"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"
“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 …”
“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”
“… I agree with the ruling of the appeal court. I support your submissions.”
"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."
"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"
“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.”
“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.”
“It is obvious that B is experiencing high levels of anxiety and depression in relation to her condition and has not quite come to terms with coping with the diagnosis.” 2.6 However the visa was dependent upon her maintaining her studies but that by this time her attendance was precarious. Instead Mrs. N chose to work rather than study and began to enjoy the benefits of earning money which she used to support her children who remained for a short time with her sister until she obtained her own property through the Methodist Church which she and her sister attended. Mrs. K told me that despite the Home Office suggestions otherwise, Mrs. N’s children remained living with their mother in an independent property until the time she was removed and detained by UKBA officials. K told me that he was in the property when his mother was taken, something which he found both deeply disturbing and distressing. Until this point the children had stayed with their mother during the week and stayed with their aunt, who remained their legal guardian, during weekends. 2.7 It is my intention throughout the remainder of this report to explore the issues and difficulties facing the family unit and, the very serious impact Mrs. N’s removal would have upon her, but also her children who whilst they are now in adolescence, remain highly dependent upon their mother to nurture and protect them. Section 2 Current situation F K, K and T K 2.8 Shortly after terminating her studies in the United Kingdom, Ms. N obtained work in the Nottingham area. Ms. N also obtained a property independently of her sister but in close proximity to her. I understand that during the time that Ms. N has been living in the United Kingdom she has had three separate properties but all of these have been in close proximity to Mrs. K, including for a period of time, living next door to each other. In Judge Freeman’s Determination of26 August 2010 it was stated that Ms. N resided with her sister and children for only a year before moving out and leaving their children with her sister and that she had shown “little interest in their health or education. Her sister has made all the major decisions in their lives. In those circumstances I am satisfied that if she were removed to Malawi there will be much less disruption to the family and life between her and her children than if they were living together in a functioning family unit” 2.9 This description of family life is something, which all members who I interviewed strongly denied, and told me that it was a complete misrepresentation of their family lives that were harmonious and closely unified. In 2006 Mrs. N moved next door to her sister and remained living there for a two year period until 2008. This property belonged to the Methodist Church and was managed by a church minister who arranged, in the first instance, for Ms. N to move into the property. The minister recognised that Mrs. N needed her own independence but that this needed to remain close to Mrs. K in order that they could both continue to provide joint care for their children. 3.0 As stated in paragraph 2.5, Ms. N had been living next door to her sister, the arrangement being that the children stayed with Ms. N during the week and with their aunt at weekends. When the UKBA officials removed Ms. N on 22 July of this year, Ms K told me that her children were distraught. Life in the United Kingdom at this point had been relatively normal, the two families would check on each other every day, Ms. N’s children would visit their local library at least three times a week and then be driven or taken home by Mrs. K and they would spend the remainder of the evening with their mother. 3.1 Mrs. K told me that when Ms. N’s appeal was heard on 26 August the immigration judge suggested that the children leave the hearing as it will cause them unnecessary distress, and so the children were told to leave the room. At this point Mrs. K told me of her anger at the dismissive approach of the immigration judge. Ms K confided in me that she and the children were fully aware of Ms. N’s medical condition, that she is HIV positive and in the advanced stage of the disease. In fact the children told me that they had known about their mother's condition for at least two years following their finding of a letter. The children had not told their mother about the find, but both had felt immense sadness, and a certain depression, when they became aware of the situation. Mrs. K told me that neither she nor Ms. N’s children would want her to die alone in a medical ward without the support of close family members. If anything the children felt extremely protective of their mother and display an immense maturity and understanding of the situation. I did not question Mrs. N on this point because of the nature of the interview, and I was unsure as to whether it was a confidential meeting, and one which met Data Protection Act protocol. 3.2 K told me that at the point he discovered his mother was HIV positive he became extremely fearful and distressed. Neither of the children disclosed this information to their aunt F, she in turn was upset that “they had carried this alone”
“It’s not fair, mum has done nothing wrong, we are punished as much as her, it’s breaking my heart, what she is feeling, all I want is to have my mum back, that’s what it is. I want my mum over here not over there, I need my mum.”
“I can protect my sister but she cannot talk to me like she can my mum.”
“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…”
“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.”
“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.”
“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”
“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).”
“… 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.”
“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.”
“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”
“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.”
“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.”
“…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.”