The Secretary of State for the Home Department v GD (Ghana) (Rev 1)

In October 2011, the respondent was convicted of an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 of causing or allowing the death of a child. She was sentenced to a term of imprisonment of three years. On 9 April 2013, the Secretary of State issued a deportation order for the respondent, against which the respondent appealed. Her appeal was allowed by the First-tier Tribunal (Judge Woodhouse and Mrs A.J.F. Cross de Chavannes) (the FTT) by a Decision issued on 11 February 2014. The Secretary of State’s appeal to the Upper Tribunal (Andrews J and Judge Kebede) (the UT) was dismissed by a Decision issued on 13 May 2014. Permission to appeal to this court was granted by Jackson LJ.

The grounds of appeal, shortly stated, are as follows. First, both Tribunals proceeded on a false assumption that a residence order under section 8(1) of the Children Act 1989 in respect of the respondent’s children was still in force and, in any event, misunderstood the legal effect of a residence order. Second, both Tribunals failed to weigh the very high public interest in the deportation of foreign criminals against the applicable rights of the respondent under article 8 of the Convention of Fundamental Human Rights and Freedoms and failed to consider the options that were open to the respondent’s family if she were deported. There was a third ground of appeal, that both Tribunals failed to treat the relevant provisions of the Immigration Rules as a comprehensive code and proceeded on the basis that there was room for a separate consideration of the respondent’s article 8 rights outside the Rules, but that ground was not pursued in the light of the Supreme Court’s decision in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799.

The Secretary of State filed her appeal notice out of time. The deadline was 28 December 2014, but the appeal notice was not filed until 30 January 2015. In the appeal notice, application was made for an extension of time and an explanation of the delay was given by the solicitor who handled the appeal and had direct personal knowledge of the circumstances of the delay.

When giving permission to appeal, Jackson LJ extended time on the grounds that the delay was short and coincided with the Christmas and New Year period. His order was sealed on 1 July 2015 and sent to the parties shortly afterwards. The first intimation of a challenge to the extension was not made for almost a year, in a letter dated 22 June 2016 from the respondent’s solicitors. Moreover, the appeal notice was served on the respondent on 6 February 2015 and any objection should have been made within 7 days, in accordance with CPR 52CPD.4(3)(a)(ii). Any objections would have been taken into account by Jackson LJ before making deciding the application.

In these circumstances, it ill behoves the respondent to complain of the relatively modest delay on the part of the Secretary of State, and it is impossible for her to suggest that she suffered any prejudice by the delay. I see no grounds on which it would be appropriate to set aside the order made by Jackson LJ.

The respondent, a citizen of Ghana, was born in 1980 and entered the UK in September 1980 at the age of 20 on a student visa. She studied to become a nurse and her student visa was extended on various occasions until 30 January 2006, after which she was given leave to remain as a work permit holder until 28 July 2011.

In 1999, the respondent had met AFG in Ghana. In August 2001, they were married under Ghanaian law. In September 2001, AFG arrived in the UK as a visitor and lived with the respondent. They had four children: PAPA (born 5 July 2002), DAA (born 14 July 2004), NANA (born 10 February 2005) and D (born 21 April 2009). All the children were Ghanaian citizens. None had British nationality, but all had leave to remain as the respondent’s dependents until 28 July 2011. Each of the three eldest children was taken as a baby to Ghana to live with the respondent’s mother, subsequently returning to the UK to live with their parents (their return dates being 19 December 2005, 1 October 2006 and 22 March 2009 for PAPA, DAA and NANA respectively). The family regularly returned to Ghana for holidays. All members of the family had strong family and cultural links with Ghana and they all spoke Twi within the family

On 4 March 2010, the respondent’s fourth child, D, died as a result of force-feeding by the respondent, a practice about which she had been previously been warned by health professionals. As earlier mentioned, she was convicted of causing or allowing the death of a child and sentenced to three years’ imprisonment. The judge accepted that there was no risk to the health of the other children. In his sentencing remarks, the judge said that it “was not an attack in the accepted sense of the word, but having listened to the experts, it was in my view a prolonged and a deliberate course of conduct. At best, it could be said that this was a misguided obsession, but it was a determined obsession and it must have caused enormous and daily distress to your daughter.”

Following the death of D, the respondent and the remaining children went to Ghana for a month, staying with the respondent’s parents and sister.

In September 2010, the respondent applied for indefinite leave to remain in the UK but, on account of her conviction, this was refused on 9 April 2013 at the same time as the deportation order was made.

AFG and the remaining children applied for further leave to remain in July 2011 and November 2012 respectively. These applications were refused, based largely on the decision to deport the respondent. Following the respondent’s successful appeal to the FTT, the appeals of AFG and the children were heard by a different constitution of the FTT and allowed by a decision issued on 7 March 2014. The Secretary of State did not appeal against that decision.

Care proceedings were commenced in respect of the children, following the death of D. Child in need plans were made in April 2010. The children’s senior social worker reported to the Family Court that both parents had cooperated well with social services and taken on board advice from the various professionals involved. In April 2012, the children were placed under a supervision order, which expired in April 2013. They were also made the subject of a residence order in favour of AFG. This order was made on 2 April 2012 but sealed on 18 April 2012.

On 23 April 2013, the respondent was released from prison on licence and granted immigration bail. She has since lived with AFG and the children. A social report dated 19 May 2013 stated that the children had a close and positive bond with both parents. It described them as a “close, committed family unit with strong cultural and religious beliefs and a huge supportive network around them”. It stated that the deportation of the respondent would have a detrimental effect on her children and would cause stress to the whole family. Her probation officer reported on 19 August 2013 that she had displayed “exemplary behaviour and commitment” while on licence.

The relevant statutory regime in force at the time of the decisions of the FTT and the UT was principally contained in the Immigration Act 1971 (as amended) and sections 32-33 of the UK Borders Act 2007. The respondent is a “foreign criminal” as defined in section 32(1), having been sentenced to a period of imprisonment of at least 12 months. The Secretary of State was accordingly obliged to make a deportation order in respect of her unless section 33 applied. The only relevant exception in section 33 is provided by section 33(2), that “removal of the foreign criminal in pursuance of the deportation order would breach [her] Convention rights”.

The Immigration Rules were amended in 2012 to include provisions addressing the public interest in the deportation of foreign criminals. Further amendments were made in 2014, but they took effect after the hearings and decisions in this case. Under the Rules in force at the times of those decisions, paragraph 398 provided, so far as applicable to the present case, that where a person claims that their deportation would be contrary to the UK’s obligations under article 8, and their deportation “is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months”, the Secretary of State will consider whether paragraph 399 or 399A applies “and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”. It is accepted that paragraphs 399 and 399A do not apply in this case.

The FTT considered the merits of the case in their decision at [60] - [64]. Having heard the evidence of the respondent, they were satisfied that a family life continued to exist between the respondent, AFG and the three remaining children. They were also satisfied “that there is an extant Residence Order” dated 28 November 2011, providing that the children “are and will continue to reside in their father’s care”. The FTT said at [63]:

Expressing their conclusion at [64], the FTT said:

Permission to appeal to the UT was granted on the basis that the FTT had failed to have regard to the Immigration Rules when making their assessment under article 8 or explained the exceptional circumstances that outweighed the public interest in deportation, and that the residence order was wrongly treated as determinative.

In the course of setting out the facts in its decision, the UT referred to the residence order at [10]:

In considering the law on the relationship between the Immigration Rules and the principles governing article 8 claims, the UT referred to MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544 and stated that “the scales are weighed very heavily in favour of deportation and something very compelling is required to outweigh the public interest in removal”.

The UT referred to authorities dealing with the best interests of children affected by a decision to deport a parent: Ogundimu (Article 8) – New Rules, Nigeria [2013] UKUT 60 and LD (Article 8 – best interests of child) Zimbabwe [2010] UKUT 278 (AC).

The UT’s discussion of the criticisms of the FTT’s decision centred on the existence and effect of the residence order:

At [37], the UT said that the FTT very properly refused to speculate what might have happened if steps had been taken in the Family Court for permission to remove the children to Ghana. While the residence order was in force, it precluded the children from leaving the UK without further court order and therefore there was, at the very least, no immediate prospect of the family moving to Ghana. At [38] the UT said that even if there was an error of law in the FTT’s approach because it failed expressly to address the “option” of the whole family being removed to Ghana, “it was not material because consideration of that “option” on the evidence before them would have led to precisely the same result.”

At [39], the UT considered the position if there were a material error of law in the FTT’s approach:

The UT set out its conclusion at [40]:

A “residence order” was an order under section 8(1) of the Children Act 1989, defined as “an order settling the arrangements to be made as to the persons with whom a child is to live”. With effect from 22 April 2014, the concept of a “residence order” was replaced with a “child arrangement order” by the Children and Families Act 2014, but it is the regime under the Children Act 1989 that is relevant for this case.

The residence order as regards the respondent’s children ceased to have effect by 24 October 2013. Section 11(5) of the Children Act 1989 provided:

The respondent was released from prison on 23 April 2013 and immediately resumed, and has since remained, living with AFG and their three children. It follows that the residence order ceased to have effect, by operation of section 11(5), by 24 October 2013.

Further, both the FTT and the UT appear to have misunderstood the effect of a residence order. First, at [41], the UT said that the residence order “automatically gave AFG parental responsibility for the three children”. In fact, AFG already had parental responsibility for the children as a result of being married to the respondent at the time of their births. Secondly, both Tribunals thought that the children could not be relocated to Ghana without the leave of the court. The leave of the court would have been required, while the order was in force, only if both parents, being the persons with parental responsibility, did not consent. It would not therefore have been the order that prevented the children relocating to Ghana but the refusal of the respondent or AFG to give their consent. Third, the FTT understood that the residence order gave the children a right to live in the UK. If, as appears to be the case, the FTT thought that a residence order had any relevance to a child’s immigration status in the UK, this was an error.

I should immediately say that neither of the Tribunals was informed of the correct position about residence orders in general or this residence order in particular. Courts and tribunals are inevitably dependent on the submissions made on behalf of the parties to inform them of the applicable law, particularly in an area which is likely to be unfamiliar to them. The duty imposed on representatives to put the relevant law before a court or tribunal serves an important public interest in the administration of justice. In this case, the Tribunals did not receive the assistance to which they were entitled. Neither of the counsel who appeared before us appeared at the hearings below.

Mr Pilgerstorfer submitted on behalf of the Secretary of State that the supposed existence of the residence order, and its effect as understood by the FTT, was highly material, and indeed, determinative, of the respondent’s appeal.

Mr Rene on behalf of the respondent expressly did not seek to support the FTT’s decision. It is clear from a reading of its reasons at [62] – [64] that the supposed existence and effect of the residence order was central to its conclusion. By largely basing its decision on an irrelevant factor, the FTT’s decision was vitiated by a serious error law and cannot stand.

Mr Rene relies on the UT’s decision as a new decision and submits that, while it is right to say that the UT relied on the residence order, it is unclear how much weight they applied to it and there were other matters on which they relied for its decision.

I have earlier set out passages for the UT’s decision. While reviewing the FTT’s decision, the UT at [31], [33] – [34] and [36] – [38] placed very considerable emphasis on the existence of the residence order and its supposed effect. At [39], the UT in effect re-made the decision, on the assumption (which they rejected) that there was any error of law in the FTT’s decision. The UT clearly did not understand that there could have been any error of law by the FTT in taking account of the residence order. The UT stated their reasons very shortly. They would have come to the same conclusion as the FTT “after taking into account all relevant factors”. This, as Mr Rene accepts, must have included the residence order, but it is true that the UT placed the greatest weight on the fact that AFG and the children had, by virtue of their successful appeals since the FTT decision in the present case, been granted leave to remain in the UK and “that therefore there can be no question of the entire family unit being removed to Ghana. That being so, it would not be in the best interests of the children to be deprived of contact with and the support of a loving mother”, especially as she posed no significant risk of re-offending.

In considering the UT’s own decision, regard must also be paid to the “Conclusion” at [40]. There is specific reference to the need for “exceptional circumstances” before the respondent’s deportation could be a “a disproportionate interference with her rights and those of her partner and children under Article 8 ECHR”. They expressed the view that the present case was even stronger on its facts than Ogundimu “and the application of the appropriate legal tests to the facts of this case inexorably leads to the same result” as the FTT’s decision.

The Secretary of State has three principal criticisms of the UT’s own decision.

First, as Mr Rene accepted, the supposed residence order played some part in their reasoning. It is impossible to know the weight the UT attached to it, because the discussion of the reasons for their own decision is so brief. But the extensive discussion of the residence order in the context of upholding the FTT’s decision, the absence of any disavowal of that factor in [39] – [40], and the statement in [39] that “[a]fter taking into account all the relevant factors we would have reached exactly the same decision” as the FTT, all strongly suggest that it was a factor of significance.

Secondly, it is said that the UT did not give weight to the high public interest in deporting foreign criminals. It is true that there is no mention of this in [39] – [40] beyond the reference to “exceptional circumstances” but the UT had expressly referred at [21] to MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544 and to the principle expressed in that case that “the scales are weighed very heavily in favour of deportation and something very compelling is required to outweigh the public interest in removal”. There is no reason to assume that the UT did not have in mind, when making their decision in [39] – [40], the principle stated in [21]. It was not necessary for the UT to lengthen their decision with unnecessary repetition.

Thirdly, it is submitted that the UT failed to take account of the option of AFG and the children relocating voluntarily to Ghana. They are all Ghanaian citizens with strong family and cultural links with Ghana. As it seems to me, this criticism is well-founded. Given the very strong public interest in the deportation of foreign criminals, it is necessary for a Tribunal to identify and analyse the counter-balancing factors so as to come to a clear view of their weight. Only in this way will it be seen why effect has not been given to that strong public interest. Given that the FTT had based their decision almost exclusively on the residence order, they had not analysed and weighed the option of a voluntary return by the children to Ghana. In view of their nationality and close links with Ghana, this required a careful examination However generously one reads the UT’s decision, particularly [39] – [40], I am unable to discern any real consideration of this. Reference is made in [39] to the decision of the First-tier Tribunal in the appeals by AFG and the children, but that decision itself was based to a substantial extent on the supposed existence and effect of the residence order.

In these circumstances, I am driven to the conclusion that the decision of the UT cannot stand. They erroneously gave weight to a non-existent residence order and they failed to take account of the potentially significant factor of a voluntary return by the family to Ghana or to consider or explain the weight to be attached to that factor.

For these reasons I would allow the appeal and would remit the case to a freshly-constituted First-tier Tribunal for a re-hearing, the course proposed by the Secretary of State if the appeal succeeded and not in that event opposed by the respondent.

I agree.

I agree. I add a few words in relation to residence orders. My Lord has explained the impact and effect of section 11(5) of the Children Act 1989. As to that, I have nothing to add. It is to the wider point that I turn.

My Lord has been justly critical of the failure of the parties to assist the FTT and the UT. For my part I would add that I find both the general lack of clarity in, and specifically the contents of the last paragraph of, the guidance set out in paragraph 16 above surprising, to say the least. It is very depressing. The law has been clear for the best part of 50 years.

I start with the much-cited judgment of Russell LJ in In re Mohamed Arif (An Infant) [1968] Ch 643, 662:

As I made clear in Re A (Care Proceedings: Asylum Seekers) [2003] EWHC 1086 (Fam), [2003] 2 FLR 921, para 48:

I had occasion to return to the point in R (Anton) v Secretary of State for the Home Department; Re Anton [2004] EWHC 2730/2731 (Admin/Fam), [2005] 2 FLR 818, paras 33-34:

It should go without saying, but I fear there is need to spell out what ought to be obvious: exactly the same principle now applies in relation to child arrangement orders as applied previously in relation to residence orders.

So far as I am aware, none of these principles have ever been challenged or doubted. Is it too much to demand that people pay more attention to them?

The fact that, in law, the Secretary of State is not bound by an order of the Family Court, as it now is, or of the Family Division, does not, of course, mean that she can simply ignore it. As Hoffmann LJ said in ex p T, 297,

Be that as it may, the fact is – the law is – that the Secretary of State when exercising her powers of removal or deportation is not bound by any order of the Family Court or of the Family Division and that the Secretary of State, if she wishes to remove or deport a child or the child’s parent, does not have to apply for the discharge or variation of any order of the Family Court of Family Division which provides for the child or parent to remain here.