MS (Ivory Coast) v Secretary of State for the Home Department

On an appeal against a refusal of leave to enter, the tribunal must decide whether a hypothetical removal at the hearing date would breach Article 8. A present undertaking not to remove a person while family proceedings continue cannot displace that duty. The inquiry must be decided on the known current circumstances, without speculation about a later change in facts. If removal would be unlawful under Human Rights Act 1998, the appeal succeeds and appropriate leave must be granted, normally discretionary leave which may be short. Temporary admission cannot replace that status merely because removal is deferred.

The appellant challenged an effective refusal of leave to enter. An adjudicator had allowed her appeal on Article 8 grounds because removal would prevent her from pursuing contact proceedings concerning her children. Following reconsideration, the Asylum and Immigration Tribunal dismissed the appeal. It held that the Secretary of State's undertaking not to remove her while the contact proceedings were pursued adequately protected her Article 8 rights.

The appeal concerned whether the tribunal nevertheless had to determine the legality of a hypothetical removal while the contact application remained outstanding, and whether a successful human-rights appeal required a grant of leave rather than continued temporary admission.

1. Appeal allowed and remitted. The tribunal failed to decide the question imposed by section 84(1)(g) of the Nationality, Immigration and Asylum Act 2002: whether removal in consequence of the refusal of leave to enter would, at the hearing date, violate Article 8 and therefore be unlawful under section 6 of the Human Rights Act 1998.
2. The authorities, including Ravichandran v Secretary of State for the Home Department [1996] Imm A.R. 97, Saad & Ors v Secretary of State for the Home Department [2002] INLR 34, and JM v Secretary of State for the Home Department [2006] EWCA Civ 1402, required the tribunal to determine the hypothetical removal at the hearing date. That requirement applied equally to a human-rights claim. The Secretary of State's assurance that removal would not occur pending the contact proceedings did not answer the statutory question.
3. The hypothetical inquiry concerned known existing facts, including the outstanding contact application. It did not require speculation about possible future changes, such as the appellant's mental health after an unknown outcome in the family proceedings. GH v Secretary of State for the Home Department [2005] EWCA Civ 1182 and Gedow and Others v Secretary of State for the Home Department [2006] EWCA Civ 1342 were distinguishable because they concerned unknown future modes of return.
4. If the tribunal found an Article 8 breach, it had to allow the appeal. As explained in S v Secretary of State for the Home Department [2006] EWCA Civ 1157, temporary admission could not replace the leave to which a successful human-rights appellant was entitled. Appropriate discretionary leave could be brief and could later be extended if circumstances warranted.
5. The court expressed no view on the Article 8 merits. It remitted the matter to the tribunal to decide the up-to-date position in the contact proceedings and, if the appellant succeeded, the appropriate period of discretionary leave.

• Court of Appeal (Civil Division) Allowed the appeal and remitted the case to the Asylum and Immigration Tribunal: [2007] EWCA Civ 133.
• Asylum and Immigration Tribunal On 9 May 2006, dismissed the Secretary of State's appeal position on the basis that an undertaking not to remove the appellant pending contact proceedings adequately protected her Article 8 rights.
• Adjudicator On 27 July 2004, allowed the appellant's appeal on Article 8 grounds, while rejecting the other grounds.