The Court of Appeal in GD (Ghana) [2017] EWCA Civ 1126 explained once again what effect residence orders granted by a Family Court have on immigration matters, and criticised both representatives in the First-Tier Tribunal for failing to put the relevant law to the Tribunal.

The ‘residence order’ regime has now been replaced with ‘child arrangement orders’ by the Children and Families Act 2014, but this does not change the effect of family proceedings on immigration proceedings. Residence orders are made by a Family Court and determine with whom a child subject to the order will live, and will usually last until the child is 16 years of age.

A decision-maker considering deportation of a child subject to a residence order must discuss the case with a senior case worker and the Officers of Children’s Champion (OCC). Nonetheless, any deportation order lawfully made will override a residence order, so long as the residence order is considered in the decision. The President of the Family Division Sir James Munby cited Russell LJ in in re Mohamed Arif (An Infant) [1968] Ch 643, 662:

Any lawful deportation order affecting a ward … would override any existing express order of the judge in the wardship proceedings that the infant was not to depart from the jurisdiction.

Munby LJ had himself summarised the law 13 years prior to the present case in Re A (Care Proceedings: Asylum Seekers:

Exactly the same fundamental principles apply whether the court is exercising its private law powers under Part II of the Children Act 1989, its public law powers under Part IV of the Children Act 1989, the wardship jurisdiction, or its inherent jurisdiction in relation to children recognised and to an extent regulated by s 100 of the Children Act 1989. Proceedings under the Adoption Act 1976 apart, whatever jurisdiction he may be exercising a judge of the Family Division can no more than a judge of the county court or a family proceedings court make an order which has the effect of depriving the Secretary of State of his power to remove a child or any other party to the proceedings.

The rule is clear: a judge of the family court cannot restrain the exercise by the Secretary of State for the Home Department of her powers, including that of deportation.

The fact is – the law is – that the Secretary of State when exercising her powers of removal or deportation is not bound by any order of the Family Court or of the Family Division and that the Secretary of State, if she wishes to remove or deport a child or the child’s parent, does not have to apply for the discharge or variation of any order of the Family Court of Family Division which provides for the child or parent to remain here.

The First-tier Tribunal had made three errors, according to the Court of Appeal:

1. Believing that the residence order conferred parental responsibility on the father in this case, when in fact parental responsibility was held in any event;
2. Believing that the children could not be relocated abroad without the leave of the court (the family court) when in fact if there was a problem it would be caused by the withholding of parental consent; and
3. Believing that the residence order gave the children a right to live in the UK (although it is questionable that this was the view of the FTT in fact).

The First-Tier Tribunal in the present case made the additional mistake of believing the residence order to still have effect. However, residence orders cease to have effect if the parents of the child live together for a continuous period of more than 6 months, in accordance with section 11(5) of the Children Act 1989. This occurred in this case when the mother lived with the father after successful completion of her sentence of imprisonment (for force-feeding her child, resulting in the child’s death).

Because the Upper Tribunal upheld the decision of the First-Tier Tribunal made on erroneous grounds, and because the phantom residence order, and the misunderstanding, appeared to be relied upon as a material factor in this decision, the case was remitted back to the First-Tier Tribunal. It is hoped that this blog post is of assistance, so that future appellants against Home Office decisions can avoid the stress of attending several court hearings, as occurred in the present case.

Source: The Secretary of State for the Home Department v GD (Ghana)