MH v The Secretary of State for the Home Department

Where a parent is pursuing current family proceedings for contact with a child, removal may breach European Convention on Human Rights, article 8. Removal can prejudge the contact application and prevent meaningful participation in proceedings needed to develop family ties.

The Tribunal should not ordinarily keep the immigration appeal pending by repeated adjournments. Where article 8 would otherwise be breached, the usual course is to allow the appeal on that ground. The Secretary of State will normally grant an appropriate short period of discretionary leave while the family proceedings are resolved.

MH v The Secretary of State for the Home Department concerned a Moroccan national whose spouse leave was curtailed after the breakdown of his marriage. He accepted that he could not meet the Immigration Rules, but sought to remain while pursuing family proceedings for contact with his British daughter.

An Immigration Judge dismissed the appeal after refusing an adjournment pending the contact proceedings. Permission to appeal was granted on the basis that the refusal to adjourn arguably disclosed a material error of law. Before the Upper Tribunal, the respondent conceded material error and accepted that the appeal could be allowed under article 8.

1. The appeal was dismissed under the Immigration Rules but allowed under article 8 of the European Convention on Human Rights. The Immigration Judge had materially erred in refusing to adjourn, and in failing to apply the guidance in MS (Ivory Coast) v SSHD [2007] EWCA Civ 133.

2. A pending application for contact with a child was highly relevant to the article 8 assessment. Removal during those proceedings could prejudge their outcome and deny the parent meaningful participation. That risk was especially acute because the appellant's ability to work and retain accommodation could affect the family court's consideration of contact.

3. The Immigration Judge wrongly treated the appeal as confined to the curtailment decision and wrongly proceeded on the assumption that a later removal decision would necessarily afford a further appeal. This was a one-stop appeal in which the human-rights issues had to be determined.

4. The Tribunal had power to adjourn and there was authority supporting an adjournment. The Immigration Judge gave inadequate reasons for refusing it and failed to engage with material submissions, evidence and authority concerning articles 6 and 8.

5. Rather than stay the appeal, the proper course was to allow it under article 8. An appropriate period of discretionary leave would normally follow so that the appellant could participate fully in the family proceedings. If contact were obtained, he could then apply for further leave under paragraph 248A of HC 395.

• Upper Tribunal (Immigration and Asylum Chamber): found a material error of law in the Immigration Judge's determination, set it aside in substance, and re-determined the appeal by allowing it under article 8.

• Immigration Judge: dismissed the appeal following refusal of an adjournment pending family contact proceedings.