IMMIGRATION/HUMAN RIGHTS: AF (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 240

26 MAR 2009

(Court of Appeal; Rix, Toulson and Rimer LJJ; 26 March 2009)

The Jamaican father entered the UK when he was 20, with leave to enter as a visitor. He subsequently applied, within time, for an extension of leave to remain as a student. That application was never dealt with, because, after he married a British citizen, he applied to vary his application, seeking leave to remain as a spouse, instead of leave to remain as a student. While he was waiting for a response to this application, the couple had a child together; the father also had an elder child from a previous relationship. The father, who had witnessed the killing of his cousin by a member of a Jamaican criminal gang, then entered into a police witness protection programme, giving evidence at the trial. Another witness and his son were subsequently murdered in Jamaica. Shortly afterwards the father was himself convicted of conspiracy to supply heroin and cocaine and sentenced to 7 years' imprisonment. Notice of intention to deport was served on him, and he applied for asylum. The Secretary of State refused the asylum claim, and, some 6 years after the application for leave to remain as a spouse had originally been made, refused the father leave to remain as a spouse. At the time of the Secretary of State's decision the two children were only 5, but by the time the decision came before the Asylum and Immigration Tribunal, both children had turned 7. The immigration judge rejected the father's claim that deportation would be an unlawful interference with family rights under European Convention, Art 8, and found that any risk of retaliation in Jamaica could be overcome by use of the Jamaican witness protection programme. By the time of the hearing of the father's appeal, another child had been born to the father and his wife.

The House of Lords decision Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, decided shortly after the immigration judge gave her judgment, made it clear that it was the family life of the family unit as a whole, not merely the impact of the decision on the applicant, that had to be considered. The immigration judge had, through no fault of her own, dealt with the Art 8 issue on too narrow a basis. The family life of the wife and children had to be taken into account. Before considering whether there were any 'insurmountable obstacles' to a person relocating abroad, it had be decided whether it was reasonable to expect the person to do so. The judge had not given any real consideration to the interests of the children in losing their father, or being uprooted from England. There was also no consideration of the fact that the relevant policy suggested that once a child reached the age of 7, it would need to be an exceptional case to justify uprooting the child from its home. The case was remitted for reconsideration by the AIT. It might well be that in any event the father's criminality would prove to be the decisive factor; the ultimate test was the proportionality of the decision.

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