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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Akhtar, Re Application for Judicial Review [2000] ScotCS 79 (23 March 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/79.html Cite as: [2000] ScotCS 79

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[1] This petition for judicial review is brought to reduce a decision taken on behalf of the respondent, the Secretary of State for the Home Department, by a Chief Immigration Officer on 27 April 1999 refusing the petitioner leave to remain in the United Kingdom on the basis of his marriage to Rubeena Tabassum, a British citizen.

[2] The petitioner is a citizen of the Republic of Pakistan. He arrived in the United Kingdom on 28 October 1995. He sought and was granted leave to enter as a visitor for a period of six months only, on conditions that he did not take up paid or unpaid employment or engage in any business or profession in the United Kingdom. One month later, on 28 November 1995, the petitioner claimed political asylum. On 6 September 1996 the petitioner was served with Form IS 151A advising that he was in the United Kingdom illegally and liable to removal. It is accepted by those acting on behalf of the petitioner that, for the purposes of the after-mentioned Home Office policy document DP 3/96, service of that form constituted the "taking of enforcement action". On 11 December 1996 the petitioner's application for asylum was refused. He appealed against that refusal to a special adjudicator. A hearing of that appeal was set down for 8 June 1998. Shortly before that date, namely on 29 May 1998, immigration consultants acting on behalf of the petitioner wrote to the Home Office seeking leave for the petitioner to remain in the United Kingdom on the basis of his marriage, on 30 March 1998, to Rubeena Tabassum. At the hearing before the special adjudicator on 8 June 1998 the petitioner then withdrew his appeal against the refusal of his claim to asylum.

[3] As respects the petitioner's relationship with his now spouse Rubeena Tabassum it is averred by the petitioner that he and she formed a relationship in July 1996. At that time Rubeena Tabassum was married to a Mohammed Arshad and there were two children of that marriage born in January 1988 and July 1993 respectively. It is further averred by the petitioner that he and Rubeena Tabassum began to live together in January 1997. Rubeena Tabassum was divorced from her husband on 10 February 1998. The two children of the marriage became the subjects of a Residence Order made, of consent, in the Walsall County Court on 25 March 1998 which provided for the two children to live with their mother and to have contact at weekends with their father, Mohammed Arshad. Some days later, on 30 March 1998 Rubeena Tabassum married the petitioner and on 21 July 1998 she gave birth to a child. The respondent does not dispute that the petitioner is the father of that child.

[4] Following the submission of the application of 29 May 1998 for leave to remain on the basis of his marriage to Rubeena Tabassum the petitioner was eventually interviewed by officials of the Home Office on 28 January 1999. The notes of the interview constitute No. 7/1 of process subject to the qualification that the second page of the notes is missing. The petitioner is therein noted as having stated, among other things, that he and his wife had three children, namely the two by her first marriage and the child born on 21 July 1998. He is also noted as having indicated that if his application for leave to remain on account of marriage were unsuccessful he would return to Pakistan and seek entry clearance. Counsel for the petitioner stated that the petitioner maintained that note to be inaccurate in respect that the petitioner's position was that he would adopt that course only in preference to going into hiding in the United Kingdom. By letter of 31 March 1999 (No. 6/14 of process), addressed to the firm of immigration consultants in Halifax then acting for the petitioner, the application was refused. The letter is in these terms:-

Those acting for the petitioner responded by a letter of 22 April 1999 (No. 6/16 of process) stating, inter alia:-

A reply to that letter was sent by a chief immigration officer in Solihull by a fax on 27 April 1999. The fax letter (No. 6/17 of process) included the following:-

For completeness it may be noted that the residence order of 25 March 1998, reflecting no doubt the provisions of section 13 of the Children Act 1989, states that:-

[5] The terms of the policy document at DP 3/96 are partially set forth in Article 6 of the petition and are also to be found as a production in No. 7/2 of process. The purpose of the notice is stated as being that of providing 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". Since the petitioner's marriage is accepted as having taken place after "enforcement action" the pertinent provision of DP 3/96 is paragraph 8 which provides:-

[6] After introductory matters counsel for the petitioner - Mr Sutherland - began his submissions by referring to the observations of Lord Hope of Craighead in R. v Secretary of State for the Home Department ex parte Launder [1997] 1 W.L.R. 839, 867 that:-

The first sentence of that dictum had been quoted with approval by Lord Steyn in R. v Secretary of State for the Home Department ex parte Kebilene [1999] 3 W.L.R. 972, 981 and in the unreported case of R. v Secretary of State for the Home Department ex parte Ali [28 October 1999] in which the view was expressed by Collins J. that the observation quoted was not confined to deportation or extradition cases. Collins J. went on to state:-

[7] As I understood it, the proposition advanced by counsel for the petitioner was that if a decision-taker had stated that he had applied the Convention and had concluded that his decision did not infringe its provisions, the court was enabled to have regard to the Convention and consider whether the decision-taker was entitled to hold that the decision did not involve an infraction of the relevant provision of the Convention.

[8] Counsel then referred to the decision of the European Court of Human Rights in Berrehab v The Netherlands (1998) 11 E.H.R.R. 322, in particular paragraphs 20-29 of the judgment, whence Mr Sutherland deduced that a decision-taker should have in mind (a) whether the persons concerned were lawfully settled when the family relationship arose; (b) the age of the children concerned and the importance of continuing contact; (c) the legitimate aim purportedly pursued by the competent authority's decision, a number of different aims being potentially in issue but each presenting different considerations; and (d) that all parties to a family unit or relationship have rights to the mutual maintenance of family life. Mr Sutherland then turned to the letter of 31 March 1999 and put forward a number of criticisms of it, some not evidently related to the contentions just advanced respecting Article 8 of the Convention. However, the core criticism was that the author of the letter expressed himself in a way indicating that in his consideration of both the existence of exceptional circumstances and Article 8 of the Convention, regard had been had only to the interests of the petitioner, his wife and their child born in July 1998. The interests of the two children by Rubeena Tabassum's first marriage had been ignored. Counsel then turned to the letter of 27 April 1999 which had been written in response to the criticism on the part of the petitioner's advisors that the existence of the children of the first marriage and the residence order had been overlooked. Counsel took issue with the view adopted by the chief immigration officer in his letter of 27 April 1999 that since the petitioner had told the office in Solihull that he and his wife had moved to Scotland to "avoid problems with the former spouse" this was "presumably with a view to avoiding contact". There was, said counsel, no proper basis for making that assumption. A move from England to Scotland was very different from a move from England to Pakistan. It was not necessary to obtain consent from the English court to move from England to Scotland. The letter of 27 April 1999 failed to take proper account of the practical consequences in terms of the petitioner's being allowed to enter under the provisions of the Immigration Rules. If the petitioner returned to Pakistan his wife would be left with three children and would not have employment and accordingly it was unlikely that the petitioner would be able to satisfy the public funds requirements of the Immigration Rules. It was, said counsel, unreasonable to say that discretion should not be exercised in the petitioner's favour because it would give him an advantage not enjoyed by those who followed the provisions of the Immigration Rules. The reference to the political situation had not been dealt with in "an appropriate way". However, of the criticisms of the terms of the letter of 27 April the principal thrust - as I understood counsel for the petitioner - was to the effect that the issue of a possible infringement of Article 8 was not addressed by the letter in the respects that, were the petitioner's wife and her children to accompany the petitioner to Pakistan contact between the two children of the first marriage and their father would be interrupted or impaired and, further, the decision-taker had not set forth in the decision letter whether or how he had gone through the various exercises required in balancing that interruption against the legitimate aims of immigration control. That balancing exercise was necessary under Article 8 of the Convention. For those reasons it was submitted that the decision of 27 April 1999 - and to the extent to which it relied upon the earlier letter of 31 March 1999 - involved an error of law and should be reduced.

[9] Mr O'Neill, who appeared for the respondent Secretary of State, moved for the dismissal of the petition and tendered a typescript statement of his argument. Since much of the argument presented on behalf of the respondent is contained in that written statement (No. 9 of process) to which reference may be made I record only some of what appeared to me to be the salient points.

[10] The starting point of the argument was that since the petitioner was an illegal immigrant, rule 284 of the Immigration Rules prevented his applying in this country for leave under those Rules to stay as the spouse of a person present and settled in the United Kingdom. The request from the petitioner was accordingly one directed to the Secretary of State's discretion. The current policy of the Secretary of State in such cases, where a person sought leave on the basis of a marriage, was contained in the policy statement DP 3/96. The policy drew a clear distinction between marriages entered into after enforcement action had been taken and those entered into at a point prior to the taking of such action. It was accepted that in this case the petitioner had contracted a marriage after enforcement action had been taken. The propriety of the policy in DP 3/96 had been affirmed by the Court of Appeal in England in R. v Secretary of State for the Home Department ex parte Ahmed & Patel and others [1999] Imm.A.R. 22 and had been held not to be in conflict with Article 8 of the European Convention on Human Rights. Since the Secretary of State's policy on deportations which might result in the separation of spouses, or the separation of parents and their children, was outwith the Immigration Rules the Secretary of State had a wide measure of discretion in its application and a court could only interfere with the decision of the Secretary of State (or an officer on his behalf), in exceptional circumstances where either the decision was irrational or the Secretary of State (or his officer) appeared to have departed from the stated policy (R. v Secretary of State for the Home Department ex parte Gangadeen [1998] Imm.A.R. 106).

[11] So far as concerned the judicial review of the inter-relationship between that executive discretionary decision-taking and the provisions of the European Convention on Human Rights, counsel referred to my own observations in the case of Abdadou v Secretary of State for the Home Department 1998 S.C. 504 at 518 where I ventured the view that one could not consider the mere averment of a breach of the Convention to be relevant to invalidate an exercise of administrative discretion since such would be to apply the Convention as if it were already part of the law of this kingdom; but that, put shortly, since a breach of Article 8 might involve a question of proportionality the decision might be so disproportionate as also to involve its being unreasonable in the Wednesbury sense. The conclusion in that case, as respects this aspect of matters, had been that while the fact that a decision is in breach of the Convention might assist in a contention that it is unreasonable in the Wednesbury sense, the ultimate test must be whether the decision falls outwith the range or span of decisions open to a reasonable decision-taker.

[12] Counsel further submitted that having regard to the admissibility decisions of the European Commission on Human Rights in the cases of Ama Poku v United Kingdom [1996] E.H.R.R. C.D. 94, and Lida Mackenzie v United Kingdom, (unreported 9 April 1997) the facts of which were closely similar to the circumstances of the present petitioner's case there was not even an arguable breach of the Convention in this case. In relation to the particular reliance placed by counsel for the petitioner on the effect on the relationship between the two children of Rubeena Tabassum's first marriage and their father counsel pointed to the statement in the decision in Ama Poku wherein the Commission noted that Samuel Adjei and Ama Poku had married at a time when enforcement action had been taken. The Commission then stated:-

A similar approach and similar observations were to be found in the decision in Lida Mackenzie. The case of Berrehab was plainly distinguishable in that Mr Berrehab had been lawfully admitted to the Netherlands and was lawfully present there when the family life was established.

[13] The rationality of distinguishing between pre-enforcement and post-enforcement marriages had been upheld in recent English decisions such as R. v Secretary of State for the Home Department ex parte Balwant Singh [1997] Imm.A.R. 331. As it was put in that case (334):-

It was not suggested in the present case that there had been a departure from the guidance in DP 3/96. The policy guidance having been followed the only question was whether, following the guidance, "no sensible Home Secretary or officer on his behalf could properly arrive at the decision which has been made" (R. v Secretary of State for the Home Department ex parte Iye [1994] Imm.A.R. 63, 66). There were no exceptional circumstances in the present case and it could not be said that the decision was one which was irrational or unreasonable.

[14] In relation more specifically to Mr Sutherland's criticism of the author of the letter of 29 April 1999 for having assumed that the move to Glasgow was to avoid contact, it was self-evident that moving to Glasgow would make contact between Mr Arshad and his two children more difficult and since the officer had been told by the petitioner that the move was to avoid problems between the petitioner's wife and Mr Arshad one could see how that inference might be drawn. However, said counsel, that was not central to the issue. Any disruptive effects on contact between those two children and their father arose from the mother's choice to marry someone who was an illegal entrant and likely to be removed, rather than from any actions on the part of the State. In cases such as these there will always be, in a broader sense, some interference but that does not render the decision one which breaches Article 8. Insofar as the sufficiency of the statement of reasons might be in issue there was no legal requirement on the Secretary of State to give full reasons. In any event, the standard for a tribunal was satisfied - c.f. Singh v Secretary of State for the Home Department 2000 S.L.T. 243. The ultimate and only test was whether, the policy having been followed, the result was unreasonable in the Wednesbury sense. It was not unreasonable and the petition should thus be refused.

[15] It appears to me that in its essentials the primary argument for the petitioner is to the effect that the refusal of leave to the petitioner amounts to a breach of Article 8 of the Convention by reason of the particular circumstance that the petitioner's spouse has two children by her former marriage respecting whom her former husband is permitted contact by the Walsall County Court residence order. Thus, assuming the English Court were to consent to the petitioner's spouse and the children joining the petitioner in Pakistan, that contact between the two children and their father would be interrupted. Alternatively, were the petitioner's spouse to be denied permission to proceed with the children to Pakistan the petitioner would require to return to Pakistan alone for such time as might be necessary for him to acquire entry clearance enabling him to join his spouse in the manner described in the Immigration Rules. Either alternative being, in counsel's submission, a breach of Article 8 the Secretary of State's officials had misdirected themselves in stating that regard had been had to the United Kingdom's obligations under the Convention, particularly Article 8. Having at least by implication stated that Article 8 was not breached, the observation by Lord Hope of Craighead in the Launder case provided authority enabling this court to declare that the view thus adopted by those officials was wrong and effectively direct the Secretary of State to grant leave.

[16] At one point in his argument counsel for the respondent suggested that the Launder avenue was not open in this case because the letter of 31 March 1999 merely said that the Secretary of State had taken into account the United Kingdom's obligations under the Convention and did not say in terms that Article 8 was not breached. In my view the implication of what was said in the letter of 31 March 1999 concerning the Convention was that Article 8 was regarded as not being breached and I do not consider that the linguistic subtlety which counsel for the respondent invoked can have the effect of closing off the Launder avenue, were it otherwise open. However, for reasons which I endeavoured to explain in my decision in Nisar Ahmed v Secretary of State for the Home Department (14 March 2000), in which a broadly similar argument was deployed on the basis of Launder, I am not persuaded that what was said by Lord Hope in Launder is quite as straightforward in its effect as involving simply that this court should reach its own view on whether a breach of Article 8 has occurred and impose that view upon the Secretary of State. To do so would, to my mind, involve the direct application of the Convention at a time prior to the entry into force of the Human Rights Act 1998. In that regard it must be borne in mind that, at least in the context of cases such as the present, the application of Article 8 of the Convention involves a balancing of considerations and interests and the ultimate exercise of a discretion. As was put by the European Court of Human Rights in the case of Abdulaziz and others v The United Kingdom (1985) 7 E.H.R.R. 471 at paragraph 67:-

Particularly in view of the nature of what is involved in the application of Article 8 it appears to me that in a judicial review of a decision taken by or on behalf of the Secretary of State in a matter such as this the question is not whether the court, approaching the facts at first instance, might consider Article 8 to have been breached but rather whether the decision-taker's view that Article 8 was not infringed was one at which he might reasonably arrive.

[17] I would observe at this point that in cases such as this, involving the exercise of the Secretary of State's residual discretion, one is concerned essentially with the decision itself rather than a textual examination of the terms of the letter communicating that decision. In contrast, to say, an adjudicator, exercising a quasi-judicial function between opposing parties, upon whom there is a statutory obligation to give an exposition of his reasons, the Secretary of State's officials are simply giving a response to a request for the exercise of a discretion, outwith the provisions of the Immigration Rules. While it is no doubt good administrative practice to explain the basis of the decision, and while the absence or brevity of an explanation of the reasons may make it more difficult for a decision-taker later to refute a contention of unreasonableness, I do not consider that the validity of the decision communicating the result of the request for the exercise of the discretion may be impugned simply on the basis that the letter does not discuss every aspect of the case or contain a full analysis of the decision-taker's thought processes. In so far as the submissions by counsel for the petitioner might imply an alleged failure in a duty to give full reasons, I reject that implied ground of challenge to the validity of the refusal of leave.

[18] In contending that the refusal of leave constituted a breach of Article 8 of the Convention counsel for the petitioner founded on the case of Berrehab v The Netherlands in which the European Court of Human Rights held the expulsion of a divorced spouse who had access to the child of the dissolved marriage to be a breach of that Article. However, as counsel for the respondent pointed out, the facts of Berrehab were very different from those of the present case. Mr Berrehab had been lawfully admitted to the Netherlands and the family relationship, including the birth of the child, had been established while he was lawfully resident in that country with every expectation of the family's continuing to live there with that status. In my view counsel for the respondent was correct in his submission that Berrehab was of little assistance in relation to illegal immigrants who married subsequently to the taking of enforcement action. Counsel for the respondent was also correct, in my view, in treating the Commission decisions in Ama Poku and Mackenzie as being much closer to present circumstances. The applications were each rejected as being manifestly unfounded. It is to be noted that, as respect the children of the former marriage whose contact with the divorced parent might be affected by the immigration decision, the view was taken by the Commission that the adverse effect on that contact arose by reason of the parent's choice to remarry someone whose immigration status was precarious, rather than through interference by the State. At all events I am satisfied that nothing in the Strasbourg jurisprudence cited to me required the Secretary of State's officials to reach a different conclusion on Article 8 from that which they adopted. Their conclusion is well within the reasonable span of views which might be reached on the application of Article 8.

[19] For the rest, I did not understand counsel for the petitioner to maintain that the guidance contained in DP 3/96 had not been followed. That guidance meant that the fact of the petitioner's marriage, which had occurred after the taking of enforcement action, would not provide in itself a basis for the granting of leave. Whether the other circumstances were sufficiently exceptional to warrant the granting of leave was a matter for the Secretary of State and his officials to weigh and consider. The other circumstances largely flow from the decision of the petitioner and his spouse to embark upon a relationship in the knowledge that the petitioner was not lawfully in the United Kingdom and liable to be removed. They relate essentially to the children of the former marriage and the child of the petitioner's marriage but, as Sedley J. pointed out in R. v Secretary of State for the Home Department ex parte Balwant Singh, in the passage to which reference has already been made, those unfortunate consequences were implicit in a decision to marry in that knowledge. I am thus unable to hold that the result reached by those acting for the Secretary of State was irrational and unreasonable and outwith the range of decisions properly open to him.

[20] In the circumstances I consider that I must refuse the petition. I shall therefore uphold the first plea-in-law for the respondent.