Mother succeeds in judicial review of fresh claim concerning public interest in deportation and the rights of child

Thursday 25 January 2018

The claimant was represented by Irena Sabic of Garden Court Chambers, instructed by Chris McKendry of Wilsons Solicitors.

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Successful judicial review of the SSHD refusal to accept fresh representations based on article 8 ECHR, due to existing and developing relationship between a British child and her claimant mother.  The judgment contains a helpful review of legal authorities and considers the interaction between the best interests of the child and the public interest in deporting foreign criminals under Part 5A of the Nationality Immigration and Asylum Act 2002. At paragraph 129 of the judgment, Ms Mulcahy QC (sitting as a DHHJ) gives her reasons for concluding that the SSHD did not ask herself the correct question and acted irrationally in refusing the fresh representations. The judgment is significant in its focus on the child’s free standing rights as well as the article 24(3) of the Charter of Fundamental Rights. Further, it is of significance that the judge criticised the defendant’s approach to the ‘unduly harsh’ criterion – noting the difference in the statutory criteria and the reason why that impact may arise – as the product of the claimant’s criminal offending.

The claimant was unsuccessful in her challenge of the fresh claim for protection and unlawful detention. The claimant is seeking permission to appeal those parts of the judgment.

See the full judgment.

Irena Sabic is a member of the Garden Court Chambers Public Law and Immigration Teams.

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