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The Slippery Slope of Public Interest (24 September 2014)

Date: 24/09/2014
Duncan Lewis, Legal News Solicitors, The Slippery Slope of Public Interest

Mohammed (Family Court proceedings-outcome) [2014] UKUT 419 (IAC) the Tribunal finds in the head note:

‘Whilst it may be that in the Family Court jurisdiction prior to the coming into force on 22 April 2014 of the Children and Families Act 2014 there was always the possibility of a parent making a fresh application relating to contact, there is nothing in the guidance given in RS (Immigration and Family Court) India [2012] UKUT 218(IAC) (which was approved by the Court of Appeal in Mohan v Secretary of State for the Home Department [2012] EWCA (Civ 1363) that supports the notion that the mere possibility of such an application being made (or pursued) is a relevant criterion in the case of an immigration appeal when deciding whether to adjourn an appeal or to direct a grant of discretionary leave in order for such proceedings to be pursued. The guidance is concerned with whether there is a realistic prospect of the Family Court making a decision that will have a material impact on the relationship between a child and the parent facing immigration measures such as deportation.’

There is grace in defeat as the appellant’s solicitor in this case as defeat is human and a learning curve.

The observations of the Upper Tribunal Panel in the above case were hitherto fact specific and in my view did not lay down a benchmark of mathematical exactitude of how public interest is to be assessed.

Mohammed’s case is thought provoking as you will note from the grappling of the width of the umbrella of public interest at paragraphs 55 and 56 of the Judgement. Public interest is a concept of uncertainty, undefined but yet not insurmountable

There remains a troubling aspect of the Mohammed’s case which vexes legal artistry despite the Panel rightly promoting the observations in the RS case where the Upper Tribunal observed that it is appropriate to grant discretionary leave to remain in the UK in some circumstances pending the outcome of family proceedings insofar as there is a realistic prospect of the family proceedings deciding positively in favour of family contact establishing or continuing.

It is note worthy that the principles in the RS case are arguably human rights centric and not humanitarian centric. Therefore if one relies on the principles, family proceedings must be pending, not contemplated or anticipated no matter how realistically achievable are such proceedings. The prospects of family life continuing must be realistic from the Family proceedings

Insofar as the principles in the RS case observed the granting of temporary leave in some circumstances pending the outcome of family proceedings, to hold otherwise would have serious implications on Article, 6, 8 and 13 of the European Convention on Human Rights and on the common law notion of fairness.

The applications of the above articles would become more relevant with the coming into force of the Children and Families Act 2014 especially Articles 6 and 13 ECHR where a parent refuses for any reason the compulsory mediation.

The full case report can be accessed here.

About the author

Ahmed Sesay Joined Duncan Lewis in October 2010 and is currently an Immigration Solicitor, with the firm.

Before joining Duncan Lewis, Ahmed worked with the Citizens Advice Bureau in the City of London as a Generalist Advice Worker. He has lectured in Corporate Law, Alternative Dispute Resolution and Creative Management in City Business College and London Academy of Higher Education. Having programmed in Java, C, visual basic, XML and scripting languages, Ahmed is user friendly with computers.

Ahmed was attracted to Duncan Lewis because it is a firm that is multi-cultural, invests in people and delivers quality service for all.

Ahmed has research interests in Artificial intelligence, semantic web, computer crime, information technology and law.

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