Vanessa Nimako-Boateng & Anor v The Secretary of State for the Home Department

A residence order or prohibited steps order under section 8 of the Children Act 1989 does not bind the Secretary of State when exercising immigration powers. Family-court decisions about a child’s welfare are important evidence in an immigration appeal, but their weight depends on the quality and relevance of the material supporting them.

In an Article 8 assessment, a child’s best interests are a primary, not paramount, consideration. They may be outweighed by compelling factors within Article 8(2), including effective immigration control. A claim that removal will disrupt valuable contact with a parent or relative requires clear and reliable evidence of that contact and its importance to the child’s welfare.

The first appellant, a Ghanaian national, and her daughter IA appealed from Immigration Judge Hanratty’s dismissal of their appeal against the refusal of a document confirming a permanent right of residence under the Immigration (European Economic Area) Regulations 2006. The permanent-residence claim was abandoned. The appellants instead contended that their proposed removal to Ghana would breach Article 8.

IA was the subject of a prohibited steps order and a residence order made in family proceedings between her parents. Permission to appeal was granted on whether those orders made removal disproportionate. The appeal also raised the assessment of IA’s best interests and the effect of removal on her relationship with her father.

1. Appeal dismissed. The First-tier Tribunal had made no error of law in concluding that the Article 8 claim failed.

2. Applying R (Anton) v SSHD [2004] EWHC 2730 (Admin/Family), neither the prohibited steps order nor the residence order bound the Secretary of State. The prohibited steps order was directed to IA’s father. The residence order did not prevent an immigration decision in principle that the appellants could be removed, particularly where no removal decision had then been made. If necessary, the family order could be varied before removal.

3. The Tribunal nevertheless held that properly reasoned family-court decisions and their supporting material may be important, and sometimes decisive, evidence in an immigration judge’s Article 8 assessment. Family courts are particularly well placed to investigate and evaluate a child’s interests. Here, however, the orders supplied no useful material because they had been obtained against a false factual background and appeared to have been sought principally for use in the immigration appeal.

4. Under section 55 of the UK Borders Act 2009 and ZH (Tanzania) [2011] UKSC 4, IA’s best interests were a primary consideration. They were not paramount in immigration proceedings and could be outweighed by the public interests identified in Article 8(2). The judge had carefully considered IA’s welfare and was entitled to find that her best interests lay in remaining with her mother, including in Ghana. Her residence in the United Kingdom throughout childhood and attendance at school did not, without more, require that she remain.

5. The mother had not produced reliable evidence that IA enjoyed an existing and valuable pattern of contact with her father which removal would disrupt. An appellant advancing such an Article 8 claim should provide clear and reliable evidence. The burden of establishing the Article 8 case remained on the appellant, notwithstanding the respondent’s section 55 duty.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellants’ appeal for want of an error of law in Immigration Judge Hanratty’s determination.
• First-tier Tribunal: Immigration Judge Hanratty, on 10 November 2010, dismissed the appeal against the refusal of a permanent-residence document and rejected the Article 8 contention.