DH (Jamaica) v Secretary of State for the Home Department

Lord Justice Elias:

1. This is for permission to appeal against the decision of Senior Immigration Judge Latter. The appellant is a national of Jamaica. I am not going to go through the history in any detail, but he came to the UK first of all in 2001. He had two children by someone who subsequently became his wife in June 2005. He sought to remain in this country, on occasions by claiming asylum, but the Immigration Judge found that this was really a delaying tactic and that aspect of the claim was never pursued. He sought also to remain in this country on the basis of Article 8. He was removed in 2007. He returned to this country in 2008. The reason for that was that he was assisting the police in giving evidence in a trial where the defendants were the children of his wife. Because of the position he was adopting in the trial his wife was not allowing him to see the two children, who were born in 2003 and 2004. When he came back to this country he was not in the event required to give evidence, but his stance in relation to that trial had poisoned his relationship with his wife and prevented his contact, as I say, with any of the children. He sought to remain in this country, to get leave to remain on the basis of his rights under Article 8 and in particular his desire to have contact with his children.

2. Senior Immigration Judge Latter, who was reconsidering the appeal, analysed the case with some care and concluded in the circumstances that he should not have leave to remain. Mr Pretzell argued valiantly that the judge had erred in his approach to Article 8, but I am not going to go through the detail; it seems to me he was plainly entitled on the facts of this case in the light of Razgar ( [2004] UKHL 27 ) and Huang ( [2007] UKHL 11 ) to conclude that the contact which had existed between the father and these children was not such as to justify an order that he should be allowed to stay under Article 8. As the judge pointed out, he had a poor immigration record; he committed an offence in Jamaica which he did not reveal to the authorities; he had had very limited contact with the children since 2007; and he also had two other children in any event in Jamaica who would obviously be affected in turn by his remaining in this country.

3. Be that as it may, I think in reality Mr Pretzell saw the difficulty in seeking to challenge that part of the judge’s decision. What he has done is to assert that there was an alternative matter which the judge ought to have considered, and that is whether the appellant ought to have been given limited discretionary leave to remain pending the determination of a claim that he has commenced, not by formal legal proceedings but by going to solicitors, to secure contact with his children. The criticism is that this was not properly addressed by the judge and furthermore that the judge acted on the premise that the appellant would be able to pursue an application for contact from abroad, whereas that was really wholly unrealistic.

4. It is also submitted that the judge failed to address adequately certain passages of MS (Ivory Coast) v SSHD , which suggests that discretionary leave will often be appropriate in these circumstances, and also the case of [2007] EWCA Civ 133 Ciliz v The Netherlands (Application no. 29192/95), a decision of the European Court of Human Rights in 2000. Mr Pretzell referred to passages in those judgments which he said would have supported a determination that he should be given that limited discretionary leave so that he could properly pursue his attempt to have contact rights with his children.

5. I think that aspect of the case is arguable. I have been told that in fact there has been a separate application made for that discretionary leave to the Secretary of State. I am not entirely clear why that is so; maybe it is on the basis that the judge did not fully deal with this aspect of his decision. No response has yet been received from the Treasury Solicitors. Plainly, if that is now properly considered and determined then it would make this appeal otiose. But I would accept that it is at least arguable that on this much more limited basis leave in this case should be granted. Order: Application granted.