The Secretary of State for the Home Department v CJ

Unresolved Family Court proceedings concerning contact with children may make removal of a foreign criminal disproportionate under Article 8. The established guidance on pending family proceedings remains compatible with Nationality, Immigration and Asylum Act 2002, Part 5A.

Where Article 8 requires the appellant to remain until those proceedings conclude, that will ordinarily amount to very compelling circumstances under section 117C(6). The appeal should be allowed on that basis. A tribunal may not allow an appeal to a limited extent or direct discretionary leave, because section 87 has been repealed. Implementation, including the duration of leave needed, is for the Secretary of State.

The Secretary of State appealed against the First-tier Tribunal’s decision allowing CJ’s appeal against refusal of his human-rights claim. CJ, a South African national liable to automatic deportation following convictions for serious offences, had begun Family Court proceedings seeking increased contact with his children.

It was common ground that the Secretary of State would not remove him while those proceedings remained unresolved. The First-tier Tribunal found that the proceedings were genuine and that removal before their outcome might breach Articles 6 and 8. It allowed the appeal on the footing that discretionary leave would be granted pending the Family Court’s decision.

The Upper Tribunal considered how the pending-family-proceedings authorities operate after Part 5A of the Nationality, Immigration and Asylum Act 2002, and whether the First-tier Tribunal had made a material error by failing expressly to apply section 117C, VC (Sri Lanka) and RS (immigration and family court proceedings) India.

1. Appeal dismissed. The First-tier Tribunal made no material error of law. It was entitled to find that removal before resolution of the genuine contact proceedings would be disproportionate under Article 8.

2. The approach in MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133, MH (pending family proceedings-discretionary leave) Morocco [2010] UKUT 439 (IAC), and RS (immigration and family court proceedings) India [2012] UKUT 00218 (IAC) remains applicable. Part 5A does not prevent a tribunal from considering whether an appellant must remain to prosecute Family Court proceedings. The relevant RS questions must be addressed, save for its former question concerning a limited allowance of the appeal and a direction for discretionary leave.

3. Where those considerations establish an Article 8 right to remain until the family proceedings conclude, they are capable of constituting very compelling circumstances over and above Exceptions 1 and 2 under section 117C(6) of the Nationality, Immigration and Asylum Act 2002. The tribunal should normally allow the appeal expressly on that statutory basis. The assessment is fact-sensitive and does not mean that every foreign criminal with pending contact proceedings must remain.

4. Following repeal of section 87 by the Immigration Act 2014, an appeal under Part 5 may only be allowed or dismissed. The tribunal cannot allow it to a limited extent or direct the Secretary of State to grant discretionary leave. It may observe that Article 8 is likely to require leave only long enough for the Family Court proceedings to be determined; implementation remains for the Secretary of State.

5. The Secretary of State’s undertaking not to remove CJ did not remove the need to determine his Article 8 claim. Nor did VC (Sri Lanka) govern: that case concerned final family proceedings and an adoption placement, whereas CJ’s contact proceedings remained live. The judge was entitled not to speculate about the eventual contact arrangements or prematurely determine whether the statutory exceptions would ultimately apply.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed. The First-tier Tribunal’s decision was upheld.
• First-tier Tribunal: Judge O’Hanlon allowed CJ’s appeal against refusal of his human-rights claim, finding that removal during pending Family Court contact proceedings might breach Articles 6 and 8.