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(Court of Appeal; Lord Phillips LCJ and Scott Baker and Thomas LJJ; 22 February 2007)
The mother, from the Ivory Coast, had been refused leave to enter the UK, and refused asylum. While in the UK she gave birth to twins, but they were taken into care on the basis of physical abuse. The mother, who was suffering mental health problems, was convicted of offences of grievous and actual bodily harm, and of cruelty, and sentenced to 3 years imprisonment. While in prison she had some contact with the children, but all contact had now stopped and the mother had made a contact application. The mother sought judicial review of her impending removal from the country, arguing that there would be breaches of her human rights if she were removed prior determination of her application for contact. The Asylum and Immigration Tribunal considered that, in the light of the Secretary of States undertaking not to remove the mother pending the outcome of the contact proceedings (provided those proceedings were pursued expeditiously), the mother's eventual removal would not be disproportionate interference with her human rights.
The Tribunal should have decided whether the mother's removal on the facts as they were when they heard the appeal, i.e. with her outstanding application for contact with the children, would have violated Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and thus put the Secretary of State in breach of s 6 of the Human Rights Act 1998 if he removed her. It had not been open to the Tribunal to rely on the Secretary of State's undertaking that the mother would not be removed until her contact application had been resolved. Nor had it been appropriate to speculate upon whether there might be a violation of Art 8 on different facts at some stage in the future. Had the Tribunal decided the Art 8 point in the mother's favour, she should have been granted discretionary leave to remain for a short period (whatever was considered as sufficient to cover the outstanding contact application).
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