An important case from late last year has so far escaped comment here on Free Movement but deserves special mention: MH (pending family proceedings – discretionary leave) Morocco [2010] UKUT 439 (IAC) (28 September 2010). In it, the Upper Tribunal confirmed the currency of the earlier Court of Appeal of MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133 and held that where there are ongoing family proceedings involving children, an immigrant should be granted a period of Discretionary Leave. Once the outcome of the family proceedings is known this then enables the immigrant to apply under paragraph 248A of the Immigration Rules if such an application is justified by the outcome of the family case.

This must be right. Family proceedings involving children are stressful and difficult enough as they are without throwing in an absence of lawful leave for one or both of the parents. It cannot be in the best interests of the affected children for a parent to be distracted by immigration issues during the family proceedings.

The headnote for the case is worth quoting in full:

1. In MS (Ivory Coast) [2007] EWCA Civ 133 it was accepted, following Ciliz v Netherlands (Application no. 29192/95) [2000] ECHR 365; [2000] FLR 469, that a decision to remove an applicant in the process of seeking a contact order may violate Article 8 ECHR, in particular on the basis that removal of a parent/applicant during contact order proceedings would be unlawful because it prejudged the outcome of the contact proceedings and, more importantly, denied the applicant all possibility of any further meaningful involvement in the proceedings which may breach Article 6 ECHR.

2. A refusal to adjourn proceedings before the Tribunal may have similar consequences.

3. It is the respondent’s practice (consistent with the Human Rights Act 1998), not to remove or deport parent(s)/parties when family or other court proceedings are current and to grant short periods of discretionary leave, to extend temporary admission, or release a person pending the outcome of the family proceedings. The use of curtailment is discretionary in such circumstances (see Home Office Guidance re-issued in October 2010).

4. Where such a case arises before the Tribunal it is usual for the appeal to be allowed pursuant to Article 8 ECHR , rather than for the proceedings to remain within the Tribunal system to be adjourned, perhaps more than once. The respondent will normally then grant a short period of discretionary leave bearing in mind any relevant facts found by, or observations of an Immigration Judge. It is for the respondent to decide on the period of leave in each case.

5. Where an application for contact (or a residence order, or for other relief) is successful then a parent/party may make application for further leave to remain in the UK. If unsuccessful, then it will be for the respondent to consider what steps to take in relation to that individual.

I’ve dealt with quite a few cross-over family and immigration cases because I practice in both areas of law, as do several of the team here at Renaissance Chambers. I have seen correspondence from the Home Office confirming that no removal will be pursued. I have not seen an outright policy that says that leave will be granted, I have to say. I’ve even tried a Freedom of Information Request to get hold of the policy in question, but in response was sent a previously undisclosed Criminal Casework Directorate policy. It is useful, but it isn’t what I asked for.

Even without sight of the underlying policy, though, this case should now be sufficient to secure at least a short grant of Discretionary Leave to those engaged in family proceedings.