date of his hearing those proceedings had not progressed beyond a failed contested Interim Care Order application.
4. One daughter had been the subject of a serious sexual assault at school in Jamaica; one son had abused his two half-sisters. There were allegations of sexual and physical abuse and neglect in Jamaica and the United Kingdom. However, the mother and children were living in council accommodation and her husband had been permitted to join them. Both daughters were on the SEN Register and received beneficial support with emotional issues which had been a barrier to learning.
5. The Adjudicator held that although removal would terminate those educational benefits, that did not justify overriding the "proper implementation" of immigration policy. The Appellant had made "every effort to prolong her illegal stay in the United Kingdom, and while an overstayer has successfully brought all her children to this country. While she has undeniably founded a private life with her husband and children in the United Kingdom, this has been achieved despite her full knowledge that her status in this country was precarious and she was liable at any time to removal".
6. He referred to then current case law on proportionality and said that if the Secretary of State had "addressed the issue with all facts before him", his task as an Adjudicator was "to determine whether the decision of the Secretary of State was reasonable". Because "no different issue of fact" was involved, he was concerned only with whether the Secretary of State had struck a fair balance between immigration control and Article 8. He concluded:

"Having regard to the totality of the evidence before me I find that there is no insurmountable obstacle to the Appellant returning to Jamaica with her children, who are young enough and adaptable enough to make the change as long as they are not separated from their mother, and making proper application for settlement in the United Kingdom on the basis of her marriage, and I find that the decision of the Secretary of State was not outside the range of reasonable responses in his determining that this should be the course the Appellant would follow."

7. The appeal as argued by Ms Mallick was different to some degree from the original grounds. She focused first on the significance of the then pending care proceedings and then on what she submitted were inadequacies or legally inadequate reasons for the Adjudicator's conclusions on proportionality.
8. We take the care proceedings first. Her submission was that once the Adjudicator knew that there were incomplete care proceedings, he was bound to adjourn the appeal so that his decision could take account of their outcome which could in certain circumstances determine the outcome of the immigration appeal. He should adjourn even if there were no application to do so.
9. The existence of care proceedings showed that it was responsibly thought that a child was suffering significant harm attributable to the care given or absence of parental control. If a care order were made under Section 33 of the Children Act, the local authority would have parental responsibility for the child, and by subsection (7):

"While a care order is in force with respect to a child, no person may-

(a) cause the child to be known by a new surname; or

(b) remove him from the United Kingdom, without either the written consent of every person who has parental responsibility for the child or the leave of the court."

10. At the date of the Adjudicator's hearing, it could not be known or predicted whether a Care Order would be made. By its terms, if made, it would prevent the Secretary of State removing the children, which could be determinative or at least very significant for the decision in the immigration appeal. A Supervision Order under section 35 contains no equivalent restriction on removal from the jurisdiction.
11. We reject these submissions. First, there is nothing in the Adjudicator's determination or in any other material to suggest that any application for an adjournment was made. There is no statutory requirement that the appeal be adjourned. It would not have been right for the Adjudicator to adjourn in the absence of an application by the parties, save very exceptionally, particularly in view of the strict provisions of Rules 4 and 40(2) of the 2003 Procedure Rules. It certainly cannot be said to have involved any error of principle in the exercise of the limited discretion available.
12. Second, even if an application had been made on these facts, it would have been wrong in principle for an adjournment to have been granted, again in view of the provisions of the Rules.
13. It is difficult to see that an adjournment could have served any useful purpose. The Adjudicator could not second-guess their outcome but would act on the material available to him about any aspect of the family's well-being relevant to Article 8. If the care proceedings were ultimately unsuccessful, nobody would have been any the wiser, yet there would have been potentially very considerable delay to the immigration appeal. If they resulted in a supervision order (as in fact happened), there would be no bar on the removal of anyone. If they resulted in a Care Order and if the restriction or removal by a "person" covers the Secretary of State exercising his powers of immigration control, then the relevant court's leave would be required. But that Court would be in a position to know that the immigration decision which was the basis of the application for leave had passed successfully through the immigration appellate process. If the Court's leave was not required for the Secretary of State's exercise of immigration control powers, the position would be the same as if a Supervision Order had been made. (We are not in a position to comment on whether the Secretary of State exercising immigration control powers is a "person" for section 33 (7) purposes.)
14. Third, the fact that a local authority might have statutory parental authority, or that the proceedings might reveal material which cast a significantly different light upon factors relevant to the Article 8 claim could justify a fresh claim.
15. Fourth, the care and the immigration proceedings should be treated as concurrent and independent. Some of the considerations or evidence may overlap, but they are viewed from different perspectives. Each must proceed at its own timetable. If Care Orders override immigration decisions, then they can be invoked to prevent removal; and if not, not. There were no interim orders here which could suspend removal.
16. We turn to the second issue, proportionality. We reject the suggestion that the Adjudicator ignored DP3/96; it does not appear to have been advanced before him and had it been, it would inevitably have failed for the reasons given in the Secretary of State's letter of 29 August 2003.
17. Ms Mallick said next that the Adjudicator had only assessed the reasonableness of the Secretary of State's decision on the facts before the Secretary of State and had said that there were no different issues before the Adjudicator. She said that there was further evidence which required the Adjudicator to form his own view. These factors were the evidence of the relationship formed between the husband and the children, which was also proving beneficial to them. Neither the Secretary of State nor the Adjudicator had given separate consideration to the effect of removal on the children.
18. We accept that there was some further, albeit very brief, material from the mother's witness statement before the Adjudicator about that relationship. The Secretary of State's decision letter makes no specific reference to the relationship between husband and children. The impact of removal on the children was considered by reference to their formative years in Jamaica and their comparatively brief time here. The husband would be free to accompany his wife at public expense or stay here to support an entry clearance application. The wife's past failure to observe immigration regulations was an important factor.
19. It is clear that some separate consideration was given to the children by the Secretary of State and the Adjudicator. But there was also fresh material. It is not wholly clear whether the Adjudicator took the view that there was no new material or no new issue. The legal approach to proportionality may have changed subsequently.
20. We do think it possible that the Adjudicator erred in law by regarding the Secretary of State as having information equivalent to that which the Adjudicator had. But we do not see it as a material error of law because the additional material before him could not have caused a different view to be taken of the proportionality of the return of the mother and, viewed separately of her four children. The importance of immigration control and its procedures plainly is overriding here.
21. Whether the Adjudicator should have seen it as a question of a proportionate decision falling outside the "small minority of exceptional cases", R (Razgar) v SSHD [2004] UKIAT 00027 , [2004] 2AC 368 at p390 paragraph 20, or as a decision which, on the facts before him, did not fall outside the scope of responses open to a reasonable Secretary of State, the result would still be the same. The two approaches should lead to the same practical outcome in any event.
22. If there were a material error of law and it fell to the Tribunal, on either approach, to reach a decision on Article 8, but after consideration of the material newly placed before us, we would still reach that same conclusion.
23. We know that a Supervision, not a Care, Order was made in May 2004 and that in January 2004 information was sought for those purposes about the family's immigration status. There may have been a little more detail about family background. It may well be better for the children to stay here. But that is not the overriding consideration. The decision to remove is plainly proportionate.
24. This appeal is dismissed. It is reported for what we say about the relevance of care proceedings.

MR JUSTICE OUSELEY

PRESIDENT