Mohan v Secretary of State for the Home Department

Where deportation may affect unresolved family proceedings concerning a child, the immigration tribunal must consider whether the family court’s findings are likely to be material to the proportionality assessment under article 8. The family court is best placed to determine the child’s interests, although its decision does not bind the immigration tribunal.

An immigration appeal need not await the family court where the appellant’s case lacks substance and the public interest makes deportation inevitable. Otherwise, the tribunal should ordinarily adjourn or adopt another procedure which permits the family court’s informed assessment to be considered. A provisional immigration decision will usually be inappropriate in a finely balanced case.

The appellant was a Jamaican national liable to automatic deportation after receiving a sentence exceeding 12 months. He had three daughters in the United Kingdom and had begun unresolved residence proceedings concerning his eldest daughter. The Upper Tribunal accepted that he was a caring father and that the child’s mother was irresponsible, but dismissed his appeal against deportation.

The appellant appealed on the ground that deportation before the family court had determined the child’s best interests would breach article 8. The central issue was whether the Upper Tribunal should have adjourned the immigration appeal, or facilitated a short period of leave, so that the family court’s findings could inform the proportionality assessment.

1. Appeal allowed. The Upper Tribunal materially erred in its treatment of the relationship between the deportation appeal and the unresolved family proceedings. The case was remitted to the Upper Tribunal for reconsideration in accordance with the approach in RS (immigration and family court proceedings) India [2012] UKUT 00218 (IAC).

2. The approaches in RS and Nimako-Boateng (residence orders – Anton considered) [2012] UKUT 00216 (IAC) correctly reconcile automatic deportation with article 8 where family proceedings are contemplated or pending. The immigration tribunal should ask whether the family proceedings are likely to affect the immigration decision; whether compelling public interests require exclusion regardless of their outcome; whether the proceedings may have been brought to frustrate removal; and what existing material indicates about the child’s welfare.

3. A family court treats the child’s welfare as paramount under section 1(1) of the Children Act 1989. In immigration proceedings the child’s best interests are a primary, but not paramount, consideration. They may be outweighed by compelling considerations under article 8(2). Nevertheless, the family court has procedural expertise and investigative resources which ordinarily make it best placed to evaluate the child’s interests. Its reasoned findings may materially, or decisively, inform the immigration tribunal.

4. The Upper Tribunal’s finding that the residence proceedings had been revived to delay or prevent removal was called into question by the evidence. The application pre-dated the appellant’s relevant arrest, his custody explained the lack of progress, and the tribunal had made strongly favourable findings about his relationship with the child and his current partner’s care for her.

5. This was not a case in which deportation was inevitable regardless of the family court’s findings. There was sufficient material for the family court potentially to conclude that residence with the appellant’s household emphatically served the child’s interests. Those findings could and should inform the proportionality assessment.

6. Although an immigration tribunal need not await family proceedings where the appellant’s case lacks substance and the public interest in deportation is overwhelming, that exception did not apply. In an apparently finely balanced case, expressing a provisional view of the immigration appeal will usually be inappropriate. The tribunal must ultimately decide upon the material available at the time of its final decision.

1. Court of Appeal (Civil Division): The appeal was allowed and the case remitted to the Upper Tribunal for reconsideration in accordance with the approved approach to concurrent immigration and family proceedings: [2012] EWCA Civ 1363.

2. Upper Tribunal (Immigration and Asylum Chamber): Having identified an error of law in the First-tier Tribunal’s decision and reheard the appeal, it dismissed the appeal on 15 August 2011.

3. First-tier Tribunal: It dismissed the appeal against the automatic deportation order on 13 October 2010.