The Secretary of State for the Home Department v VC (Sri Lanka), Court of Appeal - Civil Division, November 30, 2017, [2017] EWCA Civ 1967

Issuing Organization:Civil Division
Actores:The Secretary of State for the Home Department v VC (Sri Lanka)
Resolution Date:November 30, 2017
 
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Neutral Citation Number: [2017] EWCA Civ 1967

Case No: C5/2015/1454/AITRF

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Upper Tribunal Judge Clive Lane

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 30/11/2017

Before:

LORD JUSTICE MCFARLANE

LORD JUSTICE BEAN

and

LORD JUSTICE MOYLAN

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Between:

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Mr James Cornwell (instructed by GOVERNMENTAL LEGAL DEPARTMENT) for the Appellant

Shivani Jegarajah (instructed by PRIDE SOLICITORS) for the Respondent

Hearing dates: 4 OCTOBER 2017

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LORD JUSTICE MCFARLANE :

  1. The central focus of the present appeal relates to the evaluation of the right to family life under Article 8 of the European Convention on Human Rights of a foreign criminal deportee whose two children were at the relevant time subject to full care orders and orders authorising the local authority to place them for adoption.

  2. Although the underlying facts are more complicated, the operative decision to deport was made by the Secretary of State on 21 October 2013. By that time, in consequence of a decision of this court in family proceedings - Re V (Children) [2013] EWCA Civ 913 [`the Court of Appeal judgment'] - the two children of the family, who were then aged 9 and 5 years, were subject to placement for adoption orders with arrangements for very limited contact to their father which would cease altogether once an adoptive placement was found. The father, `[VC]', who is the respondent to the present appeal, successfully appealed to the First-tier Tribunal [`FTT'] which, on 22 January 2014, allowed his appeal on the grounds that (i) the decision to deport was not made in accordance with the Immigration Rules and (ii) the decision to deport was not compatible with his Article 8 rights.

  3. On 29 May 2014 the Upper Tribunal (Upper Tribunal Judge Clive Lane) dismissed the Secretary of State's appeal on the basis that the FTT decision had not been flawed by legal error and that the FTT had been entitled to hold that [VC] had a subsisting relationship with his children at the time that the relevant decision was made. The Secretary of State now appeals to this court, permission to appeal having been granted by Gloster LJ in April 2016.

    Factual Context

  4. [VC], who was born in Sri Lanka in 1970, entered the United Kingdom illegally in March 1998 and immediately claimed asylum. His asylum claim was refused in 1999 and the issue was not reconsidered until raised as part of his challenge against deportation in 2013. In the determination of his appeal the FTT dismissed the asylum claim and that issue does not form any part of the present appeal before this court.

  5. In 2004 [VC] married another Sri Lankan national and their first child was born.

  6. On 9 January 2007 [VC], who has no other criminal convictions, sexually assaulted three women and one man in the street within minutes of each other at a time when the evidence indicates that he was plainly very drunk. On 12 February 2007 he was sentenced to a total of 12 months imprisonment for those offences, and it is that conviction and sentence which triggered the appellant's decision to deport him.

  7. The couple's second child was born in 2008.

  8. Findings made in the Family Court by His Honour Judge Jeremy Baker QC (as he then was), which were adopted by the FTT, established that [VC] had a consistent and well-established alcohol problem prior to his sentence of imprisonment and that he had played little part in caring for the children before his sentence or thereafter.

  9. The couple separated in 2009 and in early 2010 [VC's] wife and the 2 children moved out of the area in which the family had previously lived, leaving [VC] behind. Unfortunately, as the Family Court held, the children's mother suffered from mental ill health which significantly compromised her ability to provide them with safe enough care. Again, [VC], as the court held, declined to respond to requests from the social services for him to take up responsibility for the children's care. Following a number of occasions when the children had been removed to safety for a short period, care proceedings were commenced in September 2011 and the children were removed permanently to foster care.

  10. At paragraph 45 of the Court of Appeal judgment, Black LJ (as she then was) summarised the family judge's findings in relation to [VC] which included the following:

    `... The judge accepted that [VC] could not provide care for the children now either and that the prospect of [him] being able to provide such care in the future is one that, in view of the need to provide for the long-term care of the children without delay, cannot be justified as it would be contrary to their welfare. This view rested on the following conclusions:...

    [VC] played a minimal role in caring for [the first child]... before he went to prison.

    Throughout the period before his imprisonment he was an alcoholic and was frequently violent to [his wife] in the presence of [the child].

    When he was asked by the local authority in 2011 to provide assistance in the care of the children, he declined to do so despite the fact that he knew of the local authority's concerns about [mother]'s ability to care for the children who were in foster care.

    He has extremely limited practical experience of childcare.

    Although he put himself forward in January 2012 as the sole carer for the children, in reality he intended that [mother] would reside with him so that she could care for the children.''

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    The local authority had devoted ``considerable and sufficient efforts to provide assistance and support to [VC] in order to enable him to equip himself to be able to care for the children, but he had ``failed to take any sufficient steps to respond to that assistance and support''.'

  11. In December 2012 HHJ Baker made care orders with respect to the 2 children, but declined to endorse the local authority's adoption plan, favouring, instead, placement in long-term foster care. The local authority's appeal was allowed, on the basis described in the Court of Appeal judgment, and placement for adoption orders were formally made with respect to the two children on 11 October 2013. The Secretary of State's letter recording her decision to deport [VC] followed some 10 days later on 21 October 2013.

  12. The circumstances at the time of the FTT and Upper Tribunal hearings were that, although no adoptive placement had been found, the local authority were still pursuing a plan for adoption. This court has now been told that the search for adopters did not bear fruit and, as a result, on 1 October 2015, the placement for adoption orders were revoked and replaced by special guardianship orders with respect to the two children in favour of their former foster parents. Although there is no formal order for contact between the children and [VC], it is understood that some occasional contact takes place under the supervision of the special guardians. It is accepted that this appeal falls to be determined on the basis of the facts and plans for the children as they were at the time of the two tribunal hearings. If the appeal is allowed, the case will have to be remitted for re-determination...

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