RS v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Where deportation or removal coincides with unresolved family proceedings concerning a child, the immigration tribunal must assess whether the family outcome will materially affect the immigration decision, whether compelling public interests require exclusion regardless of that outcome, and whether contact proceedings are genuine.

The tribunal must then decide whether Article 8 requires temporary lawful residence pending the family decision, whether limited discretionary leave should be directed, or whether a short adjournment is more suitable. There is no universal entitlement to discretionary leave. The child’s best interests are a primary consideration, but the seriousness and circumstances of offending remain relevant to proportionality in an automatic-deportation case.

The appellant, an Indian national who had overstayed, appealed against an automatic deportation order made after his conviction for possessing a false identity document. His British wife and British daughter, H, relied on family life. H had been the subject of long-running care proceedings after concerns about neglect and domestic abuse.

The First-tier Tribunal allowed the appeal on Article 8 grounds. A Deputy Upper Tribunal Judge set that decision aside and dismissed the appeal. The Court of Appeal later set aside that remade decision by consent, particularly in light of ZH (Tanzania) [2011] UKSC 4.

The central issue was how an immigration appeal should proceed where the family court had yet to decide whether H would return to her parents or be permanently separated from them.

1. The appeal was further adjourned. The Tribunal treated this as a ruling and directions, rather than a final determination. The imminent family-court decision was likely to be decisive and the parties agreed that a short further adjournment was appropriate.
2. Where a deportation or removal appeal overlaps with family proceedings, the immigration judge should ask whether the family outcome is material, whether compelling public interests require exclusion regardless of that outcome, and whether proceedings initiated for contact appear designed to delay removal rather than advance the child’s welfare. Relevant matters include the claimant’s prior contact with the child, the timing and progress of the proceedings, their likely duration, and available welfare material.
3. The judge must then decide whether Article 8 requires the claimant to remain until the proceedings conclude, whether a limited appeal and discretionary leave are appropriate, or whether case management by adjournment is preferable. MS (Ivory Coast) [2007] EWCA Civ 133 establishes that a person with an established Article 8 entitlement should not be left in immigration limbo on temporary admission. But, following DH (Jamaica) [2010] EWCA Civ 207, unresolved family proceedings do not themselves create that entitlement.
4. Automatic deportation under UK Borders Act 2007 section 32 does not mean that every Article 8 claim is necessarily outweighed once the statutory sentence threshold is met. Proportionality requires an assessment of the seriousness and circumstances of the offence, the parties’ nationality and immigration status, the reasonableness of relocation, and obstacles to family life abroad.
5. The Tribunal gave provisional guidance for the family court. If H were permanently separated from her parents, deportation would not be disproportionate on the facts then known. If H were restored to parental care, deportation would provisionally be disproportionate because her welfare, as a British child needing continuing local-authority and family-court supervision, would be a primary consideration and the appellant’s offending did not require expulsion regardless of its effect on the family.

The Tribunal directed notification of the family-court outcome, written submissions within 28 days, and a final determination thereafter.

• Upper Tribunal (Immigration and Asylum Chamber): This ruling further adjourned the appellant’s deportation appeal pending the family court’s decision.
• Court of Appeal: The remade Upper Tribunal decision dismissing the appeal was set aside by consent on 8 March 2011, particularly in light of ZH (Tanzania) [2011] UKSC 4.
• Upper Tribunal (Deputy Judge): The First-tier Tribunal’s decision was set aside for material error of law and the appeal was remade against the appellant.
• First-tier Tribunal: Allowed the appellant’s appeal against deportation on 26 March 2010 under Article 8.