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

Where an immigration tribunal has lawfully found that removal will not disproportionately interfere with the applicant’s or children’s Article 8 rights, the applicant has no automatic entitlement to limited leave merely to pursue contact proceedings in the United Kingdom. The principle in MS (Ivory Coast) [2007] EWCA Civ 133 presupposes an established Article 8 entitlement to remain for a defined purpose. It does not apply where that underlying entitlement is absent. A tribunal may make a reasoned assessment of the likely course and prospects of contact proceedings. That assessment is not impermissible speculation. A separate Article 8 issue may arise where entry is sought solely to attend contact proceedings.

The appellant, a Jamaican national, sought to resist removal so that he could pursue contact proceedings concerning his two young daughters in the United Kingdom. The Asylum and Immigration Tribunal had found that removal would not disproportionately interfere with the appellant’s or his daughters’ Article 8 rights, taking account of his immigration history and the likely course of the contact dispute.

On appeal, the appellant argued that he should nevertheless receive limited discretionary leave to remain or enter pending the contact proceedings. Permission was granted on that discrete issue, notwithstanding the absence of an Article 8 obstacle to removal. The central question was whether the principle in MS (Ivory Coast) applied where no Article 8 entitlement to remain had been established.

Appeal dismissed. Lord Justice Sedley gave the judgment, with Lord Justice Waller and Sir David Keene agreeing.

1. The appeal was concerned with whether the appellant was entitled to limited leave to remain in order to pursue contact proceedings. The tribunal had conducted a careful Article 8 assessment and had found that removal would not be disproportionate. Section 6 of the Human Rights Act made compliance with Article 8 a legal obligation, but the case did not fall within the policy category where leave was required to discharge that obligation.
2. The appellant relied on MS (Ivory Coast) [2007] EWCA Civ 133, said to be based on Ciliz v The Netherlands [2002] ELR 469. MS concerned the unacceptability of leaving a person in limbo by granting temporary admission and promising not to remove them while contact proceedings were determined, where an Article 8 entitlement to remain for a specified purpose had been established. That principle did not apply where the tribunal had found no disproportionate interference with Article 8 rights.
3. The court rejected reliance on factual comparison with MS. Issues of law were not decided by comparing immigration histories. The tribunal was also entitled to assess the likely development of the contact proceedings. Its assessment of the resistance to contact, the likely duration and prospects of the dispute, and the possibility of pursuing proceedings from abroad was a sensible evidential forecast, not illicit speculation.
4. The court noted that a separate Article 8 issue might arise if the appellant sought entry solely to attend the contact proceedings and no satisfactory alternative means of participation existed. The Home Office would need to consider that issue carefully if asked. If contact were granted, Rule 246 of the Immigration Rules would be engaged, subject to its qualifying criteria. The order was: appeal dismissed.

1. Court of Appeal (Civil Division) The appeal was dismissed on 10 February 2010. [2010] EWCA Civ 207.
2. Asylum and Immigration Tribunal Immigration Judge Easterman dismissed the appellant’s appeal in January 2009. A reconsideration was ordered because of an error of law. Senior Immigration Judge Latter reconsidered the case and again dismissed the appeal after finding that removal was not disproportionate under Article 8.

Goldring LJ initially refused permission to appeal. On renewal, Elias LJ granted permission on the discrete issue concerning limited leave to pursue contact proceedings.