in the Petition





Judicial Review of decisions of the Immigration and Nationality Directorate dated 10 August 1997, 29 January 1998 and 7 May 1999



Petitioner: P MacDonald; Drummond Miller, W.S.

Respondent: H. MacDiarmid

28 March 2000

[1]This application for judicial review came before me for a first hearing. The respondent, on whose behalf answers have been lodged, is the Secretary of State for the Home Department, who is responsible for the enforcement of immigration and nationality laws in the United Kingdom. The petitioner seeks judicial review of a decision of the respondent contained in three letters dated 10 August 1997, 29 January 1999 and 7 May 1999, which, it was agreed, require to be read together.

[2]The facts in the case are not in dispute. The petitioner is a citizen of Pakistan. He entered the United Kingdom legally as a visitor in or about 1986. He overstayed illegally in the United Kingdom. He remained undetected until March 1991 when immigration officers found him hiding in a house in Edinburgh. He then applied for political asylum in the United Kingdom. On 13 October 1989 he had entered into his first marriage with a citizen of the United Kingdom. At no time did the petitioner apply for leave to remain in the United Kingdom as the spouse of his first wife. Indeed, he returned voluntarily to Pakistan on or about 30 October 1991. The marriage broke down and was ended by decree of divorce in an English court on 22 November 1991, which was made final on 26 February 1992.

[3]The petitioner returned to the United Kingdom in about October 1992. He entered the country illegally using a passport under a false name. In about December 1992 he renewed his application for political asylum. On 2 March 1993 he entered into a second marriage with a citizen of the United Kingdom. He then applied for leave to remain in the United Kingdom as her spouse. In May 1993 he requested that his application for political asylum be deferred pending consideration of his application to remain. On 9 January 1995 his application for political asylum was refused. The petitioner appealed against that refusal to a special adjudicator who heard the appeal on 22 February 1995 and refused it. Leave to appeal to the Immigration Appeal Tribunal was refused in July 1995. Meanwhile, on 27 January 1995 the petitioner's application to remain was refused. He brought proceedings in this court for judicial review of that decision, but he and his second wife separated before the determination of those proceedings and the petition was dismissed on the petitioner's motion in September 1997. The petitioner and his second wife were divorced by decree of a Scottish court on 30 December 1996.

[4]On 22 January 1997 the petitioner entered into his third and current marriage. His wife is a citizen of the United Kingdom and has the right of abode in the United Kingdom. Following upon this marriage the petitioner applied for leave to remain in the United Kingdom as the spouse of a citizen of this country. The petitioner's present wife has a daughter from a previous marriage, born on 13 May 1994, of whom she has custody. The child has some contact with her father, who lives in the United Kingdom. The parties are not agreed on the amount of contact, and counsel for the petitioner was unable to give specific information about it. The petitioner and his wife now have a child of their marriage, born on 26 October 1997.

[5]Before turning to the terms of the letters containing the decision which the petitioner now seeks to challenge, I shall summarise the legal context in which it was made. The Immigration Act 1971 provides by section 3(1) inter alia that where a person is not a British citizen he shall not enter the United Kingdom unless given leave to do so in accordance with the Act, and that he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period. Sub-section (2) provides inter alia that the Secretary of State shall from time to time lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of the Act for regulating the entry into and stay in the United Kingdom of persons required by the Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances. The current Immigration Rules are contained in H.C. 395 (as amended), which came into effect on 1 October 1994 and replaced H.C. 251 (as amended). In addition to the rules, guidance is provided to officials by the Home Office. The document which is applicable in the circumstances of the present case is DP 3/96. The introduction to DP 3/96 states that the notice provides guidance, in general terms, on the consideration of cases of those persons liable to be removed as illegal entrants or deported who have married a person settled in the United Kingdom, and that although illegal entry cases are considered outside the Immigration Rules, any relevant compassionate circumstances, including those referred to in DP 3/96, should be considered before a decision to remove is taken. Paragraph 3 states that where persons do not qualify for leave to remain under the Immigration Rules and are to be considered for deportation, or where they are illegal entrants liable to removal, but seek nevertheless to remain on the basis of marriage in the United Kingdom, the following paragraphs of the guidance apply. Paragraph 5 relates to marriages that pre-date the enforcement action. This paragraph is not applicable to the circumstances of the present case. Paragraph 7 states that the presence of children with the right of abode in the UK is a factor to be taken into account. In cases involving children who have the right of abode, the crucial question is whether it is reasonable for the child to accompany his/her parents abroad. The factors to be considered include the age of the child (in most cases a child of ten or younger could reasonably be expected to adapt to life abroad). Paragraph 8, which is applicable to the circumstances of the present case, relates to marriages that post-date enforcement action. It states:

"Where a person marries after the commencement of enforcement action removal should normally be enforced. The criteria set out in paragraph 5 do not apply in such cases. Paragraph 284 of the Immigration Rules makes it clear that one of the requirements for an extension of stay as the spouse of a person present and settled in the United Kingdom is that 'the marriage has not taken place after a decision has been made to deport the applicant or he has been recommended for deportation or has been given notice under Section 6(2) of the Immigration Act 1971'. Marriage cannot therefore in itself be considered a sufficiently compassionate factor to militate against removal. Detailed enquiries in order to ascertain whether the marriage is genuine and subsisting should not normally be undertaken. The onus is on the subject to put forward any compelling compassionate factors that he/she wishes to be considered which must be supported by documentary evidence. Only in the most exceptional circumstances should removal action be stopped and the person allowed to stay."

Removal from the United Kingdom would not of course prevent the person so removed from applying from outside this country to enter the country as the spouse of a citizen of the United Kingdom.

[6]The first of the three letters containing the decision to refuse the petitioner's application to remain in the United Kingdom was dated 10 August 1997 and was written to solicitors acting for the petitioner by an officer of the Immigration Service Enforcement Directorate on behalf of the respondent. After referring to DP 3/96, it stated:

"As a matter of policy, the Secretary of State is not prepared to grant leave to remain on the basis of marriage to illegal entrants who marry in the full knowledge that they are subject to enforcement action. Therefore, as your client's marriage post-dates the service of illegal entry notice, I regret that his application must be refused.

Illegal entrants who do not qualify for the exercise of the Secretary of State's discretion on the basis of marriage may nevertheless be allowed to remain in the United Kingdom if there are other wholly compelling reasons for not enforcing their removal. Examples might be serious ill-health or the presence of a child who is a British citizen (although children under the age of 11 are generally considered young enough to be able to adapt to life abroad). As no such reasons have been advanced in your client's case his removal to Pakistan will proceed.

It will be open to Mrs Ahmed to accompany her husband when he is removed and she will be given the opportunity to do so at public expense if necessary. Should Mrs Ahmed elect not to accompany her husband, for whatever reason, it is open to her to sponsor her husband's entry clearance application from the United Kingdom. Equally, it will be open to Mr Ahmed to apply abroad in the proper manner for entry clearance to return to the United Kingdom as a foreign spouse, although you will appreciate that I am unable to say in advance how long such an application would take to process, or to guarantee the outcome."

It appears that after receipt of this letter the petitioner enlisted the support of Mr Thomas McAvoy, MP, who entered into correspondence on his behalf. His letters have not been produced, but by letter dated 29 January 1998 the Parliamentary Under Secretary of State at the Home Office wrote to Mr McAvoy confirming the decision to remove the petitioner. The letter contained the following passage:

"As I believe you know, Mr Ahmed's application was considered under the Immigration Service's guidelines for deciding the cases of immigration offenders who marry here. Because the Immigration Rules require marriage applications from overseas nationals who are here unlawfully to be refused, it would clearly undermine the integrity of the control routinely to allow illegal entrants to benefit from marrying here. At the same time we recognise the need to be fair to those who, at the time they are served with illegal entry notice, already have long term, genuine and subsisting marriages. In an attempt to resolve these conflicting interests we have set the minimum qualifying period for marriages at two years.

In Mr Ahmed's case his most recent marriage took place three years after he had been warned of his liability to removal and 18 months after his asylum application had been refused. The likely consequences must have been abundantly clear not only to him but also to his wife, and in these circumstances his marriage does not benefit him.

To answer your question about discretion, the guidelines do not fetter the further use of discretion in individual cases and illegal entrants may be allowed to remain even if they have been married for less than the two year qualifying period. However, the circumstances would have to be exceptionally compelling and compassionate, such as the serious ill health of the spouse or a child. In Mr Ahmed's case we know that his wife has a three year old daughter from a previous marriage and that the child's father keeps in touch with her. We also understand that his wife was expecting the couple's own child in October. However, these are not considered sufficiently compelling reasons to exempt Mr Ahmed from the requirement to return to Pakistan and to apply there in the proper manner for entry clearance to return to the United Kingdom lawfully."

The letter concluded by stating:

"Arrangements for his removal as an illegal entrant will now proceed and his family will be given the opportunity to travel to Pakistan with him, at public expense if necessary. I am sorry to send a disappointing reply but Mr Ahmed's is an abusive case and I am firmly of the view that he should be removed."

Thereafter agents acting for the petitioner wrote to the Immigration and Nationality Department by letter dated 8 September 1998 requesting that the decision be reconsidered in light of the birth of the petitioner's child (who had in fact been born before the letter dated 29 January 1998 was written). By letter dated 13 May 1999 written on behalf of the respondent by an officer of the Integrated Casework Directorate of the Immigration and Nationality Directorate of the Home Office the decision to refuse the petitioner's application was confirmed. The letter contained the following passage:

"The Secretary of State has now given careful consideration to your representations. In particular he has taken into full account that your client has a child born in October 1997 who has right of abode and that his wife has a four year old daughter from her previous relationship who lives with them but it is the view of the Secretary of State, that both children are still in their infancy and therefore are of an age to readily adapt to life overseas within the family unit. I appreciate that the removal of illegal entrants who have genuine marriage here, is likely to cause some distress and anxiety and this is regrettable, but it is not our intention to separate the family permanently and if his wife wishes to remain here with the children she can equally support his application from abroad to return here lawfully as her foreign spouse; although you will appreciate that I am not able to say how long such an application would take to process or to guarantee the outcome.

The Secretary of State also maintains that any disruption that may result from your client's removal is fully justified in the wider interest of maintaining the integrity of a firm immigration control.

The Secretary of State has therefore concluded that there are not sufficient compelling and compassionate reasons in this particular case so as to allow him to make an exception to what is the normal practice of enforcing the departure of illegal entrants and allow your client to remain here exceptionally outside of the Immigration Rules. Arrangements will therefore proceed for your client's removal from the United Kingdom to Pakistan."

[7]Counsel for the petitioner submitted that the decision contained in these letters was Wednesbury unreasonable (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223), in that it was a decision so unreasonable that no reasonable Secretary of State could have come to it. In support of this submission counsel referred to Article 8 of the European Convention on Human Rights, which provides:

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

In a number of decisions, including Berrehab v The Netherlands (1988) 11 E.H.R.R. 322, the European Court of Human Rights has acknowledged that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry, residence and expulsion of aliens, but has held that their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic society, that is to say, justified by a pressing social need, and in particular, proportionate to the legitimate aim pursued. In a passage in Abdadou v Secretary of State for the Home Department 1998 S.C. 504 at p.518, followed by me in Saini v Secretary of State for the Home Department 1999 S.L.T. 1249, Lord Eassie held that there was a degree of overlap between proportionality and Wednesbury unreasonableness, at least in a field such as immigration control and respect for family life. Proportionality might commonly involve a balancing of opposing interests and in applying the reasonableness test courts might in fact apply a proportionality test. A decision might thus be so disproportionate as also to be unreasonable in the Wednesbury sense. If a decision failed the test of proportionality with the consequence that it was in breach of Article 8, that might well support the view that the decision was unreasonable. However, while the fact that a decision was in breach of the Convention might thus assist in a contention that it was unreasonable in the Wednesbury sense, the ultimate test must be whether the decision fell outwith the range or span of decisions open to a reasonable decision taker.

[8]Although counsel for the petitioner expressly did not seek to take issue with the policy contained in paragraph 8 of DP 3/96, he submitted that, when account was taken of the provisions of Article 8 of the Convention in the manner outlined above, it could be seen that it was Wednesbury unreasonable of the respondent to have refused the petitioner's application because he had failed to recognise that the family circumstances of the petitioner were exceptional. Counsel referred in particular to the existence of the petitioner's stepdaughter, which, he submitted, took this beyond other cases. If the petitioner was removed from the United Kingdom while his wife stayed here in order to enable her elder child to maintain contact with the child's father, the petitioner would be separated from his wife and child; but if his wife went with him to Pakistan, taking both children with her, contact with the elder child's father would be broken. Counsel accordingly submitted that whichever option was followed would involve an infringement of family life. Counsel relied on Berrehab v The Netherlands, the facts in which, he submitted, were in many respects very similar to those in the present case. In that case the applicant was a Moroccan citizen who had lawfully resided in the Netherlands for some years as the husband of a Dutch citizen. There was a daughter of the marriage. The marriage ended in divorce. The child's mother was appointed her guardian, but the applicant continued to have frequent contact with her. The European Court of Human Rights held that the Netherlands was in breach of Article 8 in refusing the applicant a residence permit after the divorce and making a deportation order. In paragraph 29 of its judgment, after referring to the principles I have previously mentioned, the Court said:

"As to the aim pursued, it must be emphasised that the incident case did not concern an alien seeking admission to the Netherlands for the first time but a person who had already lawfully lived there for several years, who had a home and a job there, and against whom the Government did not claim to have any complaint. Furthermore, Mr Berrehab already had real family ties there - he had married a Dutch woman, and a child had been born of the marriage.

As to the extent of the interference, it is to be noted that there had been very close ties between Mr Berrehab and his daughter for several years and that the refusal of an independent residence permit and the ensuing expulsion threatened to break those ties. That effect of the interferences in issue was the more serious as Rebecca needed to remain in contact with her father, seeing especially that she was very young.

Having regard to these particular circumstances, the Court considers that a proper balance was not achieved between the interests involved and that there was therefore a disproportion between the means employed and the legitimate aim pursued. That being so, the Court cannot consider the disputed measures as being necessary in a democratic society. It thus concludes that there was a violation of Article 8."

Counsel submitted that the same considerations arose in the present case. He accordingly invited me to reduce the respondent's decision to refuse the petitioner's application to remain in the United Kingdom on the ground that the decision was unreasonable.

[9]Counsel for the respondent pointed out that the petitioner did not seek to challenge the respondent's policy. There was no dispute that the petitioner had entered the United Kingdom unlawfully and was subject to enforcement action, that he was not entitled to have his application considered under the Immigration Rules and that his application to remain on the basis of his marriage to a United Kingdom citizen fell to be considered by reference to DP 3/96 and in particular, since the marriage post-dated the commencement of enforcement action, paragraph 8 thereof. Counsel referred to Ahmed v The Secretary of State for the Home Department [1999] Imm. A.R. 22 (C.A.) in which Lord Woolf M.R. said at p.30, under reference to DP 3/96 and its predecessor DP 2/93:

"[I]t can be said that in general these policies are not ones which could be open to challenge as being inappropriate in themselves irrespective of whether members of the public would agree with the policies. They are an attempt to balance the interests of the state as against the interests of the individual who may be subject to enforcement action. It is to be remembered that they supplement what may be described as the statutory regime which deals in general with those seeking to enter and remain in this country. They are designed to give guidance as to when those who cannot avail themselves of the normal rules can be allowed to remain in this country. They are dealing with those who are in this country in circumstances when they have no entitlement to be here. In relation to this category of person, the Secretary of State has to take into account that he must not be seen to be giving encouragement to the breach of the immigration rules. He also has to have regard for the need to be fair to those who comply with the immigration rules who wait their turn to come to this country lawfully. On the other hand they take into account that where a person who marries someone who has the right of abode in this country and particularly if they have children, their removal may have extremely adverse consequences not only on the individual against whom enforcement action has to be taken but also their spouses and children."

Lord Woolf went on to make the point that even if an applicant cannot comply with the policy, in exceptional circumstances they can still obtain relief from enforcement action. Counsel submitted that this reflected the correct approach. The petitioner must be taken, at the time when he married, to have been aware of his precarious immigration status and the probable consequential effects on his family relationships by the enforcement of his removal. The respondent had properly considered all matters put before him. It was clear from the letters in the chain of correspondence that he was aware of and took into account the petitioner's immigration history, the timing of the marriage, and the need for the petitioner to demonstrate exceptional circumstances. More importantly, the respondent's decision took account of the petitioner's family circumstances. Counsel referred to passages in the letters I have quoted to this effect. Counsel referred to Gangadeen v The Secretary of State for the Home Department [1998] Imm A.R. 106 (C.A.) in which Hirst L.J. at p.119, after discussing two decisions of the European Court of Human Rights and one very recent Commission decision, said that these three cases demonstrated quite clearly that, in their interpretation of Article 8 in the present context, the Court and the Commission approached the problem as a straightforward balancing exercise, in which the scales start even, and where the weight to be given to the considerations on each side of the balance is to be assessed according to the individual circumstances of the case; thus they did not support the notion that paramountcy is to be given to the interests of the child. He therefore accepted a submission that the Home Secretary, in laying down and applying the policy contained in DP 2/93, on the basis that the scales start even with no preferences being given to the interests of the child, was fully in line with Article 8 as interpreted in the European jurisprudence. Counsel submitted that the interests of the petitioner, his wife, his stepchild and their child accordingly required to be weighed against the economic well-being of the United Kingdom, and in particular the protection afforded by the maintenance of a firm immigration policy. It was inherent in the application of the policy contained in paragraph 8 of DP 3/96 that family members might become separated from each other, at least temporarily while an application for entry clearance was made from outside the United Kingdom, and accordingly this could not be regarded as constituting exceptional circumstances. The decision taken by the respondent in the present case was within the range of reasonable decisions open to him. The petition should accordingly be dismissed.

[10]I should add that both counsel provided me with some personal information about the petitioner's present domestic circumstances. Apparently he looks after the children during the day while his wife works as a civil servant, and in the evenings he works in a restaurant for no pay but is provided with accommodation. There was some speculation as to whether the petitioner's wife would be allowed to take both children with her if she went with him to Pakistan and as to the care arrangements she might make for them if she remained in the United Kingdom, with possible consequences for her employment. There was also speculation as to the likelihood of the petitioner's obtaining entry clearance from outside the United Kingdom and the amount of time this would take. All of this might have had some bearing on the question whether the respondent might be invited to reconsider his decision, but it was not suggested on behalf of the petitioner that this would be the appropriate course. It appears to me that an applicant who seeks to argue that there are exceptional circumstances within the meaning of paragraph 8 of DP 3/96 has the onus of putting the relevant information before the respondent. Accordingly, the respondent is entitled to base his decision on the information placed before him. As I have said, it was not suggested that the respondent had failed to take account of the information available to him. The supplementary information given to me does not therefore seem to be relevant to the question whether the respondent's decision, based on the information available to him, was unreasonable.

[11]I accept the submissions for the respondent. The extent to which the petitioner can rely on Article 8 of the convention in support of his argument that the respondent's decision was Wednesbury unreasonable is set out in decisions of this court in Abdadou and Saini. The weight to be given to the interests of children, in considering the application of Article 8, is as set out in Gangadeen. The interests of children require to be weighed against the other considerations underlying the policies contained in DP 3/96, and especially paragraph 8 thereof, as explained in Ahmed. I adopt the reasoning of the Court of Appeal in each of these cases. The petitioner's reliance on Berrehab appears to me to be misconceived. The applicant in that case was lawfully in the Netherlands while he was married to a Dutch citizen. They had a child, with whom the applicant continued to maintain close ties after the divorce. These were the factors which led the Court to conclude that a proper balance was not achieved between the interests involved and that there was therefore a disproportion between the means employed and the legitimate aim pursued. The facts of the present case appear to me to be clearly distinguishable. Here, the petitioner had entered the United Kingdom illegally and was the subject of enforcement action before he entered into his present marriage. His present family relationships thus came into existence during a period throughout which, as he knew, he was liable to be removed from this country. His counsel did not seek to suggest that the fact that he was now married and that there was a child of the marriage constituted exceptional circumstances within the meaning of paragraph 8 of DP 3/96. It was in my opinion open to the respondent to conclude that the existence of the petitioner's stepdaughter, while perhaps a relatively unusual feature, did not constitute an exceptional circumstance sufficient to lead him to exercise his discretion in favour of the petitioner. The considerations arising from her existence do not appear to me to be of a different order from those arising from the existence of the petitioner's wife and child. Although, now that she has been accepted by the petitioner as one of his family, account must be taken of her interests, which include the maintenance of contact between her and her natural father, it is still in her capacity as the petitioner's stepdaughter that her interests must be considered; and that relationship, in common with the other relevant family relationships, only came into existence after the commencement of enforcement action. There does not appear to me to be such a disproportion between the continuation of enforcement action in the public interest and the consequent interference with family relationships which came into existence after its commencement as to render the decision to continue it Wednesbury unreasonable.

[12]I shall accordingly sustain the first plea-in-law for the respondent and dismiss the petition.