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

The Family Division may make residence, care or wardship orders concerning a child subject to immigration control, but such orders cannot restrain or fetter the Secretary of State’s statutory immigration powers. Any challenge to removal is a matter for the Administrative Court. The family and immigration jurisdictions perform different functions: the family court applies the child’s welfare as the paramount consideration, whereas the Secretary of State must balance the child’s interests with immigration policy. Family proceedings should be exercised sparingly where they may be used to influence removal, but may continue where there is a genuine issue and a solid advantage to the child in a full hearing. Public-law fairness may require removal directions to be disclosed when their concealment affects the conduct of related proceedings.

The judgment concerned two linked proceedings arising from removal directions against a Sri Lankan family. In the Family Division, Mrs Bollen sought wardship and a residence order concerning Robinson Anton, a minor who had spent substantial time living with her family. In the Administrative Court, the Anton family challenged removal directions issued by the Secretary of State.

The central issues were whether the family proceedings should be summarily terminated as an attempt to frustrate removal, whether the Family Division could restrain removal, whether the Secretary of State had acted consistently with relevant policy and fairness, and what interim relief should continue.

1. Jurisdiction. A Family Division judge exercising wardship or Children Act jurisdiction cannot restrain the Secretary of State from removing a child subject to immigration control. The issue is one of public law and any restraint must be sought in the Administrative Court. The principle applies equally to wardship, private-law proceedings under Part II, public-law proceedings under Part IV, and the inherent jurisdiction.
2. The family court may make a residence order, care order or wardship order, but none of those orders limits or confines the Secretary of State’s immigration powers. The family court and the Secretary of State perform different functions. The family court treats the child’s welfare as paramount; the Secretary of State must consider the child’s interests but they are not paramount and may be outweighed by immigration policy.
3. Family proceedings concerning a child liable to removal must be exercised very sparingly. If there is no genuine dispute concerning the child, the court must not permit its jurisdiction to be used merely to influence the Secretary of State. That would be an abuse of process. The court must nevertheless investigate a genuine welfare issue and must not conduct a comparative assessment of living conditions in the United Kingdom and the country of removal.
4. In this case there were real issues concerning Robinson’s residence, care and relationship with the Bollen and Anton families. There was a solid advantage to him in a proper judicial investigation. Summary disposal would not be in his best interests, although the family proceedings had to proceed urgently and be heard within weeks rather than months.
5. The earlier injunctions made in the Family Division were discharged because they had apparently been made in the wrong jurisdiction. Equivalent interim injunctions were continued in the judicial review proceedings pending determination of permission, with liberty to the Secretary of State to apply on notice.
6. The judicial review applications were adjourned. The challenge based on unanswered further representations had become practically academic because the Secretary of State undertook not to remove the family before responding and allowing a short period for further proceedings. The challenge concerning policy and the family proceedings also required further consideration.
7. The failure to disclose that removal directions had been set before agreement to adjourn a family hearing was unfair. Fairness is a fundamental principle of public law, and the Secretary of State’s department should have disclosed the information when the adjournment was being considered.