The Secretary of State for the Home Department v GD (Ghana) (Rev 1)

A family-court residence order is not an immigration-status instrument and does not prevent the Secretary of State from exercising removal or deportation powers. Its legal effect must be correctly understood and cannot be treated as determinative of an Article 8 assessment. A tribunal deciding whether deportation is proportionate must identify and weigh the strong public interest in deporting foreign criminals against all countervailing factors. A possible voluntary relocation by family members may require careful examination, particularly where they share the relevant nationality and close family and cultural links. A decision materially based on a non-existent or misunderstood order, and failing to analyse a potentially significant relocation option, cannot stand.

The respondent, a Ghanaian national, was convicted of causing or allowing the death of a child and sentenced to three years’ imprisonment. The Secretary of State made a deportation order under the statutory foreign-criminal regime. The First-tier Tribunal allowed her Article 8 appeal, relying substantially on a residence order concerning her three remaining children. The Upper Tribunal dismissed the Secretary of State’s appeal and, alternatively, remade the decision on the same evidence.

The Secretary of State appealed to the Court of Appeal. The central issues were whether the residence order remained in force, what legal effect it had, and whether the Upper Tribunal had properly weighed the public interest in deportation against the family’s Article 8 rights, including the possibility that the partner and children could return voluntarily to Ghana.

1. Appeal allowed and case remitted. The First-tier Tribunal’s decision was vitiated by a serious error of law because the supposed existence and effect of the residence order were central to its conclusion. The order had ceased to have effect by 24 October 2013 under section 11(5) of the Children Act 1989, after the parents resumed living together for more than six months.
2. The tribunals misunderstood the order. It had not automatically conferred parental responsibility on the father, who already had it through his marriage to the respondent. While in force, it required the consent of the persons with parental responsibility, or the court’s leave if they did not consent, for removal of the children from the jurisdiction for more than one month. It neither itself prevented relocation to Ghana nor gave the children a right to remain in the United Kingdom or altered their immigration status.
3. The Upper Tribunal’s own decision could not stand. It gave significant weight to the non-existent order and did not clearly analyse the potentially important option of the partner and children voluntarily returning to Ghana. In a case involving the very strong public interest in deporting foreign criminals, the tribunal must identify and analyse the countervailing factors so that the weight assigned to that public interest is clear. The family’s Ghanaian nationality and strong family and cultural links made voluntary return a matter requiring careful examination.
4. The Upper Tribunal had referred to MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 and the need for something very compelling to outweigh the public interest in deportation. The error was not merely failure to repeat that principle, but failure to carry out the necessary assessment on a legally accurate factual basis.
5. In additional concurring observations, the President of the Family Division stated that family-court orders do not bind or restrict the Secretary of State’s immigration powers, although they are relevant matters which must be taken into account. The same principle applies to child arrangement orders.

• Court of Appeal (Civil Division) — appeal from the Upper Tribunal allowed. The Upper Tribunal’s decision was set aside and the case was remitted to a freshly constituted First-tier Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber) — the Secretary of State’s appeal was dismissed in a decision issued on 13 May 2014.
• First-tier Tribunal — the respondent’s appeal against the deportation order was allowed in a decision issued on 11 February 2014.