The Home Office’s oft-touted policy of deporting ‘illegal’ migrants before they have an opportunity to appeal the decision has received its most serious challenge yet in a landmark verdict that could undermine the Government.

Judge orders Home Office to bring back deportee

Theresa May’s department may face contempt of court proceedings unless a deported Nigerian mother and her son are located and brought back to Britain by this weekend.

The case concerns a woman who claimed asylum in 2010, having been in the UK illegally, according to her, since 1991 when she arrived in Britain after losing her parents in a car accident and her remaining family attempted to force her to marry an older man. Using a false document, she worked here illegally to support herself, and by 2009 had given birth to a son. Central to her claim was her fear of destitution and discrimination as a single mother in Nigeria with no immediate family.

Perhaps unsurprisingly given the current political climate in the UK, her asylum claim was repeatedly rejected; leading, at one point, to her being admitted to a psychiatric unit with depression and her son being put into foster care.

The foster carers who looked after the son, Rafeeq Atanda, and remained close to his mother during this time have reportedly been paying for her accommodation and healthcare in Nigeria from their own savings because they were so concerned about what would happen to the pair.

In a ruling last week, Mr Justice Cranston, sitting in the Upper Tribunal of the Immigration and Asylum Chamber, granted a judicial review of the decision to deport the pair and in a highly unusual move – believed to be the first of its kind – ordered that the Home Office organise and foot the bill for their return to the UK by Thursday (April 23) at the latest.

The ruling criticised the Home Office for its “flawed” decision to put the child, referred to as RA in court, and his 45-year-old mother Bola Fatumbi (referred to in court as BF) on a plane to Nigeria at the end of January despite evidence of the woman’s poor mental health and the risk that both she and her son would end up destitute on the streets and at risk of prostitution, child labour or trafficking.

In handing down his judgement, Mr Justice Cranston said: “’In ordinary circumstances… young children like RA are removable with their parents and their best interests are served by being with them. 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 of removal, the Secretary of State failed to have regard to RA’s best interests as a primary consideration.”

The decision raises questions about the validity of Ms May’s election pledge to implement a “deport first, appeal later” regime under which asylum-seekers and migrants would automatically be sent back to their country of origin unless they could prove they would be at risk of “irreversible harm”.

Asylum campaigners and children’s charities have welcomed the ruling, which could have major implications for the way in which scores of children and their parents are deported from the UK every year.

Ian Mearns, the Labour parliamentary candidate for Gateshead in the north-east of England, where the family was living, has been a vocal supporter of the boy’s case. He said: “This is a massive vindication of the local campaign on behalf of [RA]. I have been extremely concerned that the Home Office has failed to take into consideration the rights of the child in this case and in others like it.”

Judith Dennis, policy manager for the Refugee Council, said: “This case is important because it highlights the need for a clear, transparent policy [concerning] children and their rights when it comes to asylum.

“We have this rhetoric about deportation and people being able to appeal from outside the country, but what this ruling says is that you need to balance the need for immigration control against the best interests of the child.

“I don’t think the Home Office even has a proper mechanism for doing that at the moment and that’s what we need – a clear transparent policy that can be worked to when it comes to children.”

Debora Singer, policy and research manager at Asylum Aid, said: “We are very concerned that the Home Office regularly fails to give sufficient importance to the rights of women and children seeking protection in the UK.  Our experience is that women fleeing domestic violence or forced marriage are often disbelieved. As a woman you are more likely than a man to have a refusal for protection corrected at appeal.

“Under international law, the Refugee Convention should be interpreted in a gender-sensitive manner and the courts are obliged to take into account the best interests of children.  But neither of these obligations are a regular feature of the UK’s asylum system.”

At the time of writing, the Home Office, which has declined to comment citing the “ongoing nature” of the case, was seeking a last-minute hearing at the Court of Appeal to quash Mr Justice Cranston’s decision.