JG (Jamaica) v Secretary of State for the Home Department

Article 8 removal assessments must consider the family life of persons sharing family life with the person facing removal directly, rather than only through the effect on the applicant. Separate family relationships must be kept distinct. A tribunal cannot assess disruption to a child’s relationship with a non-residential parent through the separate question whether that parent has a current relationship with the applicant. Applying the approach identified in Beoku-Betts [2008] UKHL 39, the court held that the proposed challenge to the reconsideration decision was arguable and granted permission. The court provisionally indicated that it could discern no error in the first Immigration Judge’s determination requiring renewed reconsideration, but it did not finally decide whether that determination should be restored.

The applicant, a Jamaican national living in the United Kingdom, challenged her proposed removal with her young son under Article 8. Immigration Judge Flynn allowed her appeal on the basis that removal would severely disrupt the son’s unusually significant relationship with his non-residential father.

On reconsideration, Senior Immigration Judge Eshun set aside that decision and dismissed the appeal. The applicant sought permission to appeal. The Secretary of State conceded that amended grounds should attract permission, but the parties disagreed whether the matter should be remitted for renewed reconsideration or whether the first decision should be restored. The central issue was whether the Senior Immigration Judge had lawfully assessed the family life of the child and his father.

1. Permission granted. The Secretary of State conceded that the amended grounds should attract permission. The parties did not agree on the ultimate disposal of the appeal, and the court therefore addressed the arguability of the proposed legal challenge.
2. The original Immigration Judge had allowed the appeal under Article 8 of the European Convention on Human Rights 1950, focusing on the effect of removal on the relationship between the child and his father. In the light of Huang (FC) v SSHD; Kashmiri (FC) v SSHD [2007] UKHL 11, she had considered that success did not require the case to be placed in an exceptional category.
3. The approach in Beoku-Betts (FC) v SSHD [2008] UKHL 39 permits the position of persons sharing family life with the person facing removal to be considered directly, rather than only indirectly through the effect of removal on that person. The Senior Immigration Judge’s determination, read as a whole, appeared to assess the effect on the child through its impact on the applicant. It also commingled the disruption of the child’s relationship with his father with the separate absence of a current relationship between the applicant and the father.
4. The court therefore considered the amended challenge arguable. In a provisional postscript, it stated that it had difficulty identifying an error of law in the original Immigration Judge’s determination that would justify renewed reconsideration by the tribunal. The court had not seen the Secretary of State’s proposed arguments and did not finally restore the original determination. The formal order was that the application be granted.

• Court of Appeal (Civil Division): On 2 September 2008, permission to appeal was granted. The court did not finally determine whether the original Immigration Judge’s decision should be restored or the matter remitted.
• Asylum and Immigration Tribunal: Senior Immigration Judge Eshun, on 27 February 2008, set aside Immigration Judge Flynn’s decision and dismissed the applicant’s appeal on reconsideration.
• Asylum and Immigration Tribunal: Immigration Judge Flynn, on 6 September 2007, allowed the applicant’s Article 8 appeal.