Y (Failure to Clarify Immigration Status), Re

This application demonstrates the need to ensure that the immigration status of a subject child in public law proceedings before the Family Court is clarified at the earliest opportunity and that any issues with respect to that child’s immigration status are dealt with before final orders are made.

The application before the court concerns the position of Y, born in February 2020 and now aged 4 years old. The application is made by Y’s Special Guardian, BD. She is Y’s maternal aunt and is represented by Mr Zimran Samuel of counsel instructed by solicitors acting for her pro bono. Y’s mother is CK. She has been served with the application but has not attended the hearing and is not represented. Y’s father is UA. His whereabouts are unknown.

The applicant’s application on Form C2 has been issued under the case number for the concluded care proceedings in respect of Y that took place between 2021 and 2022 (the applicant local authority in the previous care proceedings, the London Borough of Barnet, has also been served with this application and has indicated that it supports the application and does not intend to make separate representations). During the course of his oral submissions, Mr Samuel also suggested that the court could proceed under the inherent jurisdiction of the High Court, although there is no application for relief under the inherent jurisdiction before the court. The applicant’s Form C2 states as follows with respect to the relief sought under the Children Act 1989:

In determining the application, I have had the benefit of a witness statement from the applicant in support of the application, certain documents from the previous care proceedings and a comprehensive and helpful Skeleton Argument from Mr Samuel, which he supplemented with short oral submissions.

Y was the subject of care proceedings under Part IV of the Children Act 1989 in 2021. Those care proceedings culminated in a Special Guardianship Order (SGO) being on 2 December 2022. The SGO contains, inter alia, the following recital:

It would not appear that the court gave a judgment on 2 December 2022. This court has little detailed information as to what evidence was before the court regarding the Y’s immigration status and the steps required to regularise her immigration position in this jurisdiction. Exhibited to the applicant’s statement is letter from the Home Office, dated 15 June 2022 and addressed to the Family Court at Barnet in response to an order from the court, confirming that the mother was refused indefinite leave to remain on 9 May 2018, was granted discretionary leave until 8 May 2021 and had an outstanding application for leave to remain as at June 2022. The Home Office further confirmed that it had no trace of Y. Whilst a Cafcass Report dated 16 June 2022 makes no mention of Y’s immigration position or of the need to clarify that issue, the statement of the social worker dated 18 November 2022, prepared for the IRH hearing on 22 December 2022 and recommending the making of an SGO in favour of the applicant, confirmed to the court that:

Also exhibited to the statement of the applicant is a report from a Turkish law firm dated 27 May 2022, which was provided to the local authority during the course of the care proceedings. That report opines that Y’s father is not recognised as her father under Turkish law as the mother was married to another man when Y was born; that Y is a Turkish national by birth because her mother was Turkish and married when Y was born; Y cannot obtain a Turkish passport without submitting an application with supporting documentation; that in the absence of consent from both parents Y cannot travel to Tukey without one of her parents under Turkish law accompanying her; and the SGO will not be recognised under Turkish law unless the applicant applies to the Turkish court to enforce that order.

In circumstances where the evidence before the court at the IRH on 2 December 2022 demonstrates that it had been confirmed in June 2022 that Y had no immigration status in the United Kingdom and faced difficulties securing immigration status in Turkey, it is not clear from the papers available to this court why steps to regularise Y’s immigration position were not taken prior to the court finalising the proceedings or why the court felt able to make a final order when the question of Y’s immigration status in this jurisdiction, and indeed in the other jurisdiction with which she had some connection, remained to be established. The court appears to have simply proceeded on the basis that further steps would be taken with respect to regularising Y’s immigration status in this country, with the assistance of the applicant local authority, without any clarity as to what those steps were or the chances that they would be successful.

In her statement the applicant confirms that, following the granting of the SGO, she applied for a British passport for Y. It is not clear what steps were taken prior to that application being submitted to confirm that Y was, in fact, entitled to a British passport. From the documents exhibited to the applicant’s statement it is clear that the Passport Office considered that there was insufficient evidence to demonstrate that Y was entitled to a British passport and requested that the applicant provide such evidence. On 17 June 2023, the Passport Office confirmed that the application for a British passport for Y had been refused. The grounds for that refusal were as follows:

The applicant goes on to describe in her statement the difficulty she had in obtaining any further information on the immigration status of Y’s mother and father in circumstances where the mother resists any form of contact and the whereabouts of the father are unknown. However, on 4 September 2023 Y’s mother confirmed during a telephone call to the applicant’s solicitor that she, the mother, did not hold British citizenship at the time of Y’s birth. The mother did not confirm her current immigration status.

The applicant contends that the situation in respect of Y’s immigration status has now become urgent in circumstances where Y’s maternal grandmother has become ill in Turkey following a significant decline in her health. In the foregoing context, the applicant states as follows in the final paragraph of the witness statement in support of her application:

Mr Samuel confirmed that, notwithstanding that the refusal letter from the Passport Office of 17 June 2023 contained advice on how to apply for British Citizenship for Y, no application for British Citizenship for Y pursuant to s.3(1) of the British Nationality Act 1981 has been made by the applicant to date.

Whilst on the face of the applicant’s Form C2, the primary application is for a recital requesting that the Secretary of State of Home Affairs grant Y British Citizenship under the British Nationality Act 1981 outside the immigration rules (or an emergency travel document on an interim basis), during the course of his submissions Mr Samuel sought to reframe the application as an application for a disclosure order on which the court is invited to include such a recital.

In the context of the background set out above, in his Skeleton Argument Mr Samuel submits that this court should give permission to the applicant to disclose the papers from the care proceedings to the Secretary of State for the Home Department to assist with a now intended application under to s.3(1) of the British Nationality Act 1981. Mr Samuel further asks the court to include on the face of that disclosure order the recitals he seeks requesting that the Secretary of State of Home Affairs grant Y British Citizenship under the s.3(1) of the 1981 Act and clarifying that in December 2022 the court considered it in Y’s best interests to live permanently with her maternal aunt in the United Kingdom and that it was expected that her maternal aunt would obtain a British passport for her.

Mr Samuel submits that the court is able properly to place such recitals on the face of the disclosure order that he seeks and should do so in circumstances where:

Section 14C of the Children Act 1989 provides as follows with respect to the effect of a Special Guardianship order:

Section 3(1) of the British Nationality Act 1981 provides as follows with respect to the discretion of the Secretary of State for the Home Department to register a child as a British citizen:

Section 3(1) of the 1981 Act confers on the Home Secretary a general discretion to register any child as a British citizen. The requirements for registration are that the child must be under the age of 18 on the date of the application, must be of good character if they are age 10 years of older and the Secretary of State must think it fit to register the child.

I am satisfied that it is appropriate for this court to permit the applicant to disclose to the Secretary of State for the Home Department and the Passport Office the documents that will be specified in that order. I am not, however, satisfied that it is appropriate for the court to include in that order a recital requesting the Secretary of State for the Home Department grant Y British Citizenship or a recital summarising the intention of the court at the conclusion of the care proceedings in December 2022. My reasons for so deciding are as follows, dealing first with the question of recitals.

The precise terms of the recital sought by the applicant with respect to the issue of Y’s citizenship is set out in the following terms in the draft order prepared by Mr Samuel:

It has long been established that the courts should not make orders that impinge upon or prevent the exercise by the Secretary of State for the Home Department of powers lawfully conferred upon him by Parliament in the context of immigration and asylum, or permit the court’s process to be used in a way which impermissibly impacts upon the proper exercise by the Secretary of State of those powers.

In Re Mohamed Arif (An Infant); Nirbai Singh (An Infant) [1968] Ch 643, Lord Denning made clear, in a case concerning wardship brought at a time when control over wards was vested in the Chancery Division, that the court will not exercise its jurisdiction so as to interfere with the statutory machinery set up by Parliament, that such applications are misconceived and that the courts should refuse to entertain them.

In R v Secretary of State for the Home Department ex parte T [1995] 1 FLR 293 the Court of Appeal held that orders made under the wardship jurisdiction or under the Children Act 1989 could not deprive the Secretary of State of the power conferred by the Immigration Act 1971 to remove or deport the child or any other party to the proceedings. In R v Secretary of State for the Home Department ex parte T the Court of Appeal recognised that an order made by, and any views expressed by, the court in proceedings under the wardship jurisdiction or under the Children Act 1989 may be something to which the Secretary of State should have regard in deciding whether to exercise that power. Hoffman LJ (as he then was) went on to state, however, that in cases in which there is, apart from immigration questions, no genuine dispute concerning the child, the court will not allow itself to be used as a means of influencing the decision of the Secretary of State and that:

In Re A (Care Proceedings: Asylum Seekers) [2003] EWHC 1086 (Fam), [2003] 2 FLR 921 and In R (Anton) v Secretary of State for the Home Department; Re Anton [2005] 2 FLR 818, Munby J (as he then was) re-emphasised the conclusion of Hoffman LJ (as he then was) in R v Secretary of State for the Home Department ex parte T that if, apart from immigration questions, there is no genuine dispute concerning the child, then the court must not allow itself to be used as a means of influencing the decision of the Secretary of State and that the use of the court's jurisdiction merely to attempt to influence the Secretary of State is an abuse of process. In S v S [2008] EWHC 2288 (Fam), [2009] 1 FLR 241 Munby J (as he then was) again reiterated at [17] that the court must avoid its process being used for some impermissible purpose or in a way which impermissibly impacts upon the proper exercise by the Secretary of State of his powers. In S v S Munby J was invited in wardship proceedings to make a declaration in respect of a detained child asylum seeker that the subject child's health was of concern and not being properly addressed within the circumstances of his detention. In rejecting that invitation, Munby J observed as follows:

Whilst I accept at Mr Samuel’s urging that in Akhtar v Ayoub Holman J stated that the court may express requests and opinions to the Secretary of State, it is not clear that Holman J’s attention was drawn to the foregoing authorities, and in particular to the decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte T,in which Hoffman LJ (as he then was) held that if, apart from immigration questions, there is no genuine dispute concerning the child, the court must not allow itself to be used as a means of influencing the decision of the Secretary of State and that the use of the court's jurisdiction merely to attempt to influence the Secretary of State by way of findings of fact or expressions of opinion on matters which are for his decision is an abuse of process.

Apart from the ongoing difficulties with respect to her immigration status, there is no extant dispute concerning Y. As noted above, whilst during his oral submissions Mr Samuel sought to reframe the contents of the Form C2 as an application for a disclosure order on which the court is invited to include the recitals sought, on the face of the applicant’s Form C2 the primary application is for a recital in the terms set out above requesting the Home Secretary grant Y British citizenship. The application for disclosure is secondary and relates primarily to disclosure of the order containing the recital sought. In this context, it is of note that in the WhatsApp messages from the applicant’s solicitor to the mother that are contained in the bundle, the applicant’s solicitor states that:

Having regard to these matters, and notwithstanding Mr Samuel’s efforts to reframe it, I am satisfied that the application before the court constitutes an impermissible attempt to influence the Secretary of State by obtaining an expression of opinion from the court on matters which are for the Secretary of State’s decision, namely whether or not, if an application is ultimately made, Y should be registered as a British Citizen pursuant to s.3(1) of the British Nationality Act 1981. That, I am satisfied, is an abuse of process having regard to the authorities that I have summarised above.

Once again, there is at present no dispute in respect of Y justiciable in the Family Court. Whilst Y’s immigration position is undoubtedly difficult, the proper course for the applicant to take is to make the application under s.3(1) of the British Nationality Act 1981. It may be that upon considering such an application the Home Secretary will, having regard to the fact that Y has been made the subject of a SGO by the English court placing her in the care of the applicant in this jurisdiction and permitting the applicant to exercise parental responsibility for her to the exclusion of her parents, decide to exercise his discretion in favour of registering Y as a British citizen. But that decision is one solely for the Secretary of State for the Home Department under powers conferred on him by Parliament. It is no part of this court’s function to interfere with that decision making process and it would be constitutionally improper for the court to do so. If the decision made by the Secretary of State is not acceptable to the applicant, then she is able to seek redress in the Administrative Court if she can demonstrate arguable grounds for judicial review having a realistic prospect of success.

I reach the same conclusion in respect to the recital sought by the applicant recording what are said by Mr Samuel to have been the intentions of the court when making the order on 2 December 2022. In addition, whilst certain matters appear implicit in the order made on that date, in the absence of a judgment this court has no means now of determining retrospectively the express intention of the court on that date. In the circumstances, I also decline to add that recital to the order.

With respect to Mr Samuel’s submission that, in the circumstances that have arisen in this case, the SGO is “indirectly and unintentionally breaching the applicant’s human rights”, that argument has no merit. As Munby J (as he then was) made clear in CF v Secretary of State for the Home Department [2004] 2 FLR 517, at [24]:

The writ of the Family Court does not run free. It is, as with the other courts in the jurisdiction, constrained by fundamental constitutional principles. The Family Court is not able to make orders simply because a child is in a difficult situation or simply because it appears that a particular course of action is in a child’s best interests. The Family Court is required to adhere to the legal, procedural and constitutional boundaries that demarcate its powers. Save for an order permitting disclosure of documents from the care proceedings to the Secretary of State for the Home Department, I am satisfied it would be wholly improper to grant the other relief sought by the applicant.

The difficulties that have arisen in this case for the applicant and Y could have been avoided, or at least significantly mitigated, had the parties and the court engaged with, investigated and sought to resolve the issues with respect to Y’s immigration status at the outset of the previous care proceedings. In Re B (Children: Abduction: Consent: Oral Evidence: Art 13(b)) [2023] Fam 77, Moylan LJ made clear that, in circumstances where there are increasing numbers of cases in which the question of immigration status is relevant, it is important that this issue is raised at the outset of the proceedings so that the need for evidence can be addressed at that stage.

Whilst Moylan LJ’s observations in Re B (Children: Abduction: Consent: Oral Evidence: Art 13(b)) were made in the context of child abduction proceedings under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, they are equally applicable to care proceedings under Part IV of the Children Act 1989, where issues with respect to the child’s immigration status may affect in particular the permanence provisions of the care plan that the court is required to consider pursuant to s.31(3A)(a) of the Children Act 1989. This is not least because that is what is mandated by the Public Law Outline in FPR PD12A.

Part 12 of the FPR and PD12A make clear that in care proceedings under Part IV of the Children Act 1989 the court must consider at the outset of proceedings issues arising from the subject child being a foreign national or the family having a connection to a foreign jurisdiction. PD12A paragraph 1.3 stipulates that in applying the provisions of FPR Part 12 and the Public Law Outline, the parties must have regard, inter alia, to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. The Pre-Proceedings Checklist in the Public Law outline in PD12A specifies that the Checklist Documents will include foreign orders and judgments and Immigration Tribunal documents. The Public Law Outline requires the court, within a day of issue, to consider the question of jurisdiction in a case with an international element. The Standard Directions on Issue and Allocation that the court is required to give within a day of issue include a direction identifying whether a request has been made, or should be made, to a Central Authority or other competent authority in a foreign state or a consular authority in England and Wales in a case with an international element. The Standard Directions on Issue and Allocation also provide for directions to send requests for disclosure to public bodies in this jurisdiction.

With respect to the question of immigration status, in care proceedings involving a foreign national child or a family with a connection to a foreign jurisdiction, the immigration status of the subject child(ren) and the parents must be considered at the point the proceedings are issued. This will involve, as a first step, the court making a Standard Direction on Issue and Allocation under the Public Law Outline within a day of issue seeking disclosure from the Home Office via Form EX660 of information on the immigration status of the child and the parents. Once that information is available, and pursuant to Stage 2 of the Public Law Outline, the parties must at the Advocate’s Meeting, and the court must at the Case Management Hearing, identify any issues arising from the child’s immigration status and finalise further directions for securing the evidence or expert opinion required to address those issues at the Issues Resolution Hearing, or at the final hearing if one is required, before a final order is made. It is not acceptable for issues regarding immigration status to be left to be investigated at the IRH or final hearing and even less acceptable for them to be left unresolved at the point the court makes a final order.

I will make an order permitting the applicant to disclose to the Secretary of State for the Home Department those documents from the care proceedings identified in that order. Otherwise, and for the reasons I have given, the applicant’s application will stand dismissed.