Home Office refused tribunal appeal
The Home Office has been refused permission to appeal against a tribunal's order to bring a woman and her son back to the UK after they were deported.
A Court of Appeal judge ruled: "The tribunal was fully entitled to take the decision it did".
Arrangements are in place to return the mother and the five-year-old British-born boy from her native Nigeria on a flight due to arrive in the UK tomorrow.
A High Court judge and immigration Upper Tribunal judge jointly ordered the return of the 45-year-old mother, referred to as BF, and her son, RA, after finding the Home Office had ordered their removal without having regard for the "best interests" of the child as "a primary consideration".
The decision means the family's situation - especially that of RA, who was brought up in Gateshead, Tyne and Wear - will have to be reconsidered.
The judges also ordered the Home Secretary to "take all reasonable steps" to ensure the mother and her child's return from Lagos after hearing the mother suffered from mental health problems and RA was at risk of harm in Nigeria without the support he had received in the UK.
Lawyers for the Home Secretary applied for permission to appeal on the grounds that the family's case and RA's needs had been fully and fairly considered before deportation was ordered.
Refusing permission, Lord Justice McCombe ruled the tribunal was "fully entitled" to take into account the evidence of the dangers RA would face if he remained in Nigeria and "did not err in the exercise of its discretion".
The judge said: "The fact that this is a case involving a child is a matter of some considerable significance."
The mother is of Yoruba ethnicity and previously lived in Abeokuta, Ogun state, in the west African country.
She claimed her parents and siblings died in a car accident and her father's relatives tried to get her to marry someone she did not love.
The woman sought leave to remain in the UK in 2007 on the basis of "long residence" in the country, claiming she had lived here since 1991.
Her application was rejected after an immigration judge ruled that she had not been "continuously present" since 1991. In a later hearing another judge found that she probably arrived in Britain in 2006.
BF was sentenced to nine months' imprisonment in October 2008 for using a false Dutch passport and her son, referred to as RA, was born in Britain in 2009.
In April 2010 she made an application for asylum and humanitarian protection on the basis that she feared persecution and ill-treatment on return to the country of her birth, but that was refused.
Her lawyers made a number of attempts to stop her deportation, citing human rights laws and saying that ordering the return of the mother and child would be "contrary to his welfare".
However, the asylum claim was repeatedly rejected and the woman and the boy were placed on a flight to Nigeria.
Following their deportation, an application was lodged at the Upper Chamber of the Immigration and Asylum Tribunal for a judicial review.
They claimed that the Home Office acted unlawfully in removing them by not considering the boy's own position as a claimant "in his own right or properly as a dependent within a fresh claim made by him and/or his mother" and "without in his best interests planning for their reception and protective integration on return to Nigeria".
In their judgement, Mr Justice Cranston and Upper Tribunal Judge Reeds concluded that the Home Office did not act "irrationally or otherwise unlawfully" in not treating the representations made previously as a separate claim for RA.
However, they found that the department's refusal to accept submissions made on behalf of the mother and child just before they left the UK as a fresh asylum claim "do not evidence the regard to the best interests of RA as a primary consideration".
The woman's solicitors had argued that it was in the child's best interests to remain in part because it was likely that returning them to Nigeria would exacerbate his mother's mental health problems.
The tribunal ruled: "There can be no challenge to the Secretary of State's reasons for rejecting the representations as a fresh claim as regards BF on her own.
"In ordinary circumstances that would be conclusive with respect to RA's interests as well: young children like RA are removable with their parents and their best interests are served by being with them.
"But in the special circumstances of this case, in not taking into account the implications of BF's mental health for RA, and the risk of that degenerating in the Nigerian context, and the likely consequences on removal, the Secretary of State failed to have regard to RA's best interests as a primary consideration."
Upholding the tribunal's decision to order the family back to the UK, Lord Justice McCombe said some of the submissions made in the appeal hearing seemed to "elevate this application to something of a state trial".
He added: "It seems to me the decision I have to make is in the narrow confines of the facts of this particular case."
Earlier, the judge observed it was "not surprising" there was such trouble with immigration law, describing its condition as "such a disgrace".