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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> SN & Ors, Re Petition for Judicial Review [2003] ScotCS 279 (06 November 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/279.html Cite as: [2003] ScotCS 279 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD JOHNSTON in the petition of SN (A.P.) AND JA Pursuer; for JUDICIAL REVIEW OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENT TO ISSUE REMOVAL DIRECTIONS Defender: ________________ |
Act: Melvin Farr; Drummond Miller
Alt: Lindsay; H F Macdiarmid
6 November 2003
[1] On the face of it this is a petition on behalf of a citizen of Uganda against a removal direction issued by the Secretary of State for the Home Department in respect of her remaining in this country.[2] It quickly became clear at the hearing before me this approach is misconceived in as much removal directions lapse when the application is made and it appeared that properly understood the petitioner's position is really directed against a decision intimated to those advising her on 20 February by an official of the Home Office, declining to accept or grant an application which was effectively for discretionary permission to remain in this country on the basis that if she was deported her rights under Article 8 of the European Convention on Human Rights ("the Convention") would be breached.
[3] It is not disputed that the petitioner entered the country illegally from Uganda. She sought to argue in a claim for asylum that she was in fear of persecution in her country of origin but this was rejected, both as a ground of application and in terms of Article 3 of the Convention, by an adjudicator whose decision was dated 1 July 2002. No challenge is made to that decision and all issues accordingly in relation to fear of persecution or inhuman treatment both at common law and in respect of Article 3 of the Convention no longer arise despite counsel's attempts to raise the matter in the course of the debate.
[4] It has to be noted that the contents of the decision letter dated 20 February 2003 is not referred to in the petition but counsel for the respondent was prepared to accept that focused the real issue.
[5] The particular fact that bases the application at this stage is that the petitioner has had a child by a Rwandan National currently in this country with permission to stay until 2005 for exceptional reasons. I was informed that they had been living together in the South of England until the removal order was made which resulted in the petitioner and her young child being housed in Dungavel.
[6] The contention on behalf of the petitioner was simply that by sending her back to Uganda with her child, Article 8 would be breached in respect that it was submitted the father could not follow. It was said "Rwandans are not welcome in Uganda". I was informed that borders between Uganda and Rwanda has been closed but I was not assured that any citizen of any country could not fly directly into Uganda from a foreign country such as the United Kingdom. Be that as it may, that is not the real issue.
[7] It was further argued that the consequences of the deportation in the context of Article 8 would be disproportionate in terms of aims of the legislation. In this respect I was referred to D Levy v Secretary of State for Home Department, 2001 2AC 533R the Employment of State for Education and Employment ex parte Begbie 2000 1WLR 306; Boutive v Switzerland 2001 33EHRR 50; D Flatus v Secretary of State for Agriculture 1988 3WLR 475 and Smith v United Kingdom 1969 29 EHRR 497.
[8] These references of authority were designed by counsel to persuade me as to the proper test to apply in relation the issue of proportionality but in my opinion they add nothing to the general test to be applied, namely the balancing of all the factors including the consequences of such a deportation order but also in the context of the need and the right of the United Kingdom to maintain a sound immigration policy.
[9] Counsel for the petitioner had a subsidiary point to the effect that the matter should be remitted to another adjudicator to reconsider the issue. However that as counsel for the respondent pointed out that was not within the scope of an application for discretionary leave to remain. If that matter had been considered and had been improperly determined I would be required to quash the decision and the matter would have been the subject of a further application if it was thought fit by the petitioner unfettered by an order by this Court.
[10] If I reached that conclusion, that would have been the course I would have followed but in my opinion that the position of the petitioner is hopelessly misconceived.
[11] Counsel for the respondent relied on the certain decisions which supported the proposition that where the so called disruption to family life by deportation order had arisen by reason of the initial voluntary act of either parent to a child in its conception that was not intervention by the State but a situation brought on by the relevant personnel. He referred to the leading case of Poku v United Kingdom 22 EHRR CD 94 being a decision of the Commission which was followed by Lord Eassie in Akhtar v Secretary of State for Home Department 2002 SLT 1239 and by Lord Menzies in petition Sanchez-Hoyos as yet unreported dated 19 March 2002.
[12] It was not disputed that in appropriate circumstances Article 8 could apply to a relationship which was not one of marriage and counsel for the respondent in this case did not challenge the assertion that the petitioner had a relationship which is ongoing with the father of her child. However what is clear and equally cannot be disputed that the petitioner came illegally into this country as a single person, though apparently she has another child in Uganda, thereafter voluntarily formed a relationship with the father of her child which was duly born within the United Kingdom and is now seeking to use that fact as means of obtaining discretionary leave to remain in this country against the background of Article 8.
[13] For the reasons given in the cases I have cited that proposition runs against the established European and Scottish Jurisprudence to the effect that any disruption has not been brought about by the State but by a voluntary act, in this case, by conceiving a child by the petitioner.
[14] Although counsel did not concentrate on the matter it also has to be determined that the decision not to grant leave did not proceed on any irrational basis. As was pointed out to me the father of the child is not a settled person in the United Kingdom within the meaning of that phrase in the Immigration Rules and is merely here on exceptional leave. Accordingly all the factors that were referred to in the decision letter dated 20 February 2003 are as relevant then as they are now and there is no additional material which would warrant a reassessment of the matter even if such was competent. More importantly the decision letter in question gives reasons why the refusal to the decision was taken which are entirely in conformity with the cases I have cited. At the end of the day if there is an issue of proportionality, the interest of the State which is required to regulate sound immigration policy must rule which would certainly not be the case if persons were able to obtain the right to remain in this country simply by entering illegally and then conceiving a child whether in or out of wedlock.
[15] In these circumstances I consider this petition as wholly without merit as far as any question of law is concerned and I must dismiss it.
