Family Law Awards 2020
Shortlist announced - time to place your vote!
Court of Protection Practice 2020
'Court of Protection Practice goes from strength to strength, having...
Jackson's Matrimonial Finance Tenth Edition
Jackson's Matrimonial Finance is an authoritative specialist text...
Latest articles
Resolution issues Brexit notes for family lawyers ahead of IP completion day
Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
Online filing is real-time on New Year's Eve: practice direction change to accommodate EU withdrawal arrangements
I have heard that there will be an amendment to the relevant practice directions to provide that online applications received on New Year’s Eve after 4:30 PM and before 11:00 PM will count as...
Northamptonshire Healthcare NHS Foundation Trust v AB
The issue in this case concerned AB’s capacity to make specific decisions about treatment relating to her anorexia nervosa. She was 28 years old and had suffered with anorexia since the age of...
EU laws continue until at least 2038 and beyond
The UK left the EU on 31 January 2020.  But in matters of law it fully leaves on 31 December 2020.  But EU laws will continue to apply, and be applied, in the English family courts from 1...
Remote hearings in family proceedings – how is justice perceived?
The motion for the recent Kingsley Napley debate:  “This House believes remote hearings are not remotely fair” was carried with a fairly balanced 56% in favour and 44% against....
View all articles

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

Sep 29, 2018, 17:22 PM
Slug : af-jamaica-v-secretary-of-state-for-the-home-department-2009-ewca-civ-240
Meta Title :
Meta Keywords :
Canonical URL :
Trending Article : No
Prioritise In Trending Articles : No
Date : Mar 26, 2009, 06:27 AM
Article ID : 86231

(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.

Categories :
  • Archive
  • Judgments
Tags :
Provider :
Product Bucket :
Recommend These Products
Related Articles
Load more comments
Comment by from