Mohan v Secretary of State for the Home Department [2012] EWCA Civ 1363

“36. It is impossible not to have a considerable measure of sympathy for the appellant’s children, particularly Taylor who has exhibited behavioural difficulties … and who has had an unhappy upbringing to date, partly because of her father’s law breaking and partly because of her mother’s feckless and irresponsible behaviour. The effect of the appellant’s removal on his other two children and on his partner must also be taken into account, albeit that they do not exhibit the same degree of concern as that relating to Taylor. 37. Nevertheless, when the best interests of the appellant’s children are taken properly into account together with the other factors weighing in his favour …, and when those factors are balanced against the legitimate and weighty public interest …, I am satisfied that on the facts of the appellant’s case, the balance comes down against him. I therefore find against the appellant in relation to his Article 8 claim.”

“47. …I am not persuaded that the appeal should be allowed under either Article 6 or Article 8 pending the outcome of the Children Act proceedings which the appellant has initiated. The evidence shows that those proceedings were started as long ago as June 2008. They were then allowed to remain dormant for some three years. It is only now that the appellant has belatedly taken any steps to revive them, clearly with the intention of delaying or preventing his removal from the United Kingdom. He had ample opportunity to do so previously, not withstanding the practical difficulties which his imprisonment and detention have no doubt caused in that respect. His prospect of succeeding in those proceedings would clearly be enhanced significantly if he were now allowed to remain in the United Kingdom, particularly if he were allowed to do so on an indefinite basis. Conversely, his prospects of success would be reduced considerably, if not indeed extinguished altogether, if he were to be deported to Jamaica instead. However, that is a matter for the court dealing with the Children Act application to take into account when reaching its decision. The fact that the appellant did not pursue his application for the last three years, but to allow it to remain dormant instead, is not in my assessment sufficient to show that it would constitute a breach of his human rights, either under Article 6 or Article 8 to remove him from the United Kingdom now even though the outcome of those proceedings remains unresolved. Even if I were persuaded to allow the appeal so as to enable a short period of discretionary leave to be granted by the respondent … , the reality remains that that would be likely to prove no more than a short term relief from the appellant’s point of view. The court considering the application would undoubtedly have to made aware, if indeed it has not already been made aware that the appellant is still facing the real prospect of deportation from the United Kingdom with the concomitant inability to return, at least legally whilst the deportation order remains unrevoked for a substantial period, and would no doubt regard that as a significant consideration when reaching its decision.”

“The Tribunal misdirected itself in law in its approach to the inter-relationship between the family proceedings and the immigration proceedings and misapplied the law to the facts of the case, so as to occasion a violation of rights protected by Article 8 ECHR.”

“66. In determining whether an interference was ‘necessary in a democratic society’, the Court will take into account that a margin of appreciation is left to the Contracting States. It recalls that the Convention does not in principle prohibit Contracting States from regulating the entry and length of stay of aliens … Nevertheless, the Court also reiterates that, whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8: What … has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as ‘necessary’ within the meaning of Article 8 (see W v United Kingdom, 8 July 1987, … and McMichael v United Kingdom, 25 February 1995). …. 71. In the view of the Court, the authorities not only prejudged the outcome of the proceedings relating to the question of access by expelling the applicant when they did, but, and more importantly, they denied the applicant of all possibility of any meaningful further involvement in those proceedings for which his availability for trial meetings in particular was obviously of essential importance. It can, moreover, hardly be in doubt that when the applicant eventually obtained a visa to return to the Netherlands for three months in 1999, the mere passage of time had resulted in a de facto determination of the proceedings for access which he then instituted … The authorities, through their failure to coordinate the various proceedings touching on the applicant’s family rights, have not, therefore, acted in a manner which has enabled family ties to be developed. 72. In sum, the Court considers that the decision-making process concerning both the question of the applicant’s expulsion and the question of access did not afford the requisite protection of the applicant’s interests as safeguarded by Article 8. The interference with the applicant’s right under this provision was, therefore, not necessary in a democratic society.”

“In our judgment, the AIT did not decide the hypothetical question it was incumbent upon it to decide, namely whether the appellant’s Article 8 rights would be violated by a removal when the case was before it, ie when the contact application was outstanding.”

“Since in our view [the child’s] best interests were likely to play a decisive role in the outcome of the deportation appeal, we concluded that we had no alternative but to adjourn those proceedings until the family court had examined all the information available to it and determined where those best interests lay.”

“Both the Home Office and the immigration judiciary are concerned with an assessment of the best interests of the child affected by an administrative decision to remove either the child or a parent or other person providing care or support to the child. This is made clear by the terms of s55 of the UK Borders Act 2009, the decision in ZH (Tanzania) [2011] UKSC 4 and the Strasbourg case law on Article 8 such as Maslov v Austria [2009] 1 NLR 47 stating that immigration decision-making affecting children under 18 has to be consistent with the terms of Article 3 of the UN Convention on the Rights of the Child 1990. However, whereas in family law proceedings the welfare of the child is the paramount consideration, in immigration proceedings it is ‘a primary’ rather than ‘the paramount’ consideration and can be outweighed by other compelling rights-based factors. These include those set out in Article 8(2) ECHR, namely the prevention of disorder and crime, the promotion of the economic well-being of the country and the protection of the rights of others by the maintenance of a system of immigration control … Further, the family court is best placed to evaluate the best interests of the child in proceedings brought before it. Both the decision itself and the reasons for the outcome are material to the consideration of the Article 8 balance to be conducted by the immigration judiciary and may be a decisive consideration. Reasoned decisions of such courts are not to be ignored in immigration appeals. Indeed the problem facing immigration judges is that, although they must attach weight to the best interests of the child, in many cases they will often not be able to assess what those interests are without the assistance of a decision of the family court. The family court has, amongst other things, procedural advantages in investigating what the child’s best interests are, independent of the interests of the parent, as well as the necessary expertise in evaluating them. An informed decision of the family judge on the merits and, in some cases at least, the material underlying that decision, is likely to be of value to the immigration judge”

“43. In our judgment, when a judge sitting in an immigration appeal has to consider whether a person with a criminal record or adverse immigration history should be removed or deported when there are family proceedings contemplated by the judge should consider the following questions: (i) Is the outcome of the contemplated family proceedings likely to be material to the immigration decision? (ii) Are there compelling public interest reasons to exclude the claimant from the United Kingdom irrespective of the outcome of the family proceedings or the best interests of the child? (iii) In the case of contact proceedings initiated by an appellant in an immigration appeal, is there any reason to believe that the family proceedings have been instituted to delay or frustrate removal and not to promote the child’s welfare? (iv) In assessing the above questions, the judge will normally want to consider: the degree of the claimant’s previous interest in and contact with the child, the timing of the contact proceedings and the commitment with which they have been progressed, when a decision is likely to be reached, what materials (if any) are already available or can be made available to identify pointers to where the child’s welfare lies?” (i) Is the outcome of the contemplated family proceedings likely to be material to the immigration decision? (ii) Are there compelling public interest reasons to exclude the claimant from the United Kingdom irrespective of the outcome of the family proceedings or the best interests of the child? (iii) In the case of contact proceedings initiated by an appellant in an immigration appeal, is there any reason to believe that the family proceedings have been instituted to delay or frustrate removal and not to promote the child’s welfare? (iv) In assessing the above questions, the judge will normally want to consider: the degree of the claimant’s previous interest in and contact with the child, the timing of the contact proceedings and the commitment with which they have been progressed, when a decision is likely to be reached, what materials (if any) are already available or can be made available to identify pointers to where the child’s welfare lies?”

“I ask that the court make a residence order in my favour for Taylor to live with my family and I during the week so that we can ensure that she attends school, with [Colleen] to have staying contact at weekends … ”

“Even if I were persuaded to allow the appeal so as to enable a short period of discretionary leave to be granted by the respondent … the reality remains that that would be likely to prove no more than a short-term relief from the appellant’s point of view. The court considering the [residence] application would undoubtedly have to be made aware … that the appellant is still facing the real prospect of deportation … with the concomitant inability to return … for a substantial period and would no doubt regard that as a significant consideration when reaching its decision.”