5 days ago
Illegal immigrant can stay in UK for daughter he does not speak to
An asylum judge allowed an illegal immigrant stay in Britain despite 'contradictory findings' that his relationship with his daughter was good – but had also broken down.
Andrew Kung'u Gichuhi, from Kenya, won his appeal to remain in the country, with a new hearing pending, after an immigration judge said Mr Gichuhi could stay in the UK because he had a 'genuine and subsisting' relationship with his daughter, and it would not be right to expect her to leave Britain.
But, later on in her judgment, she appeared to contradict her earlier comments, saying there had been a breakdown in the father-daughter relationship.
After the Home Office argued that her findings were 'irrational', an upper tribunal judge has now ruled that Mr Gichuhi's claim should be heard again.
The case, disclosed in court papers, is the latest example uncovered by The Telegraph in which illegal migrants or convicted foreign criminals have been able to remain in the UK or halt their deportations on human rights grounds.
Yvette Cooper, the Home Secretary, has announced plans to kerb judges' powers to block deportations with new 'common sense' rules to clarify how they interpret the Article 8 of the European Convention on Human Rights (ECHR) article eight, which provides the right to a family life.
The Home Secretary's rules are also intended to strengthen the public interest test, in which courts need to be hold themselves accountable and only grant exceptions to laws with justified reasons.
Mr Gichuhi was living in the UK illegally as an unmarried partner of a British national when he applied for citizenship. The Home Office rejected his application, arguing that there were 'no insurmountable obstacles to family life with his partner continuing in Kenya'.
The Home Office said he did not have a 'genuine and subsisting' relationship with his daughter, from a previous marriage. Mr Gichuhi appealed the decision to a lower-tier tribunal.
The unnamed judge found that there was a 'genuine and subsisting' parental relationship between Gichuhi and his daughter, who 'could not reasonably be expected to leave the United Kingdom'. But later in the judgment, she said the relationship was 'broken down' and that there was 'no contact' between the Mr Gichuhi and his daughter.
In the appeal against the 'irrational' finding, the Home Office said 'a relationship could not be both genuine and subsisting and broken down'. It added the judge had also been 'speculating about the possibility of future contact'.
Those representing Mr Gichuhi argued that the judge had been 'entitled' to find that the relationship was subsisting, because he sent £100 a month to his daughter's bank account. They said he sent the money on an 'entirely voluntary basis', and his daughter had not returned the money.
However, while they argued that a relationship could be 'genuine and subsisting' in 'the absence of contact', they accepted that 'subsisting was the antithesis of broken down'.
For this reason, Mr Gichuhi's lawyers accepted that the judge's position was 'at least contradictory' and she had not explained how 'the contradictory positions were reconciled'.
Upper Tribunal Judges Adrian Seelhoff and Sean O'Brien concluded: 'Consequently, the judge's finding at that [Mr Gichuhi's] relationship with his daughter had 'broken down' is inconsistent with her finding later in that paragraph that it was 'subsisting'.
'No attempt had been made to reconcile these contradictory findings. It follows that the judge's decision involved the making of an error of law.'
They ruled that the case must be reheard afresh by another judge.
Broaden your horizons with award-winning British journalism. Try The Telegraph free for 1 month with unlimited access to our award-winning website, exclusive app, money-saving offers and more.
