BN, R (on the application of) v Secretary of State for the Home Department

This is a claim for Judicial Review. The principal challenge is to a series of decisions by the Secretary State for the Home Department dated 22 September 2010, 21 October 2010 and 8 November 2010 by which she refused to accept further representations served on behalf of the Claimant as constituting a fresh human rights claim under paragraph 353 of the Immigration Rules. In addition the Claimant challenges as irrational a decision taken on 10 November 2010 not to delay the removal of the Claimant to Malawi pending consideration by the Office of the Children's Champion ("the OCC”) of new material which had been sent by the Claimant's Solicitor to the Defendant but not passed on to the OCC. Both claims focused on the Article 8 rights of the Claimant's children and the duty arising under section 55 of the Borders, Citizenship Immigration Act 2009 (“the 2009 Act”) as interpreted by the Supreme Court in ZH (Tanzania) v SSHD [2011] UKSC 4, [2011] 2WLR 148.

The Claimant is a citizen of Malawi. She was born on 19 April 1971 and is now aged 40. She has four siblings. Her sister F K and her brother M N enjoy indefinite leave to remain in the United Kingdom. A second brother resides in Nigeria and a third works as a missionary in Malawi.

The Claimant has two children: a boy, K K, born on 26 November 1993, now aged 17, who arrived in the United Kingdom in 2001 and a girl, T K born on 14 April 1996, now aged 15, who arrived in the United Kingdom in 2002. When they arrived in the United Kingdom the children lived in Nottingham with the Claimant's sister Ms. K who became their guardian in August 2004.

The Claimant remained in Malawi. She claimed she had suffered abuse at the hands of her partner, the father of the two children. On 12 November 2004 she entered the United Kingdom as a visitor and initially lived with her children and Ms. K. She subsequently applied to vary her leave so that she could remain as a student. This application was refused. She sought further leave to remain which was granted until 31 October 2006. As from 1 November 2006 the Claimant overstayed. The circumstances of where she lived and the extent to which she lived with her children and of her contact and relationship with them are in issue and lie at the heart of this claim.

In 2008 the Claimant was diagnosed with HIV. In May 2010 Ms. K was granted indefinite leave to remain. In June 2010 the children made an application for settlement but the applications were returned and treated as invalid. On 15 July 2010 the Claimant was detained by the UK Border Agency whilst working at a restaurant in Nottingham. She claimed asylum. On the same day the children's applications were resubmitted. On 12 August 2010 the UKBA consulted the OCC in relation to the Claimant and her children. In an e-mail on that day Mr. Daniel Smith, a Senior Executive Officer Team leader based at Yarl’s Wood Immigration Centre in the Detained Fast Track Team (“the DFT Team”) answered questions posed by the OCC. On 17 August 2010 Ms Donovan of the OCC responded posing further questions and asking for further information. Also on 17 August a member of the DFT Team informed the OCC, after discussion between Mr. Smith and Mr George Menzies, the Assistant Director of the DFT Team, that Mr. Smith’s unit would revisit the situation following consideration of the case by the Immigration and Asylum Chamber on 26 August 2010.

On 17 August 2010 the Secretary of State refused the Claimant’s asylum application. The basis of her claim was that she feared her ex-partner in Malawi. The Claimant appealed against the decision. One of the grounds on which she appealed, which is relevant for present purposes, was that removal would breach her Article 8 rights to a family life with her children and their Article 8 rights to a family life with her. The appeal was refused on 27 August 2010 by Immigration Judge Freestone and on the same day removal directions for the Claimant to be sent to Malawi were set. On 7 September 2010 the Upper Tribunal refused the Claimant permission to appeal against the decision of Immigration Judge Freestone.

On 13 September 2010 Mr. Smith made what he described as further submissions to the OCC in an e-mail in which he made full reference to Immigration Judge Freestone's findings. On 14 September 2010 Ms Donovan of the OCC responded to the UKBA agreeing with the proposed removal of the Claimant to Malawi.

On 17 September 2010 further representations were served on behalf of the Claimant on the Secretary of State. Of relevance to the present claim was the submission that she had failed to consider the Claimant's and her children's circumstances and give regard to the duty imposed under section 55 of the 2009 Act with respect to safeguarding and promoting the welfare of children. The 2009 Act it was said was not considered by the Tribunal at the time of the Claimant's appeal hearing. Reliance was placed on the decisions of the House of Lords in Beoku Betts [2008] UKHL 39 and EM (Lebanon) [2008] UKHL 64 and the requirement that consideration must be given to the rights of affected children.

In a letter dated 22 September 2010 the Secretary of State rejected the representations and refused to accept them as constituting a fresh human rights claim. I will return to the contents of that letter.

On 23 September 2010 Cranston J. granted an injunction restraining the Secretary of State from implementing the removal of the Claimant which had been set for that day to enable her to address what he described as the material said to constitute a fresh claim. On 27 September 2010 Cranston J granted an application that the consideration of the application for permission to pursue judicial review be expedited. In doing so he recorded that he had not had sight of the Secretary of State's letter of 22 September 2010 when granting his injunction on 23 September 2010.

On 14 October 2010 the Claimant's solicitors served on the Treasury Solicitors an independent social worker's report prepared by Christine Brown dated 11 October 2010. At the hearing before me this was the document upon which the Claimant placed most reliance in support of her claim for judicial review. It was based on two meetings with Ms. K and the Claimants' two children and an interview conducted by video link at Yarl’s Wood Detention Centre with the Claimant on 4 October 2010.

Although the Claimant's Solicitors’ letter dated 4 October 2010 enclosing the Brown report did not expressly invite the Secretary of State to treat it as evidence in support of further representations and an application to treat such representations as a fresh claim, that was done in a letter from them dated 20 October 2010.

On 19 October 2010 Lord McDonald of River Glaven Q.C. sitting as a Deputy High Court Judge refused the Claimant permission to apply for judicial review. As well as rejecting the Claimant's Article 3 claim based on her HIV condition as having been very recently considered by the First Tier Tribunal and because of the absence of credible evidence to suggest that she would be unable to access treatment in Malawi, he held that the Article 8 ground failed. He commented: "The evidence indicates that the Claimant does not live with or substantially care for her two children, who were placed under the guardianship of her sister in 2004. The sister remains their main carer. The Claimant does have some family life, but its strength is not such as to outweigh the public interest in maintaining fair, consistent and effective immigration control". Although the order does not indicate whether the Brown report was among the documents which Lord McDonald considered, Mr. Drabble Q.C. who represented the Claimant in front of me, accepted that it probably was.

On 21 October 2010 the Secretary of State rejected the Claimant's further representations and decided that they were not significantly different from the material previously considered, and thus did not amount to a fresh claim for asylum and human rights. I refer to the contents of that decision letter below.

On 29 October 2010 Kenneth Parker J. refused a further application for an injunction preventing the Claimant's removal and permission to amend the grounds for judicial review. In his reasons he stated that the claim under Article 8 had been exhaustively and carefully considered in the appeal proceedings and that the application was a blatant attempt to mount a collateral challenge to the recent findings in the appeal through a report by a social worker who, relying essentially on matters put forward by interested persons, purported to reject the conclusions of the immigration judges (sic). He said that there was nothing in the material before him that cast doubt on the correctness of the order made by Lord Macdonald Q.C. on 19 October 2010 dismissing the application for permission to apply for judicial review. On the same day the Claimant's removal was cancelled due to her ill health and was re-fixed for 10 November 2010.

On 3 November 2010 the UKBA informed the Claimant that removal directions had been given for her removal from the United Kingdom to Malawi at 8:25pm on 10 November 2010. On the same day the Claimant’s solicitors asked the Treasury Solicitors to confirm as a matter of urgency that the Secretary of State had involved the Children's Champion in her decision to “split the claimant and her two children" and to send a copy of the Children's Champions decision. Confirmation was also sought that the Secretary of State had given full and proper consideration to section 55 of the 2009 Act and its relevant guidance and that removal would be deferred pending a renewal hearing and such confirmation. Reference was made to the recent judgment of Wyn Williams J. in TS [2010] EWHC 2614 (Admin).

In a letter also dated 3 November 2010 Mr. Smith responded to that letter. He confirmed that the Children's Champion approved the proposed removal and splitting of what he described as the biological family (a reference to the Claimant and her two children) on 14 September 2010. He further stated that section 55 of the 2009 Act had been complied with as per the case of TS. He said that the status of the Claimant and her biological children had been given full consideration by the UKBA prior to the decision of the intention to remove. He said that it was clear that the proportionality of removal was fully considered with full reference given to section 55. He further stated that the Claimant’s “renewal to a judicial review oral hearing” would not stop the proposed removal, Lord McDonald Q.C. in his order of 19 October 2010 refusing permission for judicial review having clearly stated that any renewal of the application was to be no bar to removal. He confirmed that the UKBA were still proposing to remove the Claimant to Malawi and that her solicitors would be informed of the proposed flight in due course.

Also on 3 November 2010 the Claimant's solicitors responded to Mr. Smith's letter of that date asking for written evidence of a request to and response from the Children's Champion in the Secretary of the State’s decision to split the Claimant and her two children and full reasons why the Secretary of State believed that in spite of the judgment in TS the Claimant's removal would not be contrary to Section 55 of the 2009 Act. On 4 November 2010 Mr. Smith replied by attaching copies of e-mail correspondence between the Children's Champion and UKBA dated 13 and 14 September 2010 confirming the agreement to remove the Claimant. He said that the UKBA had reviewed Section 55 of the 2009 Act and the case of TS which he said could be distinguished because TS was a child himself whereas the Claimant is an adult. All the factors considered in TS were in reference to the removal of a child not an adult. As to Section 55 Mr. Smith stated that the Claimant’s circumstances and the welfare of her biological children had been considered by the UKBA, the Immigration and Asylum Chamber and the High Court and that on each occasion the Claimant had been found not to have a family life with them. Hence the UKBA considered that the welfare of the claimant’s children would not be disproportionately affected by the removal of their biological mother because their guardian, in relation to whom they had made dependency applications and on whom they were solely dependent for their welfare, was their biological aunt and not their mother. He concluded by saying that the UKBA still proposed to remove the Claimant to Malawi with the flight currently proposed for 10 November 2010.

On 5 November 2010 the Claimant’s solicitors wrote to the Treasury Solicitors expressing concern that the Children's Champion would not have been in a position to make a proper assessment in respect of splitting the Claimant and her two children without relevant supporting documentary evidence. They were asked to refer the matter to the Children's Champion with the following documents: the Brown report dated 11 October 2010, two letters from the Claimant's children which formed part of the evidence considered by Immigration Judge Freestone, a letter dated 21 October 2010 from Janet Galsworthy, a project worker employed by The Children's Society and a letter from Professor Robert Mokaya dated 23 August 2010. Professor Mokaya was the Elder and student chaplain of the Nottingham Central Seventh Day Adventist Church. His letter stated that the Claimant and her children were very well integrated into the local community and that any permanent removal of the Claimant would adversely affect the children socially, emotionally and academically and would be very destructive to a well settled and integrated family. That letter had previously been submitted by the Claimant both to the UKBA and to the First Tier Tribunal. The letter from the Claimant's solicitors submitted that it could not be in the best interests of the children to be separated from their mother and that the Secretary of State could not waive her duties by relying on the decision of the First Tier Tribunal and recent preliminary decisions by the Administrative Court.

On 7 November 2010 the Claimant’s solicitors wrote a further letter enclosing the documents previously sent on 5 November 2010 and in addition a further letter from Ms. Galsworthy of The Children's Society dated 5 November 2010, a further letter from Professor Mokaya dated 4 November 2010 and a letter from the Claimant's son’s school. The Treasury Solicitors were asked to submit those documents to the Children's Champion for urgent consideration and the letter concluded: “I trust that your client will be minded to defer removal directions pending the above and pending the Claimant’s renewal hearing which has been listed to be heard on 17 November 2010".

On 8 November 2010 Mr. J. Bowers Q.C. sitting as a Deputy High Court Judge refused an application for expedition of the consideration of the renewal of the Claimant’s application for permission to apply for judicial review. In his reasons he said that the matters raised in the report of S. Valdez (sic), agreed by counsel to be a mistake for the Brown report, had already been considered and that he thought it highly unlikely that a judge on renewal would take a different view from those of Lord McDonald or Kenneth Parker J.

Also on 8 November 2010 the UKBA responded to the Claimant’s solicitors letters of 7 November 2010 addressed to the Treasury Solicitors with its enclosures and dated 1 November 2010 addressed to the UKBA at Yarl’s Wood with its enclosures. (The latter document was not in the papers before me). This letter rejected the Claimant’s further representations. It also stated that the points raised in the Claimant’s submissions had been considered when "the earlier claim" was determined and that the latest submissions taken together with the material previously considered in the refusal decision would not have created a realistic prospect of success before an immigration judge. It was thus determined that the submissions did not amount to a fresh claim. It is not clear whether “the determination of the earlier claim" was intended to refer to the decision of Immigration Judge Freestone or to the decision of the Secretary of State against which the appeal to Judge Freestone had been made. The letter confirmed that arrangements to remove the Claimant from the United Kingdom would proceed. In the letter reference was made to the documents submitted in support of the Claimant's claim that her removal would disproportionately interfere with her family life. It was said that that issue had been fully considered by the independent judiciary on a number of occasions and as recently as on 19 October 2010 when Lord MacDonald had refused permission to apply for a judicial review and was said to have found: “The evidence indicates that the Claimant does not live with or substantially care for her two children who were placed under the guardianship of her sister in 2004, her sister remains their main carer … the Claimant does have some family life but its strength is not such as to outweigh the public interest in maintaining fair, consistent and effective immigration control …” In view of the judge’s findings the letter stated that the documents did not add any weight to the Claimant's claim. For those reasons the submissions in the Claimant’s solicitors’ letters dated 1 and 7 November 2010 were rejected.

On 9 November 2010 Treacy J. rejected an application for a stay of removal. In his reasons he stated that the matter had been extensively considered and reconsidered in recent times and that the application for a stay represented a further attempt to re-argue matters. He said that he was unpersuaded by the further evidence on Article 8 grounds which did not sit well with the clear findings in the Tribunal. He said that the Secretary of State had clearly considered her duties under section 55 of the 2009 Act in a letter dated 22 September 10. He described the application as totally without merit and directed that his order was to be no bar to removal without further order.

On 10 November 2010 the Claimant’s solicitors served notice on the Treasury Solicitors of an appellant’s notice against the refusal of a stay and noted that they had still not received a response to their request for all information submitted to the Secretary of State to be sent to the Children's Champion and asking for confirmation that that had been done and to be provided with the Children’s Champion’s response as a matter of urgency. In a letter also dated 10 November 2010 the UKBA responded, but the response was confined to the question of the proposed appeal against the refusal of stay, as to which it was stated that absent an injunction there would be no deferral of the Claimant’s removal. There was no response to the request for confirmation that all the information submitted to the Secretary of State had been sent to the Children's Champion or to the request to be provided with the Children's Champion's response.

On 10 November 2010 Carnwath LJ refused an application for permission to appeal against Treacy J's order. He said he could see no arguable grounds for interfering with the exercise of the discretion to refuse a stay.

It was agreed between Ms Carss-Frisk Q.C. who appeared on behalf of the Secretary of State and Mr. Drabble Q.C. that the Claimant’s further representations contained in the various letters to which I have referred were finally rejected in the UKBA letter dated 8 November 2010 and that that letter constituted the final decision on behalf of the Secretary of State that none of the Claimant’s representations constituted a fresh claim. However, apparently unknown to the Claimant’s solicitors, on 10 November 2010 there was further contact between Mr. Smith and the OCC. Mr. Smith in a witness statement prepared for these proceedings stated that on 10 November 2010 it was noted internally that the UKBA Operational Support and Certification Unit (“OSCU”) response dated 8 November 2010 rejecting the Claimant’s further submissions had not addressed the Claimant’s solicitors’ request to have the OCC review its advice. He explained that the Claimant’s solicitors’ request for a deferral of removal of 5 November 2010 had been sent to OSCU for its consideration because when removal is imminent it is OSCU who respond to last-minute representations. It was OSCU which had faxed the letter dated 8 November 2010 rejecting the Claimant’s representations to the Claimant’s solicitors.

Mr. Smith stated that he did not consider it necessary at that stage to consult the OCC further because he was confident that all the substantive issues had already been addressed and that no further advice on section 55 was required. However he decided to do so, given the request of the Claimant’s solicitors that the OCC be asked for their views. As a result he sought through e-mail and fax to have the OCC review its advice.

No such e-mail or fax was in the papers before me. There was however an e-mail timed at 5.05pm on 10 November 2010 to Mr. Smith from Karen Tatom some three hours before the Claimant’s flight to Malawi was due to leave. That e-mail referred to phone calls and faxes late that afternoon (but not an e-mail) from Mr. Smith to Caroline Rowe. Ms. Rowe also made a witness statement in which she stated that she manages the OCC which she said combines career civil servants employed directly by the Home Office such as herself with two qualified social workers, Barbara Donovan and Karen Tatom, who are seconded to the UKBA from local authorities. Ms. Rowe stated that within the OCC it is usually the professional advisers who advise on individual cases drawing on their professional social work expertise although they consult her and other civil service colleagues from time to time. Queries are usually received by e-mail via a dedicated Children's Champion inbox and staff are asked to allow five days for a response as the OCC does not operate an on-call service. However they seek to respond more quickly if possible when there is an operational need to do so.

Ms. Rowe stated that once the OCC has provided advice on a case they would not generally expect the business area to return to it for further advice but the business area could do so, for example if there were a significant change of circumstances relevant to the child's welfare. The OCC would rely on the UKBA case owner to reach that view.

Ms. Rowe stated that the OCC’s first involvement in this case was on 6 August 2010 when a request for advice was sent to the Children's Champion inbox by the Midlands and East Region Secretariat. The request was dealt with by Ms. Donovan, who advised that a number of issues needed further investigation and consideration before a proper view could be taken on the welfare needs of the children. Further exchanges followed with colleagues in the DFT and the OCC was informed on 17 August 2010 that a decision had been taken to consider the Claimant’s case separately of any action on the children's cases. Should a removal become necessary at a later stage DFT colleagues would come back to the OCC for advice. In fact on 17 August Ms. Donovan sent an e-mail to Mr Smith in which she said that the OCC felt that they had very little information on which to base the welfare of the children and that it might help once the UKBA had interviewed the Claimant and the OCC could see what else she said. She advised that a mother cannot ‘just sign’ over the legal responsibility for her children. The OCC would not want to leave the children in the UK with no status, they would want to remove them with their mother or if there were exceptional circumstances they would need to make arrangements to regularise their stay which had just been refused. Ms. Donovan’s view that the OCC had very little information on which to base the welfare of the children followed an e-mail to her from Mr. Smith dated 12 August 2010 in which he said that UKBA records indicated that they lived with their aunt to whom the Claimant had signed over the legal guardianship on 6 August 2004 and that they had been visited in 2007 by social services who had no concerns with their living conditions with the aunt. That e-mail was in turn a reply to Ms. Donovan's e-mail of 11 August 2010 in which she asked: “Do we know what the children's views are? They are 17 years in November so are old enough to have a view. Would [children's services] talk to the children on our behalf if needed? Is their main relationship with their auntie? Do we know why they live with her rather than [the Claimant]. I want to be sure what is in the children's best interests … We would not want to split a mother and her twin children unless there are very good reasons”. It would thus appear that Ms. Donovan incorrectly believed that the children were twins and that the Claimant’s daughter was nearly 17 years old whereas in fact she was only 14 years old.

On 13 September 2010 Ms. Rowe said that the DFT Team contacted the OCC again to say that the Immigration Asylum Chamber had considered the Claimant’s appeal and found that her removal would not mean that the UK would breach obligations under Article 8 in terms of a direct impact on the Claimant or indirect breach in relation to her family members and biological children. It was therefore proposed to remove the Claimant from the UK. In her statement Ms Rowe stated that Ms. Donovan sought further information on the children's status and any involvement of social services with the family. And that on 4 September 2010 Ms. Donovan indicated her support for the removal proceedings.

In an internal UKBA email dated 11 September 2010 Mr George Menzies, the Head of Unit (Assistant Director) for the DFT team including the office based at Yarl’s Wood Immigration Removals Centre, wrote to Alan Yates, a member of his team, asking if the OCC had been consulted and expressing the view that they still needed to be consulted even if the OCC confirmed that they had no objection to removal. Mr Yates duly emailed the OCC on 13 September 2010 saying that he would forward them copies of previous emails and asking if they wanted a faxed copy of the determination of the immigration charge.

On the same day Ms Donovan from the OCC replied confirming that she had not yet seen but wished to see the previous emails, but saying that she noted the recent appeal ruling and could see no reasons why she would not support the Claimant’s removal. She also asked to know of any involvement from the local authority’s children services and what consideration the UKBA had given to the children’s status. There follows in the papers before the court a summary of the Immigration Judge’s determination which is in part inaccurate in that she was described as having found that the Claimant did not have a family life in the UK, whereas in fact the Immigration Judge stated that she accepted that there will always be a family life between a mother and her children, that she was satisfied that the Claimant is the biological mother of K and T, that the Claimant does have an element of family life with her children and that the issue to decide was one of proportionality, that the Claimant’s children were encouraged to stay with her on occasions and that there would be much less disruption to the family life between the Claimant and her child if they were living together as a functioning family unit, the necessary inference being that she was satisfied that there would be some disruption to the family life between the Claimant and her children if she were removed to Malawi.

On its face this appeared to be part of Ms Donovan’s email, but taken together with the succeeding paragraph, which stated that removal was not appropriate, the passage, which came after Ms Donovan had said thank you, raise a question in my mind as to whether it in fact emanated from the UKBA, not least because it was timed at 3:27 p.m. and Mr Yates replied at 3:52 p.m. to say that he would fax the immigration judge’s ruling to her, thereby suggesting that Ms Donovan had not yet read it when she wrote her email. Moreover the passage was identical to a passage in an undated memo from Mr. Yates to Mr. Menzies inviting him to agree to the removal of the Claimant. Thus either, as seems more likely, Ms Donovan had been given an inaccurate summary of the Immigration Judge’s findings on family life or she had herself mis-stated them. Whichever is the case, the summary was inaccurate.

In his email of 13 September 2010 Mr Yates also said that he would fax the previous emails to Ms Donovan but the next day on 14 September 2010 Ms Donovan emailed him at 1:54 p.m. to say that he could not fax her any papers and would either have to scan them or summarise them for her. Four minutes later, presumably before any further papers had been faxed to and read by her, she emailed Mr Yates at 1:58 p.m. to say that she had replied to Mr Smith “supporting the submission”. That was a reference to an email from Ms Donovan to Mr Smith dated 14 September 2010 also timed at 1:58 p.m. in which she said: “… I agree with the ruling of the appeal court. I support your submissions.” That was a reply to an email to her from Mr Smith dated 13 September 2010 in which he answered the two questions Ms Donovan had posed in her email to Mr Yates on that day in relation to involvement from the local authority children’s services (he said there had been none since March 2007) and the immigration status of the children (he said that they had both made indefinite leave to remain applications as dependant minors on the basis of their Aunt F being a relative present sand settled in the UK). In that email Mr Smith had asked Ms Donovan whether, unless she required further specific information which he was happy to provide, she would now consider it appropriate for the UKBA to remove the Claimant.

At the beginning of November 2010 the DFT team contacted the OCC to ask for its agreement to the disclosure of previous e-mails which was given. The OCC’s next involvement was late in the afternoon on 10 November 2010 when Ms. Rowe was telephoned by Mr. Smith of the DFT Team at the Yarl’s Wood immigration and removal centre. Mr. Smith indicated that further papers had been submitted by the Claimant’s representatives and asked whether OCC would wish to review its advice on the case.

In her statement Ms. Rowe stated that she did not feel able to comment on that without understanding what the papers were. So Mr. Smith faxed them through to OCC. Ms. Rowe and Karen Tatom then considered the original submission requesting OCC advice on the family split, Ms. Donovan's response to that request, the letter from the Claimant’s solicitors dated 5 November 2010 which was sent through late that afternoon, a letter from Professor Mokaya which she understood the immigration judge had already considered, the two children’s letters dated 11 August 2010 and the letter from the Children's Society dated 21 October 2010.

Ms. Rowe stated that the OCC did not have access to the report of the independent social worker although they were aware that one existed as it was referred to in other documents they had sight of. Nor did the OCC have the response provided by the UKBA to the letter from the Claimant’s solicitor dated 5 November 2010.

Ms. Rowe stated that that was the first involvement from Karen Tatom or herself in the substance of the case and they were unable to consult Ms. Donovan who was out on the office on other business. She stated that given the very short time frame (the Claimant had been scheduled for removal that evening) and the fact that they did not have the chance to consider all the relevant information they were not able to form a view on the implications, if any, of that new material for the welfare of the children.

In her e-mail to Mr. Smith timed at 5.05pm on 10 November 2010, whose importance was marked as high, Ms. Tatom said that both Ms. Rowe and she had reviewed the documents to which I have referred but they were unable to review the UKBA response to the letter from the Claimant’s solicitors as it had not been provided. (That is presumably a reference to the letter dated 8 November 2010 rejecting the Claimant’s representations and indicating that the Secretary of State did not consider that they amounted to a fresh claim).

The e-mail continued: "You have asked us to consider whether we will review the Office of the Children's Champion’s agreement with the court's decision to allow Mrs. N’s removal. Mrs. N is due to depart the UK this evening. Although we have faith in our justice system and no powers in which to overrule a judge, we are not in a position to review our support for the judge’s decision unless we have full access to the correspondence between UKBA and [the Claimant’s solicitors], and the independent social work report. We don't know if the independent social work report contains new material which has not been considered by the judge. [I infer that the judge referred to was Immigration Judge Freestone rather than any of the High Court Judges who had subsequently dealt with the matter]. For those reasons we cannot review our comments this evening. We are happy to conduct a review when full documentation is available to us. In our view the decision to proceed with or delay Mrs. N’s removal rests with your Regional Director. Should your RD need to speak to us Caroline Rowe is available by mobile phone this evening. [Her mobile number was then set out]”.

Mr. Smith in his witness statement said that on receipt of that e-mail he had to make a decision on how to proceed. He considered, following liaison with OSCU, that the removal should proceed as although the OCC had not reviewed their advice in the light of the new evidence, the OCC advice was not necessary in circumstances where the evidence had been seen, and removal had been approved, by the UKBA from senior executive officer to director (himself, George Menzies the Head of Unit (Assistant Director) for the DFT Team, David Jull, the Deputy Director and Emma Churchill, the Regional Director) and by the High Court in its order dated 9 November 2010 refusing the Claimant’s application for Interim relief. (I take that to be a reference to the decision of Treacy J. refusing an application for a stay).

Mr. Smith stated that the matter was discussed by numerous parties and after approval in an e-mail from Mr. Jull timed at 7.38pm removal was authorised to proceed. That e-mail was not before the court.

Mr. Smith stated that given that the Tribunal and the High Court had all upheld the UKBA decision to remove the Claimant he considered it appropriate and proportionate, pending approval from a UKBA senior manager, for the removal to proceed. That he said was given and accordingly removal proceeded on the evening of 10 November 2010.

In a witness statement Mr. Menzies stated that following advice from the OCC in relation to the Claimant’s removal, a submission to separate the Claimant from her family in the UK had been sent to Ms. Churchill, the Regional Director for the UKBA Department of “NAM+” and approved by her on 15 September 2010.

He said that Mr. Smith telephoned him on the evening of 10 November 2010 regarding the Claimant's removal and apprised him of the updated circumstances of the Claimant including the fact that her Article 8 rights had been considered and dismissed by the independent appellate authorities and that no barriers had been found to her removal. Mr. Smith also told him that on 9 November 2010 the High Court had held that there were no barriers to her removal and that further representations had been submitted including on behalf of her children requesting that the Claimant should not be removed.

Mr. Menzies stated that he then discussed the issues at length with his deputy director Mr. Jull. They considered what he described as the unusual circumstances of the issue at hand namely that the Claimant had apparently passed custody of her children to her sister according to her own statement at the time of her asylum application and that her sister had submitted applications for leave to remain in the United Kingdom on their behalf on the basis of their relationship with her. Mr. Menzies stated that in considering those representations he had due regard to the weight of evidence relating to the presence of the Claimant’s children in the United Kingdom and those unusual circumstances which had been explained in full to the OCC and then to Ms. Churchill to allow her to be in full possession of all the facts in considering the complex issues at hand.

Notwithstanding the further information that had been received, which had not been fully considered by OCC on the basis that there was insufficient time, Mr. Menzies said that he recommended to Mr. Jull that removal should proceed on the grounds that he considered that UKBA had discharged its obligation in relation to the welfare of the children with particular note being given to the passing of custody to the Claimant’s sister and the fact that the request for a stay had been rejected by the courts the day before with a statement made by Treacy J. with regard to the findings of the tribunal and the fact that the High Court had stated that the Secretary of State had "clearly" considered obligations under section 55 of the 2009 Act. As a result of discussions with Mr. Jull and on the basis of his recommendation to him, having considered all the available evidence he authorised Mr. Smith to allow removal to proceed as directed. He said that he considered that although the OCC had not had the opportunity to review the further evidence that had been presented, that added nothing substantive to the consideration that would outweigh the general handling of the issues within the application, that the issues had been fully considered by the High Court immediately prior to the proposed removal from the United Kingdom and that as a result there was no material evidence to indicate that removal was anything other than proportionate and lawful. As a result he said that removal proceeded as directed on the evening of 10 November 2010.

In a witness statement Mr. Christopher Moffitt said that he was a senior caseworker posted to OSCU, a unit of UKBA providing specialist case work support for dealing with legal representations, judicial review threats and applications made after removal directions have been set. The service he said is provided to all case working units within the UKBA.

Mr. Moffitt referred to submissions contained in letters from the Claimant’s solicitors dated 1, 4 and 10 November 2010, which challenged the decision to remove the Claimant and claimed that a number of documents, including a letter from the Children's Society, a report from a social worker, a letter of support from the Seventh Day Adventist Church and two letters from the children themselves that were submitted to the UKBA had not been presented to the OCC in line with UKBA published policy. The Claimant’s outstanding application to the Court of Appeal was also raised as a potential barrier to her proposed removal. Those representations were forwarded to his unit, OSCU for his consideration.

Having referred to OSCU’s response dated 8 November 2010, Mr. Moffitt said that on the morning of 10 November 2010 OSCU wrote again to the Claimant’s representatives advising them that the latest application for a stay had been refused by the High Court, Treacy J. certifying that the application was totally without merit and holding that his order would be no bar to removal.

Mr. Moffitt said that he reviewed the case at 5.06pm on 10 November 2010 and was satisfied that consideration had been given to the best interests of the children in the OSCU letter dated 8 November 2010. He noted that Mr. Smith had referred the case to the OCC on 17 August 2010 before setting removal directions and that the OCC had replied by e-mail on 14 September 2010 to advise that they had no objection to the proposed removal.

Having identified the issues relating to the Claimant’s children and what he described as all the relevant evidence, he said that he reviewed the case, noting the procedural history. He said that he was then contacted by Mr. Smith who advised him that the UKBA had again referred the case to the OCC who had advised that their original comments on the removal could not be reviewed before the scheduled removal directions. After speaking to Mr. Smith, Mr. Moffitt said that he was advised that authority had been obtained from a Deputy Director to remove the Claimant on the grounds that the children concerned did not reside with her and were in fact residing with an aunt who had previously been appointed their guardian with legal responsibility for them. In the light of the fact that the Claimant did not have custody of the children and was unable adequately to demonstrate that she had an established family life with them in the United Kingdom Mr. Moffitt said that he concluded that the proposal to remove would not be contrary to the Secretary of State’s obligation under the ECHR and was therefore lawful. He confirmed that he fully took into account the new evidence submitted on behalf of the Claimant including the report of the social worker and the letters from the children. He said that much of the new evidence was clearly intended to try to go behind the very recent findings of the tribunal which were made after a fully contested hearing at which the Claimant had been represented.

Mr. Moffitt said that the Claimant’s case was fully considered with regard to the Secretary of State’s responsibilities under section 55 of the 2009 Act and that he was satisfied that the UKBA had complied with the guidance published within Chapter 45 of the Enforcement Instruction Guidance.

Mr. Moffitt said that, while he was aware that the OCC were unable to provide further advice, he considered that this further information and evidence would not have altered the advice given by them on 14 September 2010 for the reasons he had given.

Given the extent of consideration already afforded to the Claimant’s human rights claim and the adverse findings reached by the First Tier Tribunal, the Upper Tribunal and the High Court Mr. Moffitt said that he was satisfied that the proposed removal was lawful and appropriate and that he considered that the outstanding application to the Court of Appeal should not constitute a bar to removal. At that stage he was not aware that the applications to the Court of Appeal had already been refused. He said that he therefore authorised the second OSCU letter dated 10 November 2010 advising the Claimant’s representatives that her outstanding application to the Court of Appeal was not a bar to her removal in response to their submissions dated 10 November 2010.

Having discussed the matter with Mark Griffiths, the Assistant Director of OSCU, Mr. Moffitt said that he then advised Mr. Smith that removal could proceed.

Following the removal of the Claimant on 10 November 2010 there was a series of e-mails within the OCC and between the OCC and Mr. Smith and Mr. Menzies in which Ms. Tatom and Ms. Rowe expressed serious concern that the OCC had been asked to express an opinion as to the effect of the Claimant’s removal on the children without being given an opportunity to consider the social worker’s report. On receipt of an e-mail from Mr. Smith which was copied to Ms. Rowe and Ms. Donovan, in which he apologised for the late notice given to the OCC the day before, Ms. Tatom sent an e-mail to Ms. Rowe and Ms. Donovan also dated 11 November 2010 asking if they thought that the OCC needed to take the matter forward and saying that she was a bit worried by the way Mr. Smith approached the whole case.

On 12 November 2010 Ms. Rowe replied to Mr. Smith's e-mail asking to know how and by whom "this decision" was made as well as how the letter dated 5 November had been dealt with. She said that she remained concerned that that letter, which addressed issues "which are entirely the remit of my team and which questioned specifically the assessment made by my team" was not sent to the OCC until late 10 November 2010 around four hours before the Claimant was due to fly. "Even then we were not sent all the accompanying documentation or given a clear indication of what had and had not already been seen by the court. We could not therefore judge whether any new issues were being raised which might call the removal into question – we were put into an impossible position. There seemed to be an assumption that the OCC would not as a matter of principle wish to reconsider our support for the removal once we had given it. But the removal of an individual from the UK is a serious matter, especially when it involves separating a mother from her children. If there was new material which might be relevant to such a decision, we would always wish to consider it. As I say, our concern in this case is that we were simply not in a position to judge this."

On 17 December 2010 Mr. Menzies replied to Ms. Rowe, Ms. Tatum and Ms. Donovan, saying that the removal and family split had been authorised by the Regional Director Ms. Churchill. He confirmed that on the evening of the Claimant's removal the matter had been discussed in some detail with Treasury Solicitors and the OSCU unit. He had then discussed it at length with his Deputy Director Mr. Jull. Having considered all the issues in the round he said that they had agreed that in the circumstances it would be appropriate to proceed with the removal as directed. The issues around the removal had also been considered by the High Court immediately prior to removal. He said that he entirely agreed that removal of a parent when there are children in the UK is a very serious matter and assured them that the issues around that removal were given the most detailed scrutiny by himself as a Grade 7 for DFT and Mr. Jull as Deputy Director.

On the same day Ms. Rowe responded to Mr. Menzies saying that she was reassured that the question of whether to remove the Claimant was given full consideration. However she said that she remained concerned and a little in the dark about what she described as the secondary issues relating to the involvement of her team in the matter. She said she still did not understand why they were brought into the matter so late when the letter of 5 November was so directly relevant to the OCC – it expressly questioned the competence of her team - and she did not know how it had been dealt with. This had implications for the ability of the team to do its job properly and for the OCC’s reputation externally and she would not wish to be put in that position again.

If there were further e-mails in that chain they were not before the court.

On 11 February 2011 at an oral hearing Supperstone J. granted permission to apply for judicial review and also to amend the grounds for relief. The day before the oral hearing the Treasury Solicitors sent the Claimant’s solicitors the OCC response to the Secretary of State’s referral of the Claimant's case to the OCC on 10 November 2010. I take that to be a reference to the e-mails to which I have referred and in particular to Ms. Tatom's e-mail timed at 5.05pm on 10 November 2010. Neither Ms. Carss-Frisk nor Mr. Drabble represented the parties at the oral renewal hearing on 11 February 2011. There was thus some initial uncertainty at the hearing in front of me as to whether the document headed Summary Emergency Grounds for Relief (grounds amended 15 February 2011) was a document for which permission had been granted by Supperstone J. On investigation it was agreed that this document was not before Supperstone J. It included a second ground for claiming judicial review, namely that the failure prior to the Claimant’s removal to provide the OCC with an adequate account of the recently accumulated submissions and evidence including in particular the Brown report, the second Galsworthy letter dated 5 November 2010 and the second letter from Professor Mokaya dated 4 November 2010 breached the section 55 duty and undermined the lawfulness of the removal carried out later that evening as a result of which the removal represented a breach of Article 8 as unlawful and/or disproportionate. The proposed amended grounds therefore in addition to contending that the decision to refuse to treat the Claimant’s further representation as a fresh claim was wrong in law also contended that the removal carried out on 10 November 2010 breached the Claimant’s Article 8 family life rights as unlawful or disproportionate.

It was however agreed that Mr. Fripp, the Claimant’s then counsel, referred Supperstone J. to the OCC e-mail dated 10 November 2010 to which I have referred.

In her determination and reasons Immigration Judge Freestone recorded that the Claimant, her sister Ms. K and her brother Mr. M N gave evidence at the hearing. The Claimant’s children were in attendance but were not going to be called to give evidence, although the judge recorded that she took into account witness statements which I was told included two statements from the Claimant’s children. She further recorded that at the beginning of the proceedings the Claimant’s representative said that the Claimant's medical condition was not known to the rest of the family and the immigration judge expressed her concern to the Claimant and her representative about the children's presence in the hearing room because the Secretary of State was disputing their parentage. In those circumstances she said that she considered it inappropriate for the children to be present during the oral evidence and submissions and that with the agreement of the Claimant and her representative the children waited outside the hearing room until the end of the appeal hearing.

The immigration judge recorded that in her claim the Claimant asserted that after the birth of her son she began to live with the father who physically abused her and made her work on his farm, eventually leaving her for another woman. She eventually lived with her mother and brother in her sister's house. After the birth of her daughter she said that her former partner came to the house armed with a knife and threatened her with serious injury.

After the death of her mother in 1999 the Claimant made arrangements for her two children to travel with her sister to the United Kingdom, her son travelling in 2001 and her daughter in 2002. The Claimant went to live with her aunt. The aunt died in June 2004. On 6 August 2004 the Claimant signed an affidavit giving her sister guardianship of her children. After her own arrival in the United Kingdom in November 2004 as a visitor, having eventually, on 9 May 2005, been granted leave to remain as a student until 31 October 2006, her attendance at college was poor and she did not attempt to renew her leave but remained illegally until she was arrested for working without permission.

The Claimant claimed to have lived with her sister until 29 December 2005 and then to have moved into her own accommodation with her two children.

The immigration judge recorded that as part of her case the Secretary of State did not accept that the two children were in fact the Claimant's biological children and submitted that no evidence had been provided that the Claimant was actually related to Ms. K or Mr. M N. It was not accepted that the Claimant had established a family life. There were a number of inconsistencies in the evidence of the living arrangements of the children in the United Kingdom and there was a lack of genuine family life for the purposes of Article 8.

The Claimant’s representative was recorded as having submitted that although Ms. K was the children's legal guardian there were strong ties between them and the Claimant.

The immigration judge rejected the Claimant's asylum claim, not accepting that her former partner had any further interest in her and thus not being satisfied that she would be at any real risk from him on return. Although she was satisfied that the Claimant was the victim of domestic violence from her partner her account of him still threatening her was vague and inconsistent.

Of relevance to the Article 8 claim the immigration judge recorded that the Claimant had said that after her mother died she became concerned with the safety of her children and agreed that her sister should have custody of them. Her sister said that when she visited in October 2000 she found that the Claimant had sent the children away to stay with her aunt where there were no medical facilities and that they had been so neglected that they needed hospital treatment and arrangements were made for the Claimant's daughter to travel to the United Kingdom in 2001. In the event arrangements were made for her son to travel to the United Kingdom first, the daughter not travelling until a year later. Had there been a concern about their safety the immigration judge said that she would have expected them to travel to the United Kingdom at the same time. She did not accept Ms. K’s evidence that the delay in sending the daughter was due to financial constraints and that it was easier to leave her with the Claimant’s aunt.

The immigration judge rejected the Claimant's Article 2 and 3 claims on the basis that she had failed to provide any credible evidence that she would not be able to receive free anti-retro viral therapy for her HIV virus if returned to Malawi.

In considering the Claimant’s Article 8 claim, the immigration judge cited the decision of the Court of Appeal in VW (Uganda) [2009] EWCA Civ 5 which held that the test of whether the appellant's family could relocate with him was not one of "insurmountable obstacles" but whether it was “reasonable” to expect the family to accompany the appellant to his country of origin. She did not return to this issue since it does not appear to have been suggested by anyone at the hearing that the possibility of the children re-locating to Malawi with the Claimant was a realistic let alone a reasonable option in the short term. She did say that the Claimant’s son could decide in just over a year and her daughter in four years whether they wish to return to Malawi to join their mother.

The immigration judge then said that in accordance with the cases of AF (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 240 and Beoku-Betts [2008] UKHL 39 they (sic) had considered the Article 8 rights of the Claimant's partner and the extended members of the family. She then cited the following dicta of Baroness Hale of Richmond at paragraph 4 of Beoku-Betts:

"I am in full agreement with the opinion of my noble and learned friend Lord Brown of Eaton-Under-Heywood and for the reasons he gives I too would allow this appeal and reinstate the adjudicator’s decision in the appellant's favour. To insist that an appeal to the Asylum Immigration Tribunal consider only the effect upon other family members as it affects the appellant, and that a judicial review brought by other family members considers only the effect upon the appellant as it affects them, is not only artificial and impracticable. It also risks missing the central point about family life, which is that the whole is greater than the sum of its individual parts. The right to respect for the family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or minor children with whom that family life is enjoyed."

Having as mentioned said that she was satisfied that the Claimant is the biological mother of K and T and the half-sister of Ms. K and the full sister of M N, the judge said that she was satisfied that the Claimant did have an element of family life with her children and a private life with her siblings, the issue to decide being one of proportionality.

She recorded that the Claimant did not have a partner in the United Kingdom and that her two children aged 14 and 16 had been in the United Kingdom for at least eight years. She said that there was evidence before her in the form of a letter dated 23 December 2004 that the Claimant had abandoned the children a few months after the birth of T although in her oral evidence Ms. K said that must have been a mistake in the translation of the word. However she also said that there was evidence in the form of a statement from Ms. K that the Claimant had been neglecting the children and as a result she arranged for them to come to the United Kingdom in 2001 (K) and 2002 (T). There was also evidence in the form of an affidavit that the Claimant had given guardianship of both children to her sister on the 6 August 2004. That was accepted by the Claimant's representative in his closing submissions.

The immigration judge found that the Claimant's half-sister and brother appear to have encouraged the Claimant's two children to believe that their mother had a right to remain in the United Kingdom and that she would not be required to return to Malawi. She recorded that the Claimant said that before she was detained her children were living with her. There was conflicting evidence from Ms. K who said in her initial statement that the children had been living with the Claimant since December 2005. That she said was inconsistent with the application made by Ms. K on 15 July 2010 for the children to be allowed settlement in the United Kingdom as her dependents and the bank statements of the children and other documents of the children which indicated that they were resident at the address of Mrs. K.

The immigration judge recorded that in her oral evidence Mrs. K said that when the Claimant moved into independent accommodation in 2005 she encouraged the children to live with the Claimant on a 50/50 basis. However she found that it was clear from the latest application made by Ms. K for settlement for the two children that she regarded herself as the main carer. Looking at that application and the documents provided with it which included bank statements in the name of the children, the immigration judge said she was satisfied that their main residence was with Mrs. K although she accepted that they were encouraged to stay with the Claimant “on occasions”. The bank statements showed regular transfers by Ms. K into the children's account and that she found was further evidence that Ms. K was supporting them financially.

The immigration judge said that it was clear from the asylum interview that the Claimant had little knowledge of the children's education and did not know the details of their GP. Looking at the totality of the evidence before her as outlined above she said she was satisfied that the Claimant had failed to establish that her children had been permanently living with her in the United Kingdom. She was satisfied that they were still living with Ms. K who was carrying out all the parental responsibilities including maintaining and accommodating them and making the major decisions about their education and health.

The judge then identified the following question as being the one she had to answer: "Whilst I accept that there will always be a family life between a mother and her children the question is whether the strength of that family life is sufficient to outweigh the interference caused by removing the appellant in the public interest of immigration control.” She said that the evidence before her was that the Claimant had shown little interest in the children. In Malawi she had either abandoned them or neglected them. In 2004 she signed an affidavit of guardianship stating that she had “freely and voluntarily” given the custody of the said children both “de jure and de facto” to her sister until "they are of age". She found that the Claimant came to the United Kingdom and lived with her children and her sister for about a year. She then moved out and the children remained behind with Ms. K. The Claimant had shown little interest in their health or education. Ms. K had made all the major decisions in their lives. In those circumstances she was satisfied that if the Claimant were removed to Malawi “there would be much less disruption to the family life between the appellant and her children than if they were living together as a functioning family unit." They would be able to make contact through modern forms of communication and in just over a year her son would be in a position to decide whether he wished to return to Malawi to join his mother. Her daughter would be in a similar position in four years. In the circumstances she was satisfied that the Claimant’s removal would not breach her Article 8 rights in relation to her children. She added that for the same reasons and after considering the opinions in Beoku-Betts she was satisfied that the Claimant’s removal would not breach the Article 8 rights of the children.

The immigration judge accepted that the Claimant had a close relationship with Ms. K and Mr. N and that Ms. K had been providing her with financial assistance on various occasions since she came to the United Kingdom. She accepted that her relationship with them formed part of her private life in the United Kingdom which had been built up over the last six years. However for four of those years she did not have leave to remain and she worked illegally and had failed to provide any evidence of a close network of friends. Both Ms. K and Mr. N accepted that they would not stop helping her financially if she were returned to Malawi although it would be very hard. The Claimant also had a number of family members including a brother in Malawi who she was satisfied could offer emotional support. The immigration judge concluded that she was satisfied that the Claimant's personal circumstances did not outweigh the public interest in immigration control.

The Claimant’s initial challenge was to the legality of the decisions of the Secretary of State in her letters dated 22 September, 21 October and 8 November 2010 to refuse to accept further representations served on her behalf as constituting a fresh Human Rights claim (which would have given her a right of appeal) under paragraph 353 of the Immigration Rules as amended. There was broad agreement between the parties as to the correct approach to be adopted by this court when considering the validity of such a challenge.

Paragraph 353 of the Immigration Rules HC 395 (as amended by HC 1112) provides:

“When a Human Rights or Asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material which has previously been considered. The submissions will only be significantly different if the content:

i.

had not already been considered; and

ii.

taken together with the previously considered material, created a realistic prospect of success notwithstanding its rejection.”

In the well known case of WM [2007] Imm AR 337 Buxton LJ held that the judgment as to whether new material, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim will involve not only judging the reliability of the new material but also judging the outcome of tribunal proceedings based on that material. He held that the rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. “First the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second... the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third and importantly since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant’s exposure to persecution”(paragraph 7).

In R (on the application of TK) v Secretary of State for the Home Department [2010] EWCA Civ 1550 the Court of Appeal confirmed that the effect of the reasoning in WM was that the Wednesbury approach tempered by anxious scrutiny is the right approach to the court’s supervisory role. In MN (Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ 193 Maurice Kay LJ, in a judgment with which the other members of the court agreed, having reviewed the authorities following WM held that the court is bound to continue to apply the WM test. That is to say a challenge to a refusal by the Secretary of State to treat rejected further submissions as a fresh claim is limited to Wednesbury grounds (see Associated Provincial PictureHouses Limited v Wednesbury Corp [1947] 2 All ER 680, [1948] 1KB 223) albeit on the basis of anxious scrutiny and the judge in the Administrative Court is not entitled or required to reach his own decision on whether the further submissions amount to a fresh claim, in particular whether they satisfy the “reasonable prospect of success” test. (See paras 3-6, 13-16).

In the course of oral argument I raised the question whether it was the Secretary of State’s contention that the fact, if it be established, that new material relied on was available or could reasonably have been available at the time of the first decision acts or should act as some kind of bar or obstacle in the path of a submission that the further evidence constitutes a fresh claim. Ms. Carss-Frisk’s response, having taken instructions, was that the Secretary of State’s position is that that would be just a factor to take into account in considering whether, taken together with the previously considered material, the new material created a realistic prospect of success, rather than being an absolute bar. She submitted that it could be argued that there is a stricter test but told me that the Secretary of State would not seek to persuade me to reach the view that there is a stricter test. As I understood it that was because a stricter test would be inconsistent with an internal Home Office Asylum Instruction which sets out the policy processes and procedures to be followed by officials when considering further submissions. That document stated: “Materials should never be discounted entirely on the basis that the applicant could or should have raised it earlier. However, in assessing whether there is a realistic prospect of success, case owners may treat material with circumspection if it is raised late and could have been raised sooner.” Although, in light of the Secretary of State’s concession, the matter does not fall to be decided by me, in my judgment the concession was rightly made. There is no express language in paragraph 353 making it a condition for finding that submissions are significantly different that their content or the content of new material relied on was not reasonably available at the time of the first decision. In that respect there is a marked, and it is to be inferred, deliberate change from the language in paragraph 346, which preceded paragraph 353. Paragraph 346 provided that in considering whether to treat representations as a fresh claim the Secretary of State would disregard any material which was available to the applicant at the time when the previous application was refused or any appeal was determined.

There may of course be many circumstances where a finding by the Secretary of State that material relied on as supporting a fresh claim was available or reasonably available at the time of the first decision may reasonably justify a conclusion that its contents are not credible or reliable because if true one would have expected the material to be deployed first time round. By contrast there may be circumstances in which the credibility of new material is not affected by the fact that it could reasonably have been deployed on the previous occasion. As Buxton LJ said in WM: “....the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance, when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source.”(Paragraph 6).

A similar point was made by Collins J in R(on the application of Asif Naseer) v Secretary of State for the Home Department [2006] EWHC 1671 Admin : “ It is obviously right that the Secretary of State, in considering the evidence that is produced, should be able to form a view as to its reliability and the starting point in a case such as this, where there has been a rejection by the appellate authorities of a claimant’s account that he has been disbelieved, is the decision of the AIT. That by itself will not mean that anything that he thereafter states or puts forward must equally be disbelieved, but it is proper for the Secretary of State to take that into account in assessing whether the fresh material is indeed such as will provide a realistic prospect of success.”(Paragraph 22).

By letter dated 17 September 2010 the Claimant's solicitors made further submissions to the Secretary of State which were said to constitute a fresh claim. Of relevance for present purposes was a submission that the Secretary of State had failed to consider the Claimant's and her children's circumstances and to give regard to the duty imposed under section 55 of the 2009 Act with respect to safeguarding and promoting the welfare of children. It was submitted that it cannot be said to be in the interest of children to be parted from their mother and that of the 2009 Act was not considered by the Tribunal at the time of the Claimant's appeal hearing.

By letter dated 22 September 2010 the UKBA on behalf of the Secretary of State responded by stating that the Claimant's children were living with their aunt. The Immigration Judge had found that the Claimant had showed little or no interest in their health or education and her sister had made all the major decisions in their lives. In those circumstances the judge had been satisfied that if the Claimant were removed to Malawi there would be much less disruption to the family life between the Claimant and her children. This was in fact an incomplete description of the immigration judge’s finding which added the words “than if they were living together as a functioning family unit.” Accordingly it was stated that the UKBA were satisfied that the Claimant's circumstances did not engage the duty imposed under Section 55 of the 2009 Act with respect to the safeguarding and promoting the welfare of children. It was said that all the points raised in the letter dated 17 September 2010 had been considered when the earlier claim was determined and responded to in a letter giving reasons for refusal and the appeal determination. Accordingly it had been determined that the submissions did not amount to a fresh claim.

In a letter dated 1 October 2010 the Claimant’s solicitors asked for confirmation from the Secretary of State that the Claimant’s son had been found at her accommodation when it was searched on the day of arrest and that she was satisfied that regular physical contact had been taking place between the Claimant and her children. They also notified the Secretary State that they were commissioning an independent social worker’s report. That report, prepared by Christine Brown and dated 11 October 2010, was sent to the Treasury Solicitors by the Claimant’s solicitors under cover of a letter dated 14 October 2010. In a further letter dated 20 October 2010 the Claimant’s solicitors confirmed that they were inviting the Secretary of State to review her decision in the light of that report and other evidence which is not relevant for present purposes. The report was said to further support the Claimant's circumstances under Article 8 and Section 55 of the 2009 Act and its relevant guidance.

Ms. Brown in her report said that she has been a qualified social worker since 1986 employed by authorities in Trafford, Tameside and Manchester. Her experience is primarily in the field of child care. She has sat as a member of Manchester Fostering and Adoption panel in 1990/1991. Since 2003 she has concentrated more fully on independent work focusing solely on matters of asylum and immigration.

In her report Ms Brown said that she had met Ms. K and the Claimant’s two children for two sessions over a three hour period on 4 October 2010 and interviewed the Claimant by video link at Yarl’s Wood Detention Centre on the same day for about 50 minutes. She had read the Determination by Immigration Judge Freestone and a letter of instruction from the Claimant’s solicitors. The report was some 20 pages long. I draw attention to the following extracts from the report:

By a letter dated 21 October 2010 the UKBA notified the Claimant’s solicitors that the most recent representations had been rejected and that the Claimant's human rights claims had been considered on all the evidence available including that previously considered but that it had been decided that the further submissions were not significantly different from material previously considered and therefore did not amount to a fresh human rights claim. In the accompanying Consideration of Submissions document the rejection of the fresh claim was explained as follows: “The new submissions taken together with the previously considered material do not create a realistic prospect of success, namely that an immigration judge applying anxious scrutiny would decide that [the Claimant] ought to be granted asylum, humanitarian protection or discretionary leave for the reasons above and in light of WM…”

In the latter document it was said that consideration had been given to the Brown report notwithstanding that it was considered that she was not an expert witness in the case. It was noted that Ms. Brown was not asked to address the fact that the Claimant's sister had legally attained guardianship for the children and that the Immigration Judge at no time stated that the legal guardian was the sole carer but rather the primary carer. It was therefore said that it was considered that the question Ms Brown was asked to consider, namely whether in her view it would be in the children's interest and welfare to be separated from their mother, had been made without Ms Brown either being fully aware of or choosing not to make reference to the legal guardianship of the children and that such legal guardian had been the primary carer of the children in the United Kingdom.

It was further stated that the Claimant's Article 8 rights had been fully considered by the Secretary of State’s representative and an immigration judge and that the determination of the latter had also been upheld by a judge of the First Tier, a judge of the Upper Tier and on her application for judicial review on which permission had been refused on which occasion the Claimant's Article 8 claims had been fully considered and found to be totally without merit. “Therefore” it was said that the Brown report did not make any material difference to the Claimant's claim and would not meet the test of realistic prospect of success.

In addition it was noted that the Claimant’s solicitors had raised concerns about the fact that the Claimant's children had been removed from court on the day of the appeal hearing in front of Immigration Judge Freestone. However it was said that that request to spare the children from listening to information about their mother’s condition had been made by a representative from the Crystal Advice Centre acting on behalf of the Claimant and not by the UKBA and that the request had been granted by the Immigration Judge and recorded in paragraph 8 of her Determination.

I have already referred to the contents of the Brown report which was considered by the UKBA in their letter dated 21 October 2010 and the letter dated 23 August 2010 from Professor Mokaya which was one of the documents considered by the UKBA and referred to in the letter dated 8 November 2010 to the Claimant’s solicitors. It is necessary now to refer to the contents of the other documents enclosed with the Claimant’s solicitors’ letters dated 5 November 2010 and 7 November 2010 and considered by UKBA in its letter dated 8 November 2010.

As already mentioned there were two letters dated 11 August 2010 from the Claimant's children which formed part of the evidence considered by Immigration Judge Freestone, although as also already mentioned she did not hear oral testimony from them at the appeal. Both were addressed to “To whom it may concern”. T, the daughter, said that she was writing to say how angry upset and traumatised she was about her mum being taken away from her. She referred to the Claimant as her only role model who she looked up to so much. Now that she had been taken away from her she was living with her aunty which was not the same as living with your own mother. She felt more free with her because she had a bond. She felt like a part of her was missing and she wanted her back. She said that every night she was about to sleep she lay awake crying because she could hardly sleep because she liked the feeling of her mum being close to her. She felt as if someone had ripped out her heart and it would never be whole again until they were reunited.

The letter from K, the Claimant's son, said that he was grateful when his aunt and uncle arranged for his mother to join them in November 2004. He said that his mum tried to make up for the years they lost living together and managed to make a fine man out of him. She taught him how to be a real man and a gentleman and how to respect women and to treat everyone equally. No matter how hard anyone tried no woman could replace his mother. If she was sent back it would destroy everything he lived for. All she did was work hard in order to provide for her two children. He never realised her unconditional love until it was gone. No amount of words could express how strong the love of any mother is. “I am begging you to look into your hearts to let her stay here and let her take care of me and my sister. Without her me and my sister are lost.” He said that when they had no money his mother went out and worked more hours for less just to get the little she could get just so they could have food in the house and keep a roof over their heads. There was never a night when he and his sister were hungry even if it meant their mother going without food. He said that he and his sister were afraid of going to Malawi because of what he had heard about his father.

In her two letters dated 21 October and 5 November 2010, a copy of the first of which was enclosed with the Claimant’s solicitors’ letter dated 5 November 2010 and a copy of the second of which was enclosed with the Claimant’s solicitors’ letter dated 5 November 2010, Ms. Galsworthy, a project worker with the Children's Society, a qualified teacher and children's advocate, said that she had been working with the family since the beginning of August 2010. The first letter, which was written in support of a bail application in relation to the question of the impact on the children of being separated from their mother, was not based on any direct contact with the children. It was based on several telephone conversations and one visit to the Claimant in Yarl’s Wood and conversations with Ms K.

In the 21 October 2010 letter Ms. Galsworthy said that she had the impression that since the Claimant had been reunited with her children they had become a closely bonded family with both the Claimant and Ms. K playing key parental roles. She said that she understood from the Claimant that the children normally lived with her on weekdays but spent the weekends with Ms. K who assisted with care because of the Claimant's work. The Claimant told her that that arrangement had been in place since 2005 when she and her children had moved out of Ms K's house into private rented accommodation with the Claimant becoming the children's main carer. The Claimant had told her that the children had visited her in Yarl’s Wood on four occasions and that she had regular telephone contact with them and that they had written letters to her. The Claimant's son had sent her pocket money from money he had earned from a temporary work placement. She recorded Ms K as having told her that the Claimant’s daughter in particular had a very strong bond with her mother and she Ms K could never be a replacement for her. She said that both children had high levels of anxiety having had their mother taken away from them. She felt both children were very dependent on their mother for her nurturing and support for them. For example the Claimant was very competent at mathematics and often gave the children extra tuition in that subject.

Ms. Galsworthy recorded Ms. K as having noticed a change in the children's behaviour which broke her heart since the Claimant’s detention. T had become very withdrawn, had lost quite a bit of weight and seemed to sleep a great deal. K was experiencing disturbed sleep and kept dreaming that his mother was coming home then woke up upset when he realised that she wasn't really. She thought he needed counselling.

Ms .Galsworthy had been in contact with the children's teachers at Nottingham Emmanuel School. The school told her that K’s attendance records had been unusually low and a potential cause for concern that term. The head of year for T had informed Ms. Galsworthy that he was very concerned about T as he felt that she was finding things very difficult in her home life. He felt that the Claimant’s detention was causing obvious unhappiness. T had approached him to ask for counselling as she said that she had a lot of issues she worried about which she could not deal with on her own. There had been an incident out of character in which T had behaved in an unpleasant way to other students and during the reconciliation process it emerged that her behaviour was connected with things going on in her home life. Her head of year expressed to Ms. Galsworthy that he was very concerned about the emotional impact of her mother's detention and felt that it was likely to have an impact on her academic progress during the important year in which she was commencing her GCSEs. The school was planning to refer herto a counsellor. Ms. Galsworthy’s conclusion was that from her conversation with those involved it seemed to her that all the family members but especially the children were suffering from the Claimant’s detention and that her children clearly had a very strong bond with their mother and were struggling in her absence.

In her letter dated 5 November 2010 Ms Galsworthy again voiced her concerns about the separation of the children from the Claimant and the impact it was having on their wellbeing. This letter was based on a visit to Ms. K’s home where Ms. Galsworthy spoke to both children. She recorded in the children's own words the way they said they were feeling currently about being separated from their mother. K said: “This is such a sad place to be. It is very stressful and sometimes I feel just like giving up. I can't concentrate on my school work; I will be in a lesson but my mind is somewhere else. I just keep thinking ‘what's the point?’ Sometimes I get so angry and upset. Sometimes I find myself lashing out at aunty for no reason. I can't get used to not being with mum. We can't speak to mum for more than a few minutes at a time on the phone and so we can't really talk properly or find out how she really is ... I can't talk to [T] like mum can. I just want to be back with mum again as a family. In the past when things have gone wrong I had taken weed to try and escape from my problem. I am seriously worried that I might go down the wrong path again and try and find other ways of coping like taking weed to block it all out.”

T was recorded as having said: “I just cannot stop worrying about what's going to happen. If mum is sent back how are we supposed to keep in touch? The phone is just not the same. She has nowhere to stay. If mum is sick who is going to look after her? When you are living with someone and are with them you can tell if they are okay but on the phone they can just be pretending. With mum I could always talk to her about my emotions. I don’t talk to anyone now. I just bottle it all up ... No one is listening to us. It feels like the courts don't care about what we want. ... I just pray now. We just want our mum back.”

Ms. Galsworthy's impression when she met the children was that they were struggling to cope with the difficult and painful situation which they faced. They each clearly had a very close relationship with their mother and were reliant on her and did not understand why she was being taken away from them. They were particularly worried that she would not be able to communicate adequately with them if at all and that they would not be in her life at a time when she is ill. They had real fears that they may never see her again. She requested that the circumstances of the family be viewed with compassion and specifically asked that the current and future well-being of the two children should be fully taken into consideration when decisions were being made about whether to separate them long term from their mother in line with Section 55 of the 2009 Act and the UN Convention on the Rights of a Child.

The second letter from Professor Mokaya dated 4 November 2010 enclosed with the Claimant’s solicitors’ letter dated 7 November 2010 stated that for all the time he had known the Claimant since early 2005 he had observed her to be a caring mother who was very close to her children. She always attended church with her children who sat next to her. The children seemed to thrive under the care of their mother. The children had fully participated in church activities in particular singing with encouragement from their mother. He repeated that the family was very well integrated into the local community. The final document enclosed with the Claimant’s solicitors’ letter dated 7 November 2010 was a letter from Mr. N. Gibson the assistant head teacher at the Nottingham Emmanuel School in which he confirmed that in his capacity as the year 11 achievement and pastoral manager he had met both the Claimant and the Guardian of K to discuss a matter regarding K's progress on 23 April 2010.

I have set out in some considerable detail extracts from the material relied on by the Claimant as constituting a fresh claim such as would give rise to a realistic prospect of success on an appeal before an immigration judge. I have done so because it is by reference to that material that I have reached the very clear conclusion that the decisions taken on behalf of the Secretary of State that the Claimant’s representations supported by this material did not constitute a fresh claim and would not create a realistic prospect of a successful appeal do not withstand the Wednesbury challenge to which they have been subjected. I start, of course, from the premise that in considering whether the representations and material amounted to a fresh claim the decision takers were entitled and indeed bound to start from and take into consideration the findings of Immigration Judge Freestone. To the extent that she rejected certain parts (but not all) of the evidence of the Claimant and Ms. K, her findings justified the decision takers in approaching evidence which purported to corroborate or support the evidence which she rejected with a particularly sceptical scrutiny. That is in my view particularly the case as regards the evidence emanating from the Claimant and Ms K, as is the case with large parts of the letters from Ms Galsworthy and the report from Ms Brown which were based on accounts of the family background and living arrangements provided to them by the Claimant and Ms K. Where new evidence from witnesses whose oral testimony has been in part rejected could reasonably have been given at the appeal, it naturally gives rise to the question whether it has been tailored to plug gaps or meet criticisms identified in the decision of the immigration judge.

In practice, in my view, there may be considerably less inconsistency between some of the new material emanating from the Claimant and Ms K and the findings of Immigration Judge Freestone than might appear at first blush. Judge Freestone accepted the Claimant’s evidence that she is the biological mother of K and T and that she has an element of family life with her children. She found that the Claimant’s brother and sister encouraged the Claimant’s children to believe that their mother had a right to remain in the UK and that she would not be required to return to Malawi, which may go some way to explaining the traumatic effect which the children have said that the Claimant’s detention and proposed removal to Malawi has had on them. Although Judge Freestone was satisfied that the children’s main residence was with Ms K she also accepted that they were encouraged to stay with the Claimant on what she described as “occasions”. Her rejection of the evidence of Ms K, that when the Claimant moved into independent accommodation in 2005 she encouraged the children to live with the Claimant on a 50/50 basis, the evidence of the Claimant that before she was detained her children were living with her and Ms K’s evidence in her initial statement that the children had been living with the Claimant since December 2005 appears to have been on the basis that she found it inconsistent with the application made by Ms K on 15 July 2010 for the children to be allowed settlement in the UK as her dependants, the existence of bank statements of the children and other documents indicating they were resident at the address of Ms K and the fact that regular transfers by Ms K into the children’s accounts demonstrated that she was supporting them financially. On that basis Judge Freestone found that the Claimant had failed to establish that the children had been living permanently with her in the UK and that Ms K had been carrying out all the parental responsibilities. The thrust of the evidence in the new material was broadly to the effect that there came a point when the Claimant moved to accommodation near to that of her sister and the children divided their time between staying with the Claimant and staying with Ms K and that at the time of the application for the children to be allowed settlement in the UK in July 2010 the Claimant was in detention in Yarl’s Wood. The picture painted by the Claimant and Ms K, supported by the children, in Ms Brown’s report was that both the Claimant and Ms K continued to provide joint care for the children, the children staying with their mother during the week and with their aunt at weekends. The new evidence in so far as it emanates from the Claimant and Ms K is in some respects not so much inconsistent with the findings made by the immigration judge as emphasising a greater degree of contact between the Claimant and the children and involvement by her in their lives and a larger element of family life which the Claimant had with them than she found existed. Nonetheless it is undoubtedly the case that parts of the accounts given to Ms Brown and Ms Galsworthy by the Claimant and Ms K were to similar effect to evidence which had not been accepted by Judge Freestone.

However of critical importance, in my view, is the fact that the new material included powerful evidence of the close ties felt to the Claimant by both children and the deep upset felt by them at the fact and prospect of being separated from their mother. Those sentiments had already been expressed in the two letters dated 11 August 2010 which were before Judge Freestone and she did not find that they were other than genuine expressions of what the children actually felt in relation to the Claimant. Nor did she state that she rejected the evidence contained in their letters. Indeed a striking omission in Judge Freestone’s determination is any comment on the contents of the letters from the children which were before her still less any findings as to their clearly and strongly expressed views and feelings. Moreover even if she had stated that she rejected the evidence contained in their letters, she did not have the benefit of seeing or hearing the children and forming a view as to their reliability based on their demeanour, as did Ms Brown and Ms Galsworthy and as would an immigration judge if they gave evidence at an oral hearing on an appeal against the rejection of the further representations.

There is in my view significantly less scope for concluding that the views which the children expressed to Ms Brown and Ms Galsworthy were tailored to plugging gaps in the evidence given at the first appeal or to meeting weaknesses in that evidence identified by Judge Freestone and for that reason unlikely to be believed at a second appeal than might be the case with the statements attributed to the Claimant and Ms K by Ms Brown and Ms Galsworthy.

The authenticity and genuineness of the views expressed by the children was in any event further supported in the new material by independent evidence from two professional people, Ms. Brown and Ms. Galsworthy, both of whom spoke at length with the children and plainly reached two independent conclusions both that the children had a very strong relationship with their mother which was causing considerable upset by reason of the separation and the prospect of her removal to Malawi and that in expressing their views the children were telling the truth. Further independent support for the evidence of the Claimant and Ms K that the Claimant was more involved in the lives of the children than was found by the immigration judge is to be found in Mr Gibson’s statement in his letter that the Claimant and Ms K met him together to discuss a matter regarding K’s progress as recently as 23 April 2010. That evidence is on its face at odds with Judge Freestone’s conclusion, which was based on an answer in the Claimant’s asylum interview, that she had little knowledge of the children’s education. There is in my view no rational basis on which it could be concluded that there is no realistic prospect of that evidence being accepted as truthful on a further appeal. Similarly, although Professor Mokaya’s first letter dated 23 August 2010, which described the Claimant and her children as a well settled and integrated family, was before Judge Freestone, his letter dated 4 November 2010 went somewhat further. In that letter he said that for all the time he had known the Claimant since early 2005 he had observed her to be a caring mother who is very close to her children. She always attended church with them and sat next to them. They seemed to thrive under her care. Again no reason has been identified as to why there is no realistic prospect of Professor Mokaya’s evidence being accepted on a further appeal.

I do not consider that a reasonable decision taker considering this new evidence, and in particular the independent evidence, together with the evidence considered by Judge Freestone could fail to conclude that there is a realistic prospect that on a second appeal an immigration judge might accept it as truthful and reliable evidence. It all points broadly in the same direction. It is suggestive of a greater degree of involvement by the Claimant in the lives of the children than was found by Judge Freestone and making all allowances for the fact that some if not all of this evidence might have been obtainable before the first appeal it does not strike me as being of such a character as could reasonably be ignored or discounted on the basis that for that reason it is unlikely to be true. As for Ms Brown, Ms Galsworthy, Mr Gibson and Professor Mokaya they are all independent witnesses. As for the children the views expressed by them as recorded by Ms Brown and Ms Galsworthy are to the same effect as those contained in their statements dated 11 August 2010 which were before Judge Freestone and there is no suggestion in the papers that a deliberate tactical decision was taken not to expose them to cross-examination at the appeal. Their statements had been submitted and they were present at the hearing. As already mentioned a striking omission in Judge Freestone’s determination is any comment on the contents of the letters from the children which were before her still less any findings as to their clearly and strongly expressed views and feelings. In any event both Ms Galsworthy and Ms Brown speak to the genuineness of the views expressed by the children.

In addition to supporting the version of events advanced by the Claimant and Ms K at the appeal, the new evidence paints a very powerful picture in my view of two children who have very strong emotional ties with the Claimant and who have been very adversely affected emotionally and psychologically by both the fact of being separated from their mother and the prospect of that separation continuing on her removal to Malawi.

What matters for present purposes, of course, is not what view I take of the new representations advanced and material relied on by the Claimant but whether the approach to and view of it taken by the decision takers in the UKBA failed to satisfy the Wednesbury requirements as spelled out in the current context by the Court of Appeal in WM and MN (Tanzania). In my judgment it did.

Given in particular that Judge Freestone did not have any opportunity of forming an impression of the children, I can see no rational basis on which it could sensibly be concluded that there is no realistic prospect that the evidence both of the children as recorded in the letters from Ms Brown and Ms Galsworthy and of Ms Brown and Ms Galsworthy themselves as well as that of Mr Gibson and Professor Mokaya would be accepted by another judge. If that is right it seems to me to follow inevitably that there is no rational basis upon which it could be safely concluded that a judge on an appeal might not conclude that the best interests of the children lay in the Claimant being allowed to remain in this country and that those interests were not outweighed by the cumulative effect of other considerations including in particular the legitimate interests of the need to maintain firm and fair immigration control or that there is no realistic prospect of a successful outcome on a fresh appeal. Faced with oral testimony from the children and the new evidence of the other witnesses I do not consider that it could reasonably be concluded that there is no prospect that an immigration judge might take a different view from that taken by Judge Freestone of the evidence of the Claimant and Ms K as to the background of the living arrangements and the nature and extent of the Claimant’s involvement in the lives of the children. However even if I were wrong about that I still consider that there is no rational basis upon which it could be safely concluded that a judge on an appeal might not conclude that removal of the Claimant to Malawi would breach the Article 8 rights to a family life of the children, that the best interests of the children lay in the Claimant being allowed to remain in this country and that those interests were not outweighed by the cumulative effect of other considerations including in particular the legitimate interests of the need to maintain firm and fair immigration control or that there is no realistic prospect of a successful outcome on a fresh appeal. That is because in my view the evidence of the adverse impact on the children of the Claimant being removed to Malawi is not dependent on, even though it is of course supported by, the evidence of the Claimant and Ms K.

It is appropriate at this stage to refer to an issue which arose in argument as to the effect on the claim for judicial review of the decision of the Supreme Court in ZH (Tanzania) v SSHD [2011] UKSC4, [2011] 2 WLR 148. By chance the hearing of the appeal in that case took place on 9 and 10 November 2010, just after the last of the UKBA letters declining to treat the Claimant’s representations as a fresh claim, and judgment was handed down on 1 February 2011. Its contents were thus unknown both to Judge Freestone when she heard the Claimant’s appeal and wrote her determination and to the decision takers in the UKBA when they rejected the Claimant’s further representations in September, October and November 2010 and decided that they did not constitute a fresh claim.

The head note in ZH (Tanzania) states that it was held that international law placed a binding obligation on public bodies, including the immigration authorities and the Secretary of State, to discharge their functions having regard to the need to safeguard and promote the welfare of children; that the obligation applied not only to how children were looked after in the United Kingdom but also to decisions made about asylum, deportation and removal from the United Kingdom; that any such decision that was taken without having regard to the need to safeguard and promote the welfare of any child involved would not be “in accordance with law” for the purposes of article 8.2 of the Convention and that in all decisions directly or indirectly affecting a child’s upbringing national authorities were required to treat the best interests of the child as a primary consideration, by first identifying what the best interests of the child required and then assessing whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the child’s best interests. (148 F-G).

In her judgment , with which Lords Brown of Eaton-Under-Heywood, Mance and Hope JJSC agreed, Baroness Hale of Richmond JSC referred to the obligation on the United Kingdom contained in article 3.1 of the United Nations Declaration on the Rights of the Child (“UNCRC”) : “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”. She described this as a binding obligation in international law whose spirit, if not the precise language, has also been translated into our national law. One consequence is that section 55 of the 2009 Act now provides that in relation among other things to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions “are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”. She recorded that Ms Carss-Frisk on behalf of the Secretary of State acknowledged that this duty applies to decisions about immigration, asylum deportation or removal. She said this means that any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be “in accordance with the law” for the purpose of article 8.2. “Both the Secretary of State and the tribunal will therefore have to address this in their decisions.” (Paragraphs 23, 24)

Lady Hale held that it is clear from the recent jurisprudence that the Strasbourg court will expect national authorities to apply article 3.1 of UNCRC and treat the best interests of a child as “a primary consideration”. She cited with approval the statement by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273,292 in the High Court of Australia that: “a decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it” (paragraph 26). She also approved the statement of the Federal Court of Australia in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, Para 32:

“[The Tribunal] was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”.

Lady Hale held that that did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. “Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first.” (Paragraph 26). She held that in the context of assessing proportionality under article 8.2 the “best interests of the child” broadly means the well-being of the child. Lady Hale elaborated on what is involved in identifying the well-being of the child but in considering her remarks it is necessary to bear in mind that the context in which the question arose in that case was whether the best interests of the children would be adversely affected to the point of breaching their article 8 rights if as an incidental consequence of the removal of their mother they were required to live in another country. “As the United Nations High Commission for Refugees says, it broadly means the well-being of the child. Specifically, as Lord Bingham indicated in EB (Kosovo) [2009] AC 1159, “it will involve asking whether it is reasonable to expect the child to live in another country. Relevant to this will be the level of the child’s integration in this country and the length of absence from the other countries; where and with whom the child is to live and the arrangements for looking after the child in the other country; and the strength of the child’s relationships with parents or other family members which will be severed if the child has to move away”. (Paragraph 29).

It is in my judgment clear that the equation by the Supreme Court of the best interests of the child with the well-being of the child was not intended to be confined in its application to cases where the question is whether and to what extent the best interests of the child would be adversely affected by the child being in effect required to live in another country, but also to extend to cases where the question is whether and to what extent the best interests of the child would be adversely affected by the removal of a parent in circumstances where the consequence would be that the child became separated from the parent. That in my view follows from the introductory remarks of Lady Hale:

“The over-arching issue in this case is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from this country. Within this, however, is a much more specific question: in what circumstances is it permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave?” (Paragraph 1).

While the issue identified in the second sentence, which arose in that case, was of a narrow compass, the issue identified in the first sentence was in my view plainly intended to be of general application.

Of particular relevance in the context of this case were remarks made by Lady Hale as to the importance of discovering the child’s own views:

“Acknowledging that the best interests of the child must be a primary consideration in these cases immediately raises the question of how these are to be discovered. An important part of this is discovering the child’s own views. Article 12 of UNCRC provides:

1.

“States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. (Paragraph 34).”

Lady Hale quoted from her speech in EM (Lebanon) v The Secretary of State for the Home Department (AF) (A Child) intervening [2009] AC 1198 Para 49:

“… it cannot be assumed that the interests of all the family members are identical. In particular, a child is not to be held responsible for the moral failure of either of his parents. Sometimes further information may be required. If the Child and Family Court Advisory Support Service or, more probably, the local children’s services authority can be persuaded to help in difficult cases, then so much the better. … (Paragraph 35)

She said:

“The important thing is that those conducting and deciding these cases should be alive to the point and prepared to ask the right questions. …

In this case the mother’s representatives did obtain a letter from the children’s school and a report from a youth worker in the Refugee Migrant Forum of East London (“Ramfel”), which runs a Children’s Participation Forum and other activities in which the children had taken part. But the immigration authorities must be prepared at least to consider hearing indirectly from a child who wishes to express a view and is old enough to do so. While their interests may be the same as their parents’ this should not be taken for granted in every case. As the Committee on the Rights of the Child said, in General Comment No 12 [2009] on the Right of the Child to be Heard, Para 36:

“In many cases… there are risks of a conflict of interest between the child and their most obvious representative (parent(s)). If the hearing of the child is undertaken through a representative, it is of utmost importance that the child’s views are transmitted correctly to the decision-maker by the representative.”

Children can sometimes surprise one.” (Paragraphs 36, 37).

Lord Kerr of Tonaghmore JSC, who also agreed with the judgment of Lady Hale, added observations as to the nature of the weight to be attached to the interests of the child. “It is a universal theme of the various international and domestic instruments to which Baroness Hale JSC has referred that, in reaching decisions which will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child’s best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result” (paragraph 46).

It is clear from the judgment of Lady Hale that the decision in ZH (Tanzania) was not intended be in any way inconsistent with the decision of the House of Lords in Beoku-Betts. On the contrary Lady Hale cited with approval both her own observations in that case which I have cited above and the conclusion of Lord Brown of Eaton-under-Heywood (with which all other members of the court agreed) that:

“together these members enjoy a single family life and whether or not the removal would interfere disproportionately with it has to be looked at by reference to the family unit as a whole and the impact of removal upon each member. If overall the removal would be disproportionate, all affected family members are to be regarded as victims.” (paragraph 14).

Lady Hale stated that in Beoku-Betts the House of Lords held that both the Secretary of State and the immigration appellate authorities had to consider the rights to respect for their family life of all the family members who might be affected by the decision and not just those of the claimant or appellant in question (paragraph 14). However it is no less clear in my view that the decision in ZH (Tanzania) goes a great deal further than the decision in Beoku-Betts. It holds that where the prospective removal of a parent may affect the interests of a child special considerations arise.

It is not sufficient for the decision taker, whether the Secretary of State or a judicial authority, to ask and answer the question whether removal would be disproportionate having regard to the interests not only of the person to be removed but also of other family members who may be affected by the removal. It is also necessary to recognise that particular weight needs to be given to the best interests of children who may be affected by the decision to remove. Those best interests are to be treated as a primary consideration. It is not just a question of taking those best interests into account along with all other relevant considerations and asking whether the removal would interfere disproportionately with the single family life enjoyed by all relevant family members looked at by reference to the family unit as a whole and the impact of removal upon each member. The starting point is to identify where the best interests of the children in the sense of their well-being lie. It is important to consider those best interests first as a primary consideration and then to ask whether the force of any other consideration or considerations outweighs it.

It is arguable in my view that Lord Kerr’s conclusion that the best interests of a child is a factor that must rank higher than any other goes further than the conclusion of the majority that those best interests are a primary consideration and thus does not form part of the ratio of the decision in ZH (Tanzania). It might be thought that if a factor must rank higher than any other it must be the primary consideration rather than just a primary consideration. Lady Hale’s formulation would appear to contemplate the possibility of two or more primary considerations, neither or none of which necessarily must rank higher than the other(s).

However that may be, there is in my view a common element in the approach prescribed by Lady Hale and Lord Kerr. Lady Hale approved the dictum of the High Court of Australia that the decision maker should look to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it and also the principle identified by the Federal Court of Australia that the tribunal is required to identify what the best interests of the children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration or the cumulative effect of other considerations outweighed the consideration of the best interests of the children understood as a primary consideration. Lord Kerr held that the best interests of the child is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them.

If Lord Kerr’s conclusion that “what is determined to be in a child’s best interest should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result” goes beyond the approach laid down by Lady Hale it does not in my view go very much further beyond it. (Lord Kerr expressly agreed with the judgment of Lady Hale.) I note in this context that Lady Hale observed that “an argument that the continued presence of a particular individual in the country poses a specific risk to others may more easily outweigh the best interests of that or any other child than an argument that his or her continued presence poses a more general threat to the economic well-being of the country.” (Paragraph 28). Plainly if and to the extent that there are material differences between the approach prescribed by Lady Hale and supported by the other members of the Court apart from Lord Kerr on the one hand and that prescribed by Lord Kerr on the other it is the former which must be followed.

The first new submissions advanced on behalf of the Claimant in her solicitor’s letter dated 17 September 2010 did not put forward new evidence in relation to her Article 8 claim. They submitted that the Secretary of State had failed to consider the Claimant’s and her children’s circumstances and give regard to the duty imposed under S55 of the 2009 Act. The Act was said not to have been considered by the Tribunal at the time of the Claimant’s appeal hearing.

In their response in the letter dated 22 September 2010 the UKBA stated that they were satisfied that the Claimant’s circumstances did not engage the duty imposed under S.55 because the immigration judge had been satisfied that if the Claimant were removed to Malawi there would be much less disruption to the family life between her and her children in light of her finding that she had shown little or no interest in their health or education and that her sister had made all the major decisions in their lives.

The duty imposed on the Secretary of State by S.55 of the 2009 Act is to make arrangements for ensuring that any of her functions in relation to immigration, asylum or nationality are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom and that any services provided by another person pursuant to arrangements made by the Secretary of State which relate to the discharge of such a function are provided having regard to that need. (See S.55 (1) (a) and (b) and (2) (a)). In addition, a person exercising such a function must in exercising the function have regard to any guidance given to that person by the Secretary of State for the purpose of subsection (1). Statutory guidance to the UKBA on making arrangements to safeguard and promote the welfare of children was issued under S.55 under the title “Every Child Matters – Change for Children” in November 2009. The Guidance included the following in Part 2 under the title “The role of the UKBA in relation to safeguarding and promoting the welfare of children”:

“2.7

The UKBA must also act according to the following principles: …

in accordance with the UN Convention on the Rights of the Child the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children…..

“2.11

responsibility for the UKBA’s contribution to safeguarding and promoting the welfare of children lies with each member of staff according to their role”

Judge Freestone in her reasons did not refer to S.55 of the 2009 Act. What she did do was to state that she had considered the Article 8 rights not only of the Claimant but of her partner and the extended members of the family. In doing so she quoted the passage in paragraph 4 of the speech of Baroness Hale of Richmond in Beoku-Betts [2008 UKHL 39] which I have set out earlier in this judgment.

She found that the children were encouraged to stay with the Claimant on occasions, that before then when she came to the UK the Claimant lived with her children and her sister for about a year and that if the Claimant were removed to Malawi there would be much less disruption to what she described as “the family life” between the Claimant and her children than if they were living together as a functioning family unit. She accepted that there will always be a family life between a mother and her children and said that she was satisfied that the Claimant does have an element of family life with her children, the question in her view being whether the strength of that family life is sufficient to outweigh the interference caused by removing the Claimant in the public interest of immigration controls. The children would be able to maintain contact through modern forms of communication, in just over a year the Claimant’s son would be in a position to decide whether he wished to return to Malawi to join his mother and her daughter would be in a similar position in four years. In those circumstances after considering the opinions in Beoku-Betts she was satisfied that the Claimant’s removal would not breach the Article 8 rights of either the Claimant or her children.

In R (TS) the Secretary of State for the Home Department [2010] EWHC 2614 (Admin) at paragraph 24 Wyn Williams J held that the question in every case in which it is alleged that a decision maker has failed to have regard to the factor identified in the statute is whether the decision maker has in substance had regard to the matter identified. In the written decision produced by the decision maker he does not have to refer expressly to the relevant statutory duties; however the terms of the written document must be such that it is clear that the substance of the duty was discharged.

It is in my view clear that Judge Freestone in her determination did not apply the principles or follow the approach prescribed by the Supreme Court in ZH (Tanzania). That approach requires the decision maker not merely to have regard to the best interests of affected children but to identify where their best interests lie as a starting point and then to consider whether any or all other considerations are of sufficient weight to outweigh them. Her failure to do so was in my view not merely a matter of form but one of substance. While she no doubt sought faithfully to apply the approach laid down by the House of Lords in Beoku-Betts it does not follow that she did and in my view she did not follow the approach prescribed by ZH (Tanzania). She did not start by identifying where she considered the best interests of the children to lie, she did not say that those interests were a factor of primary importance and she did not consider whether and if so why the other relevant considerations, in particular the need to implement immigration control, outweighed them. Indeed when identifying the balance to be struck she did not identify the factor to be placed on the other side of the scales from the public interest in immigration control as being the best interests of the children, but rather the family life which the Claimant has with her children and she expressed the balancing exercise to be carried out as assessing whether the latter was of sufficient weight to outweigh the former rather than, as prescribed by the Supreme Court in ZH(Tanzania), whether the former was of sufficient weight to outweigh the best interests of the children.

However the matter comes before me not as an appeal against the decision of Judge Freestone but rather as a claim for judicial review of the decisions of the Secretary of State not to treat the Claimant’s further representations and evidence as a fresh claim. What the Secretary of State was required to do was to ask herself with anxious scrutiny whether there was a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, reaching a different conclusion to Judge Freestone based on the new material relied on by the Claimant but also having regard to the material which was in front of, and the findings that were made by Judge Freestone. That question as it seems to me required the Secretary of State to assume that an adjudicator would correctly apply to the facts of a putative appeal the relevant applicable law. That raises the question whether the relevant applicable law which the Secretary of State should have assumed the adjudicator would apply includes the approach and principles which were laid down by the Supreme Court in ZH (Tanzania) after the various decisions were taken on behalf of the Secretary of State in September, October and November 2010.

Looked at in one way I can well understand that it might seem surprising if a decision can be impugned on the ground that the decision maker failed to take into account a statement of the law which had not yet been articulated or laid down by a court binding on him or her. In particular I can see force in the argument that a failure to do so could not fairly be described as unreasonable or irrational. On the other hand, as pointed out by Beatson J in TheQueen (on application of SM) v the Secretary of State for the Home Department [2011] EWHC 338 (Admin):

“the effect of a decision such as that in ZH (Tanzania) is often characterised as changing the law, and, in popular discourse that may be so. But, strictly speaking, as a result of the common law principle that judicial decision-making is declaratory, it is in fact not the law that has changed but our understanding of what the law is.” (Paragraph 100).

Beatson J went on to hold that it was not necessary in that case to decide whether there is a tension between the common law’s declaratory principle of judicial decision-making and the treatment of the European Convention on Human Rights as “a living instrument” or if there is how it is to be resolved. He held that “in the present circumstances, the Defendant’s approach to the effect of the grant of the British Citizenship to FM may have been in accordance with the general understanding of what the law was at the time but that does not mean that it was lawful”. (ibid.)

Were it necessary to decide the point, I would hold that in asking themselves whether there was a realistic prospect of a successful appeal the decision makers on behalf of the Secretary State should have assumed that the adjudicator would follow the approach and principles articulated by the Supreme Court in ZH (Tanzania). An examination of the letters dated 22 September 2010, 21 October 2010 (and the accompanying Consideration of Submissions) and 8 November 2010 shows that they did not do so.

The letter dated 22 September 2010 merely stated that the UKBA was satisfied that the Claimant’s circumstance did not engage the duty imposed under section 55 of the 2009 Act. The 21 October 2010 Consideration of Submissions dismissed the significance of the Brown report on the basis that the Claimant’s rights under Article 8 (as distinct from the children’s rights under Article 8) had been fully considered by the Secretary of State’s representative and by an immigration judge and that the determination of the latter had been upheld by a Judge of the Upper Tier and by the High Court on the application for judicial review which had found that the claims of the Claimant under Article 8 (as distinct from the Children’s rights under Article 8) had been fully considered and found to be totally without merit. The letter dated 8 November 2010 described the documents submitted by the Claimant’s solicitors as supporting her claim that her removal would disproportionately interfere with her family life and stated that that issue had been fully considered by the independent judiciary on a number of occasions. Again no reference was made to the rights of the children under article 8. Further the letter quoted Lord McDonald’s statement that “the Claimant does have some family life but its strength is not such as to outweigh the public interest in maintaining fair, consistent and effective immigration control” and stated that in view of those findings the documents submitted did not add any weight to the Claimant’s claim. Again there was no reference to any consideration of the children’s article 8 rights, still less to any acknowledgment that their best interests were a primary consideration.

Thus in refusing to accept that the further representations and evidence constituted a fresh claim substantial reliance was placed by the decision makers on aspects of the determination of Judge Freestone which did not apply the ZH (Tanzania) approach and principles and aspects of later judicial decisions which did not appear to have done so either. Those aspects did not, and therefore neither did the decision makers, address the question which an adjudicator on an appeal would have been bound to do, namely whether the best interests of the children lay in not being separated from their mother and in remaining in the United Kingdom, and if so, given that those best interests are a matter of primary importance, whether the interest of immigration control is of sufficient weight to outweigh it. The conclusion that there would be no realistic prospect of a successful outcome of an appeal therefore failed properly to consider whether the new material, taken together with judge Freestone’s findings, might realistically lead an adjudicator to conclude that the best interests of the children lay in not being separated from their mother and remaining in the United Kingdom, that those best interests are a matter of primary importance and that the interest of immigration control is not of sufficient weight to outweigh it.

In my view no reasonable decision maker could have failed to conclude that there was a realistic prospect of a successful appeal based on the new material relied on assuming that the adjudicator applied the approach and principles laid down by the Supreme Court in ZH (Tanzania). The fact that Judge Freestone had not applied that approach and those principles undermined the soundness of the reliance placed by the decision makers on her findings as a reason for concluding that the new material and representations added nothing. A proper focus on where the best interests of the children lay and how their well-being would be affected by the removal of the Claimant to Malawi would in my view have led a reasonable decision maker to conclude that there was a realistic prospect of a finding by an adjudicator based on the indirect evidence of the children and the independent evidence relied on by the Claimant that the best interests and well-being of the children lay clearly and emphatically in them not being separated from the Claimant, in their remaining in this country themselves and thus in the Claimant not being removed, that those best interests are a matter of primary importance and that the public interest in the general objectives of immigration control are not sufficient to outweigh those interests.

However, as already mentioned, my conclusion that the decisions taken on behalf of the Secretary of State cannot withstand the challenges to which they have been subjected, is not dependent on my conclusion that they should have assumed that an adjudicator would apply the law as articulated in ZH (Tanzania).

Section 55 of the 2009 Act was in force when the decisions were taken in September, October and November 2010 and, as recorded by Lady Hale in ZH (Tanzania) in that case, Ms Carss-Frisk acknowledged on behalf of the Secretary of State that her duty to make arrangements for ensuring that the functions in relation to immigration, asylum and nationality “are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom” applies to decisions about immigration, asylum, deportation or removal. It followed, as Lady Hale pointed out, that both the Secretary of State and the Tribunal would therefore have to address that in their decisions. (See paragraph 24). Pursuant to Section 55 it was also incumbent on those taking decisions in relation to this matter to have regard to the guidance issued by the Secretary of state in paragraph 2.7 of the November 2009 Guidance that the UKBA must act in accordance with the principle that the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children.

On its face the statement in the letter dated 22 September 2010 that because the Immigration Judge was satisfied that if the Claimant were removed to Malawi there would be much less disruption to the family life between her and her children the UKBA were satisfied that the Claimant’s circumstance did not engage the duty imposed under section 55 of the 2009 Act was infelicitously phrased. It may be that the writer intended to say that the circumstances found by Judge Freestone were such that the duty imposed by section 55 did not require the discretion to be exercised against removal. The internal evidence to which I have referred suggests that in fact those responsible for considering the Claimant’s further representations did indeed consider that the potential consequences for the children did require the UKBA to have specific regard to their interests. It was no doubt for that reason that the matter was referred to the OCC.

The flaw in the approach of the decision makers in my view was that they failed to give due and proper consideration to the contents of the material placed before them in terms of the light it cast on the impact on the children of the removal of the Claimant to Malawi and the potential impact which it might realistically have on an adjudicator. It was in my view a wholly inadequate response to the contents of the Brown report to assert that it made no material difference to the Claimant’s claim and would not meet the test of “realistic prospect of success” merely because the rights of the Claimant under Article 8, as distinct from those of the children, had been fully considered by the Secretary of State’s representatives and an Immigration Judge and because the determination of the latter had subsequently been upheld, including by a judge who found that the Claimant’s claim under Article 8 (as distinct from the children’s Article 8 rights) were totally without merit.

Nor was it an adequate response to point out that Ms Brown had not been asked to address the fact that Ms K had attained guardianship of the children and that Judge Freestone had said that she was not the sole but rather the primary carer. In my view those responses failed adequately to address the substantive content of Ms Brown’s report and the potential implications of it on an appeal to which I have referred. The focus of the report was on the impact of the removal of the Claimant on the well-being of her children. It included new material not before Judge Freestone, in particular statements made by the children themselves, and it expressed strong opinions based on conversations with the Claimant, Ms K and the children to the effect that removal would have an adverse impact on the well-being of the children, whose statements Ms Brown clearly accepted at face value. There was no reasoned explanation by the decision makers on behalf of the Secretary of State as to why the new material referred to and opinions expressed in the Brown report did not create a realistic prospect that an adjudicator might answer in the affirmative the questions (not identified by Judge Freestone as questions she asked herself ) whether the best interests of the children lay in not being separated from their mother and whether those best interests were a matter of primary importance or might answer in the negative the question(also not identified by Judge Freestone as one she asked herself) whether the public interest in immigration control was so strong as to outweigh it.

By the same token the assertion in the letter dated 8 November 2010 that Lord McDonald’s findings meant that the documents submitted by the Claimant did not add any weight to the Claimant’s claim was in my view inadequate. Again it failed to address the contents of the documents supplied by the Claimant’s solicitors to which I have referred and the potential implications of those contents on an appeal. Nowhere, for example, is there any reference to the contents of Ms Galsworthy’s letters, the letters of Professor Mokaya, the letter from the school teacher and in particular the statements of the children referred to in Ms Galsworthy’s letter. In my view any proper consideration of that material should have led a reasonable decision maker to conclude that there was a realistic prospect that an adjudicator having regard to the duty under Section 55 would allow an appeal.

I am further fortified in this view by the manner in which the OCC was involved in this case, the details of which I have referred to above. It is plain that at an early stage it was recognised within the UKBA that this case raised important questions as to the best interests of the Claimant’s children and that for that reason the OCC should be consulted. Although no express reference is made to this thought process, it is in my view implicit that it was recognised that the involvement of the OCC was a necessary and appropriate part of the discharge by the UKBA and the officials within it of the duties imposed by Section 55 of the 2009 Act to promote the interests of the children.

As appears from my chronological account above, it is plain that the OCC were never put in a position to give advice based on all relevant material. At an early stage prior to their initial indication of support for the Claimant’s removal, it appears that the OCC were under the misapprehension that the Claimant’s daughter was a twin and therefore nearly 17 years old. The OCC had asked if the children’s views had been sought but it is not clear that they received any indication as to what views they had expressed. Precisely when the OCC was shown and read Judge Freestone’s determination is not clear. The significantly incorrect statement that she had found that the Claimant did not have a family life in the UK, when in fact she found that she was satisfied that the Claimant does have an element of family life with her children, was made in a memo from Mr Phillips to Mr Yates inviting agreement to the Claimant’s removal and appears to have been repeated either in Ms Donovan’s email to Mr Yates dated 13 September, in which she said she could see no reasons why she would not support the Claimant’s removal, or in a document placed before Ms Donovan.

Further at no point was the OCC shown the Brown report. That report had been received by the UKBA on 14 October 2010 and it was plainly regarded as of sufficient importance as a potential basis for a fresh claim argument to merit detailed refutation in the letter to the Claimant’s solicitors from the UKBA dated 21 October 2010. However both the letters dated 21 October 2010 and 8 November 2010 rejecting the Claimant’s further representations and holding that they did not constitute a fresh claim were written without the benefit of any input from the OCC based on their reading of the Brown report. By the time the OCC was consulted for the second time by Mr Smith on 10 November 2010 there was insufficient time before the departure of the Claimant’s flight to Malawi for the OCC to consider the Brown report. This was plainly a matter of extreme concern to the OCC and understandably so.

Although there is no express statutory duty on the Secretary of State or the UKBA to involve the OCC in these circumstances, in my judgment it was not reasonable, having regard to all the circumstances, to take the decisions that were taken in relation to the further representations and material without the benefit of fully and properly informed advice from the OCC. There were no pressing reasons of speed or urgency to justify failing to give the OCC the relevant material in sufficiently good time to enable them to consider it and advise on it.

Mr Smith in his statement stated that, although he sought the advice and input of the OCC on 10 November 2010 (presumably with a view to considering it in deciding whether to proceed with the removal of the Claimant), he did not consider that it was necessary to do so. I find this surprising. The OCC had been consulted at an earlier stage, presumably because it was appreciated that it was appropriate to take the OCC’s views into account in deciding whether removal was appropriate. Given that the main thrust of the further representations was to the effect that the decision to remove the Claimant contravened duties imposed by Section 55 of the 2009 Act and focused on the actual and potential adverse affects of removal on the children, it is hard to identify a logical basis on which it could reasonably be supposed that the advice and input of the OCC was no longer necessary or appropriate.

The fact that the UKBA took the view first that the new material did not constitute a fresh claim and later that it did not justify deciding not to remove the Claimant does not seem to me in itself a sufficient ground to justify not consulting the OCC or not doing so in time to enable it to give fully informed advice. The whole point of involving the OCC in decisions such as these is to enable decisions to be taken in the light of informed advice by a semi independent unit whose remit is to consider the best interests of affected children. Implicit in the very system as it seems to me is the possibility that the OCC may take a different view to the UKBA decision-makers.

Of course I recognise and accept that there may be extreme cases where hopeless and/or abusive representations are made which are so wholly without substance as to justify a decision that it is not necessary or appropriate to seek further advice from the OCC, particularly once an initial decision to remove has been taken. However this in my view was not such a case. On the contrary, even leaving aside the failure fully to involve the OCC in the later stages, the UKBA decision-makers erred in my view in concluding that the new material and representations did not constitute a fresh claim.

I am conscious that the criticism can be and has been levelled at the Brown report and the Galsworthy letters that to the extent that they are based on factual accounts given to them by the Claimant and Ms K, they are parasitic on their evidence and to that extent are dependent on the reliability and/or veracity of the Claimant and Ms K. It is no doubt for that reason that the comment was made that the new representations and material are an attempt to get round the factual findings of the immigration judge. In my view that criticism fails to address the significant fact that, (unlike Judge Freestone who did not hear oral testimony from the children) both Ms Brown and Ms Galsworthy also had direct communication with the children and clearly accepted the truth of their accounts, which accounts not only supported the evidence of the Claimant and Ms K but also constituted powerful evidence of the adverse psychological and emotional effects on the children of the actual and prospective separation from their mother. It also fails to address the fact that the legal approach followed by Judge Freestone was not that which an adjudicator would be bound to follow and that even in terms of fact finding the new evidence might realistically lead the adjudicator to make different findings to those made by judge Freestone. That after all is one of the ways in which new material can sometimes lead to a different outcome on appeal: evidence which was rejected on the first occasion can sometimes be accepted on a second appeal where it is supported by new evidence. Where that happens it is a perfectly legitimate bringing of a fresh claim and it is no answer to the merits of the new material and its potential for persuading an adjudicator to take a different view of the facts to characterise it as an attempt to get round the original findings of fact.

I would go further. In my view, even disregarding the aspect of the implications of Section 55 of the 2009 Act, and assuming that a future adjudicator would approach an appeal solely by reference to the Beoku-Betts principles, no reasonable decision-maker could have failed to conclude that based on the new material there was a realistic prospect of a successful appeal. In all the respects to which I have referred above in my view the contents of that material were such that it was unreasonable to conclude that there was no realistic prospect of an adjudicator concluding that the Claimant’s removal would interfere disproportionately with the family life enjoyed by the Claimant and her children by reference to the family unit as a whole and the impact of her removal on her and her children.

It was accepted by Ms Carss-Frisk in argument that the effect of Supperstone J’s order giving leave to amend was to give the Claimant permission to challenge the legality of the decision to proceed with the Claimant’s removal on 10 November 2010. In her submission however the fact that the process of consulting the OCC had not been completed before the Claimant was removed did not render the decision to remove her or her removal itself unlawful. There is she submitted no statutory duty to consult the OCC. The machinery of implementing immigration control would grind to a halt if every time an unsuccessful Claimant submitted new representations the Secretary of State and/or the UKBA were required to consult the OCC and to defer removal until the completion of the consultation process.

I have already indicated that I see force in those submissions. However the issue raised on this second ground of challenge is in the nature of things unlikely to arise very often. Where the Secretary of State accepts that rejected further representations nonetheless constitute a fresh claim, as I understand it, it is the practice to defer removal automatically until the conclusion of a fresh appeal. Where the Secretary of State refuses to accept that rejected further representations constitute a fresh claim, it is open to a person aggrieved to apply for an injunction to restrain removal pending judicial review. Where the fresh representations are considered by the Court to give rise to an arguable case that they constitute a fresh claim injunctive relief is likely to be given. Again there will be no removal. In this case injunctive relief was refused as was permission to apply for judicial review. Indeed that very refusal appears to have played a large part in the later decisions of the UKBA to conclude that the fresh material did not constitute a fresh claim. It is in part because I have held that the UKBA was wrong to reach that conclusion that the issue in the second ground of challenge arises in this case.

There is no express or explicit obligation imposed on the Secretary of State or the UKBA to consult the OCC in specified circumstances. Pursuant to Section 55 of the 2009 Act relevant officials are required to have regard to the Guidance issued in November 2009 that the UKBA must act in accordance with the principle that the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children and that responsibility for the UKBA’s contribution to safeguarding and promoting the welfare of children lies with each member of staff according to their role. (Paragraphs 2.7 and 2.11). Paragraph 2.9 of the Guidance states:

“There shall be a senior member of staff (“Children’s Champion”) who is responsible to the Chief Executive of the UK Border Agency for promoting the duty to safeguard and promote the welfare of children, for offering advice and support to UK Border Agency staff in issues related to children, and identifying and escalating areas of concern.”

On its face there is thus no explicit statutory duty on the UKBA or the Secretary of State to consult the OCC in specified circumstances. In a letter to the Immigration Law Practitioners Association dated 21 April 2011 the acting chief executive of the UKBA described the OCC as “an internal arrangement to assist decision makers and policy makers….they are not intended ever to be the last word on a case but are rather (sic) prompt fuller consideration of the issues concerning the children concerned.”.

I was told in argument that whereas there was a policy to consult the OCC before removal directions were set, there was no automatic practice to re-consult the OCC on receipt of further representations after removal directions had been set.

In written submissions it was submitted in the alternative that even if there was an obligation to consult the OCC, the guidance allows for non-compliance with the guidance if there are good reasons for doing so. It was submitted that in this case there were good reasons in that the OCC had previously been consulted and advised that it considered it appropriate to remove the Claimant and in circumstances where removal was set to proceed on the same evening on which further information provided by the Claimant had been sent to the OCC, that material had been considered by the UKBA not to give rise to a fresh Article 8 claim and several judges had agreed with that conclusion, the Secretary of State was entitled not to await the OCC’s advice on this occasion. A decision was taken by the ultimate decision-taker that removal would not disproportionately interfere with the rights of the children/Claimant which was approved at Deputy Director level.

The duty imposed on the Secretary of State by Section 55 of the 2009 Act is to make arrangements for ensuring that any of her functions in relation among other things to immigration are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom and that any services provided by another person pursuant to arrangements made by her which relate to the discharge of such a function are provided having regard to that need. Any person exercising such a function must in exercising it also have regard to any guidance given to that person by the Secretary of State. Whether such arrangements had been made must turn on the facts of any particular case. Whether services provided in any particular case have regard to the need to safeguard and promote the welfare of children in the United Kingdom is a question of fact, as is the question whether any of the Secretary of State’s functions are discharged having regard to that need.

In this case in my view the decisions taken following the receipt of the Brown report did not have proper regard to the need to safeguard and promote the welfare of the Claimant’s children. It had correctly been recognised before the receipt of the Brown report that the decision whether to remove the Claimant raised a question as to whether removal would breach the best interests of the children and that in considering that question it was appropriate to obtain the advice and input of the OCC. On 11 September 2010 Mr Menzies emailed Mr Yates and Mr Phillips asking if the OCC had been consulted and saying that in his view the OCC needed to be consulted notwithstanding that the Claimant had “handed custody of the kids over.” The advice that was given on 14 September 2010 by the OCC was taken prior to receipt of the Brown report. Receipt of that report as well as the other new material supplied to the UKBA, coupled with the representations advanced by the Claimant and in particular the request that it be considered by the OCC, in my view raised important questions as to whether the contents of the Brown report and the other material meant that having regard to the fact that the best interests of the children were a primary consideration the discretion ought to be exercised against removal and if not whether the representations should be treated as a fresh claim and ultimately whether removal should be deferred.

The receipt of the Brown report and other new material needs to be considered against the background of the OCC’s involvement earlier in the chronology. On 17 August 2010 Ms Donovan had written to Mr Smith that she felt that the OCC had very little information on which to base the welfare of the children. On 11 August 2010 she had asked him: “Do we know what the children’s views are? They are 17 yrs in November so old enough to have a view [in fact the Claimant’s daughter was only 14]…. Is their main relationship with their aunty? Do we know why they live with her rather than Ms N? I want to be sure what is in the children’s best interests ….We would not want to split a mother and her twin children[sic] unless there are very good reasons.” The OCC was thus expressing the clear view (consistent with the ZH(Tanzania) principles) that the children should not be separated from the Claimant absent very good reasons, asking a number of questions relevant to that issue and making it plain that they had very little information and indeed that such information as they did have was seriously inaccurate.

The emails before the court did not suggest that all the OCC’s questions were answered in a satisfactory way or that or whether their misapprehension as to the age of the Claimant’s daughter was corrected. On 12 August 2010 Mr Smith replied to Ms Donovan’s email stating that the file did not demonstrate the children’s view with regard to their mother. There was no correction as to the daughter’s age in that email. There may have been further communications not recorded in emails before the court, but as already mentioned in her email dated 13 September 2010 stating that she could see no reasons why she would not support the Claimant’s removal it appears that Ms Donovan may have repeated the short summary of Judge Freestone’s determination which incorrectly attributed to her a finding that she did not have a family life in the UK.

It was or should have been plain to the UKBA that the usefulness of any view expressed by the OCC on the critical question of where the best interests of the children lay and whether they were outweighed by the interests of implementing immigration control depended on the quality of information supplied to it and that the OCC had made it clear expressly and by implication at an earlier stage that it did not have the information it wanted to enable it to reach an informed view. It needed full information on the views of and circumstances relating to the children. The Brown report and the other new material, as I have concluded, contained very important information on both those matters. By the evening of 10 November it should in my view have been obvious to Mr Smith and subsequently his superiors that the prior approval given by the OCC on 17 September 2010 to the decision to remove the Claimant might well be altered in the light of that report.

As Ms Tatom said in her email to Mr Smith on 10 November 2010 at 5.05pm:

“…we are not in a position to review our support for the judge’s decision unless we have full access to the correspondence between UKBA and [the Claimant’s solicitors] and the independent social work report. We don’t know if the independent social work report contains new material which has not been considered by the judge….we are happy to conduct a review when full documentation is available to us.”

And as Ms Rowe said in her statement, given the very short time frame (the Claimant had been scheduled for removal that evening) and the fact that the OCC did not have the chance to consider all the relevant information they were not able to form a view on the implications, if any, of that new material for the welfare of the children.

In my view the contents of the Brown report and the other new material were such that it should have been sent to the OCC in sufficient time to enable it to consider it and advise on the basis of it. The Brown report had been received by the UKBA as long ago as 14 October 2010. On 5 November 2010, five days before the Claimant was removed, her solicitors, who had already asked for urgent confirmation that the OCC had been involved in the decision to split the Claimant and her children and for written evidence of the UKBA request to and response from the UKBA, again wrote to the UKBA expressing concern that the OCC would not have been in a position to make an assessment in respect of splitting the Claimant from her children without relevant supporting documentation. The UKBA was asked to refer the matter to the OCC with the Brown report as well as the first Galsworthy letter, the first letter from Professor Mokaya and the letters from the children. On 7 November 2010 they also sent the second Galsworthy letter, the second Mokaya letter and the letter from the school.

It is in my view no answer for the Secretary of State to submit that there were good reasons for deciding not to wait for advice from the OCC in that the OCC had previously been consulted and advised that it considered it appropriate to remove the Claimant. By definition that advice had been taken prior to and without knowledge of the contents of the Brown report and without time to absorb and assess the other new material. The UKBA had, not surprisingly, been put on notice by Ms Tatom on behalf of the OCC at 5.05 pm on 10 November that they were not in a position to review their support for the judge’s decision unless they had full access to the correspondence between UKBA and [the Claimant’s solicitors] and the independent social work report and that they did not know if the independent social work report contained new material which had not been considered by the judge.

Reliance by the Secretary of State ex post facto on the fact that the OCC had supported the earlier decision to set removal directions in September 2010 begs the question whether different advice would have been given had the OCC been able to consider the Brown report and the other new material. Nor in my judgment is it an answer for the Secretary of State to rely on the fact that removal was set to proceed on the same evening that the OCC was asked to advise. That fails to address the point that the Brown report and the other material could have been made available to the OCC many days earlier.

Nor in my view is it an adequate answer to say that the new material had been considered, presumably by the UKBA, not to give rise to a fresh Article 8 claim. On that logic there would never be a need to consult the OCC on receipt of new material. In the event the consideration by the UKBA of that new material was in my view defective. It is precisely to guard against that possibility that provision is made for consulting the OCC. Nor in my view is it an adequate answer to rely on the fact that other judges had “upheld” the decision of the Immigration Judge. What was required by Section 55 and the principles laid down in ZH (Tanzania) was a proper consideration by or on behalf of the Secretary of State of the new material on its merits and an assessment of whether it might realistically contribute to a successful outcome on appeal. If the UKBA’s consideration of the Brown report and the other new material was itself defective, as I consider it to have been, it does not seem to me to provide a satisfactory basis on which to seek to justify the decision not to delay the removal until the OCC had been given a proper opportunity to consider it. There is in any event no explicit statement in Mr Menzies’ statement that either he or Mr Jull read or had read to them the contents of the Brown report and the other material which the Claimant’s solicitors had asked to be sent to the OCC.

In my judgment, having regard to the duties imposed by Section 55 of the 2009 Act and the terms of the November 2009 Guidance as well as the contents of the Brown report and the other new material supplied to the UKBA, the decision to proceed with, rather than to defer, the Claimant’s removal without waiting for properly informed advice from the OCC based on consideration of all the new material supplied by the Claimant including the Brown report was Wednesbury unreasonable. Having, rightly in my view, decided to consult the OCC in relation to the new material to ascertain whether it affected or changed its original advice, it was in my view unreasonable for the UKBA on behalf of the Secretary of State to proceed without obtaining that advice for no better reason than that the material had not been supplied to the OCC in sufficient time to enable that to take place in circumstances where that material could have been supplied to the OCC in sufficient time.

Mr Menzies had concluded on 11 September 2010 that there was a need to consult the OCC before deciding whether to set removal directions and the logic of the decision to consult the OCC in the light of the Brown report and the other new material was, rightly as it seems to me, that just as there had been in September, there was a realistic prospect that the OCC might advise against removal, this time based on its assessment of the Brown report and the other new material and that if that were to happen the UKBA would be bound to take that advice into account. It should in my view have been obvious to the UKBA that there was a very real prospect that in the light of that material the OCC might change its advice and oppose the Claimant’s removal and that in the light of such advice it would be unreasonable for the UKBA to proceed with the Claimant’s removal without reconsidering its own views in the light of it.