Family orders and removing children from the UK

Which family orders prevent the removal of children from the United Kingdom? Laurence Saffer looks at this difficult issue and analyses how human rights affect such cases.

Whether care orders prevent removal is a vexed question and one on which I have been asked to advise many times. The simple answer is that no order made in a family court can prevent the Secretary of State for the Home Department (SSHD) issuing removal directions in relation to any foreign national subject to immigration control (Re A (children)(care proceedings: asylum seekers) [2003] EWHC 1086).

The same fundamental principles apply whether the court is exercising its private law powers, its public law powers, the wardship jurisdiction, or its inherent jurisdiction in relation to children recognised and to an extent regulated by section 100 of the Children 1989. Proceedings under the Adoption Act 1976 apart, whatever jurisdiction he may be exercising a judge of the Family Division can no more than a judge of the County Court or a Family Proceedings Court make an order which has the effect of depriving the SSHD of his power to remove a child or any other party to the proceedings.

The court when exercising its powers under the 1989 Act is not entitled to have regard to immigration policy. It must be guided by the interests of the child. If, apart from immigration questions, there is no genuine dispute concerning the child, then the court must not allow itself to be used as a means of influencing the decision of the SSHD. Indeed, the use of the court's jurisdiction merely to attempt to influence the SSHD is an abuse of process.

The Asylum and Immigration Tribunal (AIT) authority on this – (BE (Care Proceedings) Jamaica [2005] UKIAT 000980 – has the same view that the care and the immigration proceedings should be treated as concurrent and independent. Some of the considerations or evidence may overlap, but they are viewed from different perspectives. Each must proceed at its own timetable. If Care Orders override immigration decisions, then they can be invoked to prevent removal; and if not, not.

Does Wardship prevent removal?

Wardship does not prevent removal (Re A (a minor) (Wardship : immigration) [1992] 1FLR 427). It simply means that leave of the court is required before a child can be removed. The SSHD is required to take into account the existence of the family court orders (R v SSHD ex parte T [1995] 3FCR1).

In cases where the power of the judge in Wardship and the power of the SSHD interfaced, it was highly desirable that there should be communication and collaboration between the two powers (In the matter of F (Children) [2008] EWCA Civ 842).

The SSHD should therefore be invited to be involved and express a view as to his intentions and the local authority should apply for permission for a child in its care to remain in the UK if it considers it is in the child’s best interest to do so. The stated SSHD view is that decisions about the future of children in the care of the local authority should be left primarily in the hands of their social services department as they will be best placed to act in the child’s interests (IDI, Chapter 8, s3, annex M, para 8).

What about adoption?

This does prevent removal (R v SSHD ex parte T [1995] 3FCR1) as it alters the status of the child. This can have the effect of conferring upon the child a right of abode which makes it immune from removal.

What about human rights?

The interests of family life would not usually prevail over the interests of immigration control (MT (Zimbabwe) v SSHD [2007] EWCA Civ 455; AG (Eritrea) v SSHD [2007] EWCA Civ 801).

There are numerous cases which consider the legallity of removing an individual from the United Kingdom which can be summarized below. The questions to address in relation to Article 8 of the European Convention on Human Rights (the right to respect for private and family life) are:

• Will the proposed removal interfere with the exercise of the appellant’s right to respect for his private or family life?
• If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
• If so, is such interference in accordance with the law?
• If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
• If so, is such interference proportionate to the legitimate aim to be achieved?

In an Article 8 case where the question of proportionality was reached, the ultimate question was whether the refusal of leave to enter or remain in circumstances where the life of the family could not reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudiced the family life of the claimant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. If the answer to that question was in the affirmative, the refusal was unlawful (Razgar v SSHD [2004] UKHL 27).

Only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad (Chikwamba v SSHD [2008] UKHL 40). The effect on other family members with a right to respect for their family life with the applicant must also be taken into account (Beoku-Betts v SSHD [2008] UKHL 39).

The removal of a person from a country where close members of his family were living might amount to a breach of Article 8. In this context, the factors to be taken into account were the extent to which family life was effectively ruptured, the extent of the ties in the Contracting State, whether there were insurmountable obstacles for the family to live in their country of origin, whether there were factors of immigration control or public order that weighed in favour of exclusion, and whether family life was created at a time when the persons involved were aware that the immigration status of one of them was precarious. Where this was the case the removal of the non-national family member would be incompatible with Article 8 only in exceptional circumstances (Y v Russia (Application no. 20113/07) ECtHR (First Section)).

In an Article 8 case where the question of proportionality was reached, the ultimate question is whether the refusal of leave to enter or remain in circumstances where the life of the family could not reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudiced the family life of the claimant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8 (Huang and Kashmiri v SSHD [2007] UKHL 11).

The crucial question in assessing proportionality in the context of a removal which might break up a family unless the family itself decamped was whether it was reasonable to expect the family to leave with the claimant. It was necessary to show more than mere hardship or a mere difficulty or obstacle in relation to the proportionality issue. There was a seriousness test which required the obstacles or difficulties to go beyond matters of choice or inconvenience. The essential question in any case would be whether the hardship consequent on removal would go far enough beyond that baseline to make removal a disproportionate use of lawful immigration controls (VW (Uganda) v SSHD; AB (Somalia) v SSHD [2009] EWCA Civ 5).

From the moment of a child’s birth there existed between him and his parents a bond amounting to family life which subsequent events could not break save in exceptional circumstances. In considering proportionality under Article 8(2), the question was whether, having regard to the need to balance the interests of the individual with those of society, the particular measure was a more drastic interference with the primary convention right than was necessary for the maintenance of lawful, fair and consistent immigration controls (ECO, Mumbai v NH (India) [2007] EWCA Civ 1330).

The final word from Europe?

On 23 February 2010 the highest Court in Europe issued a ruling that will have a profound impact on many cases. If a child is in lawful education here they are entitled to continue with that and removing them or the care they are with would be a breach of that right and accordingly their human rights (Teixeira v United Kingdom (2010) ECJ C-480/08).

Laurence Saffer is a barrister at Park Court Chambers in Leeds (www.parkcourt.co.uk).