Mbongue & Anor, R (on the application of) v Secretary of State for the Home Department

In an Article 8 removal case, the existence of family life between a natural father and child may be established where the father maintains continuing contact, even if the parents have never lived together. That does not determine proportionality. The assessment remains highly fact-sensitive and must balance the family relationship against effective immigration control. The exceptional approach in C v Secretary of State for the Home Department [2008] UKHL 40 did not apply where the parents had no established family life, had insecure immigration status, and contact between father and child could continue from abroad. The Secretary of State’s decision was therefore not arguably irrational.

This was a renewed application for permission to seek judicial review of removal and human-rights decisions concerning a mother and her infant son. The mother’s asylum and appeal rights had been exhausted. The child’s natural father was an asylum seeker whose application remained undecided.

The Secretary of State had rejected an Article 8 claim, questioned whether family life existed between the child and his father, and concluded that removal would nevertheless be proportionate. The claimants also argued that the child should be treated as the father’s asylum dependent and sought a stay pending determination of the father’s claim.

1. The renewed application for permission was refused. The claim that the child was a dependent accompanying the father was unarguable. Section 77 of the 2002 Act would have prohibited removal if the child were properly included as the father’s dependent, but the request to add him to the asylum claim was made only shortly before the hearing and the facts did not show that he was accompanying the father as principal applicant.

2. There was no arguable family life between the mother and the father. The mother had expressly stated that she was not in a relationship with him. The removal directions would not interfere with the family life between mother and child because they would be removed together.

3. The judge accepted that the relationship between the child and his natural father could attract the presumption of family life where the father continued to have contact with the child. The Secretary of State was therefore wrong to reject family life solely on that basis.

4. That error did not make the decision unlawful. The Secretary of State had considered the position on the assumption that family life existed and had balanced the claimants’ rights against effective immigration control. Given the parents’ lack of secure status, the absence of a pre-existing family relationship, their separate lives, and the possibility of maintaining contact from abroad, it was not arguable that the conclusion was irrational or disproportionate.

5. C v Secretary of State for the Home Department [2008] UKHL 40 was fact-sensitive and concerned circumstances materially different from those before the court. TG (Central African Republic) v Secretary of State for the Home Department [2008] EWCA Civ 997 placed C in that context. The suggestion that removal should be stayed to pressure the Secretary of State to determine the father’s asylum claim was rejected.

6. A stay on removal was nevertheless ordered for 14 days to allow an application to the Court of Appeal.

• High Court (Administrative Court): Silber J refused permission on the papers on 10 March 2008. The renewed application was refused by Wilkie J in the present judgment, subject to a 14-day stay on removal.