24 Oct 2016, 47 mins ago

Immigration analysis: When will the court order the return of a child to the UK who has been unlawfully removed? Lee Jackson, barrister at Gherson Solicitors, says a recent case restates the central importance of the Secretary of State for the Home Department’s (SSHD) statutory duty to treat the best interests of the child as a primary consideration.

Original news

RA (a child) and BF v SSHD

What were the background and key issues in this case?

The Upper Tribunal, chaired by Cranston J, granted an application for judicial review on the basis that the Home Office had breached its duties under the Borders Citizenship and Immigration Act 2009, s 55 (BCIA 2009) by failing to take account of the best interests of the child in deciding a fresh human rights claim made by the mother. Extraordinarily, the tribunal ordered it to bring the claimants back to the UK by 23 April 2015.

The applicants were BF, a 45-year old Nigerian single mother, and her child, RA, who was born in 2009. BF had made an unsuccessful application for asylum and humanitarian protection on the basis that she feared persecution and ill-treatment on return to Nigeria in 2010. Her claim made reference to the fact that she would be rejected as a mother with an illegitimate child. Her application was refused and she unsuccessfully appealed against that decision. RA was her dependant in that appeal and the immigration judge found that it would be proportionate to remove BF and RA to Nigeria.

The SSHD refused to treat a series of representations by BF’s then-representatives from 2012 onwards as a fresh claim. During this period of time, BF experienced mental health problems which, at one point, resulted in her hospitalisation and RA being put into foster care. After BF was discharged from hospital, RA was not returned to her care for some four months, indicating that there was a high level of safeguarding concerns. In October 2013, a supervision order was made in favour of the local authority for one year, and the SSHD decided not to remove BF and RA while that order was in place.

Following the expiry of the supervision order, the SSHD started making arrangements for the family’s removal, and BF and RA were detained on 20 January 2015. On 22 and 23 January, BF’s solicitors made further representations which referred to the risk of deterioration in her mental health if removed, and the effect this would have on RA. They added that BF was likely to become destitute and this would create an additional European Convention on Human Rights, art 3 (ECHR) risk to RA. These representations were rejected and BF and RA were removed to Nigeria on 23 January.

Fortunately for BF and RA, they had made many friends while in the UK, including RA’s former foster carer. She not only managed to get the British High Commission to provide financial assistance upon BF’s and RA’s arrival in Nigeria, but also provided financial support to them personally, and from funds raised by the local Gateshead Community, and arranged medical care for BF. One can easily imagine that, had it not been for this assistance, BF and RA might simply have slipped off the radar and been unable to pursue their judicial review claim. This continuing contact also meant that when it came to the judicial review hearing, there was evidence before the tribunal of the deterioration in the family’s situation since their return to Nigeria.

What did the tribunal decide?

The Upper Tribunal rejected arguments made on the claimants’ behalf that RA had made a separate claim in his own right which should have been identified by the Secretary of State, even though it had not been expressly advanced. Having found that RA had not made a separate claim, the tribunal then also rejected the argument that RA had an in country right of appeal against the refusal of this claim.

However, the tribunal found that in refusing to treat BF’s representations as a fresh claim, the Home Office’s decision letters failed to show that it had treated the best interests of RA as a primary consideration, as required by BCIA 2009, s55. In particular, the letters did not address the risks associated with any decline of BF’s mental health for RA’s future in Nigeria. The tribunal therefore found that the decision to refuse to treat the representations as a fresh claim was flawed.

Following the judgment, the tribunal ordered the SSHD to secure the return of BF and RA from Nigeria. It found that there were three factors which tipped the balance in favour of it exercising its discretion to order return:

o first, this was a case involving a child

o second, it took account of the evidence of the deteriorating mental health of BF post-removal, which raised concerns about RA’s position

o third, it considered that there was likely to be further delay if the Home Office’s decision on the fresh claimwas unfavourable because there would be a further challenge and delay beyond thatThe Tribunal stressed that its decision was finely balanced.

An urgent application by the Home Office to appeal to the Court of Appeal was refused by McCombe LJ.

What is the significance of this decision?

The decision is significant for a number of reasons. First, after hearing submissions from both the family’s representatives and on behalf of the Office of the Children’s Commissioner, the tribunal accepted that even where no separate claim has been expressly advanced on behalf of a child, the circumstances may be such as to warrant independent treatment. Whether the Secretary of State must identify a separate claim will be fact-sensitive.

Although on the facts of this case, the tribunal found that the SSHD had not acted irrationally or unlawfully in not treating the various representations as advancing a separate claim for RA, it is clear that the tribunal considered that in a situation where the interests of the parent and child were in conflict, the onus could well be on the SSHD to identify the claim–even if a separate claim had not been specifically made.

Secondly, the case restates the central importance of the duty of the SSHD under BCIA 2009, s 55 to treat the best interests of the child as a primary consideration.

The SSHD had gone to significant lengths to ensure that the process of removal took account of RA’s best interests, including by contacting the local authority and RA’s school, and postponing removal until the supervision order was discharged, and had even involved the Office of the Children’s Champion. Despite this, the SSHD’s decision letters failed to address the risks associated with any decline of BF’s mental health for RA’s future in Nigeria.

Finally, the case provides a rare example of a situation where the courts will order the return of claimants who have unlawfully been removed. This is certainly significant in the context of the proposed ‘deport first, appeal later’ regime (or non-suspensive appeals, as they are properly known) which, according to the Conservative Party’s manifesto, is intended to apply to ‘all immigration appeals and judicial reviews, including where a so-called right to family life is involved, apart from asylum claims’.

The ‘deport first, appeal later’ regime was introduced by the Immigration Act 2014 with respect to foreign criminals. By January 2015, the government proclaimed that nearly 800 foreign criminals were being ‘kicked out’ as the measures introduced in July 2014 started to have an impact. The regime allows the SSHD to certify a human rights claim, made by a person liable to deportation following criminal conviction or on conducive to the public good grounds, to the effect that removal pending the outcome of an appeal would not be unlawful under the Human Rights Act 1998. The effect of certification is thus to presume that an appellant’s human rights will not be violated by removal before a court has the opportunity to determine the question.

The proposed extension of the ‘deport first, appeal later’ regime to all appellants and claimants except in asylum cases therefore gives rise to the prospect that a large number of vulnerable people will face removal before the courts can consider the merits of their human rights claims.

In that context, the decision in RA is especially welcome because it reminds the Home Office of its duty to consider the best interests of the child before removal and of the need to fully take account of the circumstances the child will face in their home country.

What should lawyers take from this decision?

The case should also act as a reminder to representatives of the importance of putting their clients’ cases to the Home Office in the most appropriate way when removal will have differing effects upon their clients. A central reason why the tribunal did not accept that RA had a separate claim (and therefore a separate in country right of appeal) was because of the way in which his previous solicitors had put his case to the Home Office, which was very much as a dependant of his mother rather than as a separate applicant.

Furthermore, in granting the application to order BF’s and RF’s return, the tribunal commented that if the claimants’ previous solicitors had applied for judicial review with an application for immediate consideration at the time of the removal, then it may well have been that the removal would have been prevented by the grant of interim relief. This could have spared the family the distress caused by their removal.

Interviewed by Nicola Laver. he views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on LexisNexis.