RS v The Secretary of State for the Home Department

Where parallel family and deportation proceedings concern a child, the immigration tribunal should identify the child’s best interests before undertaking the Article 8 balance. A final family-court assessment, made with the child’s interests as the paramount consideration, may provide an authoritative basis for that assessment.

Where the family court has determined that the child’s permanent welfare lies in foster care rather than parental care, and has made contact arrangements that contemplate deportation, removal of a parent will not necessarily interfere with the child’s best interests. Residual face-to-face and remote contact may be sufficient, despite the public interest in deportation.

The appellant challenged his deportation under Article 8 on the basis of his relationship with his child, H. In an earlier ruling, RS (immigration and family court proceedings) India [2012] UKUT 00218 (IAC), the Tribunal adjourned the appeal pending family proceedings concerning H.

The family court subsequently made a final care order. Its care plan placed H in long-term foster care, provided for monthly Skype contact and annual funded visits to India if the appellant were deported, and did not contemplate reunification with her parents. The issue was whether those findings altered the proportionality of deportation under Article 8.

1. Appeal dismissed. The Tribunal re-made the appeal by dismissing it. The appellant’s deportation was not unlawful on human-rights grounds.

2. Before conducting the Article 8 balance, the Tribunal had to identify H’s best interests. Those interests were a primary consideration in immigration decision-making, but the Tribunal lacked the family court’s specialist resources, including independent guardians and social-work investigations. It was therefore entitled to proceed on the authoritative assessment in the final care proceedings.

3. The final care order and care plan established that H’s welfare lay in a permanent long-term foster placement, not in a future return to parental care. Although the order did not legally sever the parental relationship, the family court, local authority and guardian regarded removal from parental care as permanent. The plan had also expressly contemplated the appellant’s deportation and provided for annual direct contact in India and monthly Skype contact.

4. Because the family court found those arrangements consistent with H’s best interests while treating those interests as paramount, the Tribunal could find that deportation did not interfere with them when treating them as a primary consideration. The difference between direct contact and three hours of Skype contact each month did not outweigh the public interest in deportation.

5. The Tribunal emphasised the importance of co-operation and information-sharing where closely connected family and immigration proceedings run in parallel. The earlier indication of the likely immigration consequence had enabled the family court to shape a care plan which addressed that consequence.

• Upper Tribunal (Immigration and Asylum Chamber): In RS (immigration and family court proceedings) India [2012] UKUT 00218 (IAC), the Tribunal adjourned the deportation appeal pending the family court’s determination of H’s welfare. Following the final care order, this determination re-made the appeal and dismissed it.