England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

LORD JUSTICE RUSSELL: This is an appeal by the Secretary of State for the Home Department against an order made by Mr Justice Hidden, who on 28th November 1995 granted the respondent to this appeal judicial review of two decisions of the Secretary of State contained in a letter sent to the respondent on 16th May 1994. In that letter the Secretary of State indicated that he was proposing to direct removal of the respondent from the United Kingdom as an illegal entrant and the Secretary of State refused to revoke the deportation order he had made as long ago as 9th December 1985. That latter date indicates the long history of this case.

Using the name of Adedapo Adeyemi Hastrup and a date of birth as 23rd July 1964, the respondent first came to the United Kingdom in the middle of 1984. He obtained leave to enter for a period of six months but subsequently overstayed. In July 1985 he attempted to obtain a United Kingdom passport in the name of Ajayi. He was arrested and charged with attempting to obtain a passport by deception. He appeared before a magistrate ant was sentenced to 21 days' imprisonment with a recommendation for deportation. His appeal against that sentence and the recommendation was dismissed. On 9th December 1985, as earlier indicated, the deportation order was signed. Thereafter, of course, any subsequent entry into the United Kingdom without disclosure of the background would involve the respondent in becoming an illegal entrant. In fact in December 1985, apparently without knowledge of the deportation, the respondent left the United Kingdom and returned to Nigeria Two months later, however, the respondent once more came to these shores, this time using the name Olurotimi Adedapo Adeyemi and a date of birth significantly different from that he had used 18 months before. The new date of birth he gave toe the authorities was 3rd June 1964.

Pursuant to that deceit the respondent was able to remain in the United Kingdom and he did so until he committed a criminal offence, or was alleged to have committed such an offence. When he was interviewed by the authorities his liability to deportation, pursuant toe the order of 9th December 1985, came to light and on 25th July 1987 the respondent was removed to Lagos. His appeal against his removal, which was launched outside the United Kingdom! was dismissed by an adjudicator. At this stage there comes on the scene a young woman called Linda Funke Ayinmodu, referred to in the papers as "Linda". She too was a Nigerian ant she came to reside in the United Kingdom.

On 10th October 1990 the respondent used yet another name and another date of birth to secure entry into the United Kingdom. On this occasion he posed as Adedapo Adeyemi Hastrup, the name in which he appears in these proceedings. In the application supporting his desire to enter the applicant was required to answer a question relating to his former names if they were different from that in which he was seeking entry. He did not disclose his various identities and, in response to further questions on the form, he did not disclose that he had on an earlier occasion stayed in the United Kingdom. He gave a negative response to a specific question posed, "Have you ever been deported from the United Kingdom?". When he was interviewed, as he was on 12th October, by an immigration officer he lied to the immigration officer, telling him that he had never been to the United Kingdom on any previous occasion and that the passport which he sought was his first. Again that deception worked for a time. Entry clearance was granted and leave to enter for six months followed.

In February 1991 the respondent married Linda and having done so he promptly applied for leave to remain as her husband. That leave was given eventually for an indefinte period in July 1992. Yet again the respondent came to the notice of the police in connection with a drink driving offence. Yet again he was interviewed by the immigration authorities and on 17th January 1994, when the true position was beginning to emerge to the knowledge of the enforcement officers! notice of illegal entry was served. On 30th April 1994 Linda gave birth to a son and on 16th May 1994 the Secretary of State, as earlier indicated, took the decision to remove the respondent as an illegal entrant.

It is right to observe at this stage that the letter, dates 16th May 1994, communicating the Secretary of State's decision, tit not condescend to a great deal of particularity as to the Secretary of State's reasons for his decision and in particular it did not refer to a policy document to which I shall have to come later.

I turn to the relevant immigration rules with the comment that on any view, and indeed it is acknowledged on behalf of the respondent, his immigration history over the years, which I have outlined, was quite appalling. Indeed in an affidavit sworn on behalf of the Secretary of State by a Mr Woodhouse on 2nd December 1994 the comment is made that the immigration history of this particular respondent could hardly have been worse. I remind myself that at some 32 years of age, if any credence at all can be given to any of the various dates of birth given, this applicant had succeeded in coming into the United Kingdom despite the existence of the deportation order on two entirely separate occasions. He hat achieved that on each occasion by deceit, displaying a cynical disregard for our immigration policy and our immigration laws. Mr Hastrup, it has to be said, is a man of education and must have known the gravity of what he was doing on the occasions to which I have referred.

Against that background I to to the relevant rules and the policy to which I have already made a passing reference. The rules are to be found at HC251, copies of which we have before us. Rule 162 reads:

"In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects".

Rule 176 provides:

"Where a person returns to this country notwithstanding that a deportation order is in force against him, he may be lawfully deported under the original order and it will normally be right to deport him. But every such case is to be considered in the light of all the relevant circumstances before the intention to enforce the order is notified to the person. He has a right of appeal against removal but solely on the ground that on the facts of the case there is in law no power to remove him from the United Kingdom."

Were this case to involve only a consideration of those rules, the difficulties which have emerged during the course of this hearing would not have been so apparent. In my judgment, Rules 162 and 176 make it plain that the Secretary of State has an unfettered discretion in relation to deportation, which of course he must always exercise fairly, having regard to the interests of the deportee.

However, in January 1993 there came into existence a policy document from the Enforcement Policy Group of the Secretary of State. That document. it is well to bear in mint, is not a public document; it is not circulated to all and sundry. It is a document provided for the guidance of the Secretary of State ant those of his officers who have the responsibility for taking decisions such as were involved in this case. The introduction reads:

"The attached instruction provides guidance on cases involving marriage and children, and takes into account the effect of the European Convention on Human Rights. Article 8 of the Convention guarantees the right to respect for family life and recent European Court cases have demonstrated that, however unmeritorious the applicant's immigration history, the Court is strongly disposed to find a breach of Article 8 where the effect of an immigration decision is to separate an applicant from his/her spouse or child."

What appears thereafter in the policy document, I have to say in my judgment, could have been more felicitously drafted because certain passages in the policy document at first blush seem to be at variance with the immigration rules themselves.

The nature however, of the policy document must always be borne in mind. 1 read selectively from the document but I hope in fairness to both sides. Paragraph 1 provides:

"All deportation and illegal entry cases must be considered on their individual merits. Where enforcement action is under consideration or has been initiated and the offender is married a judgment will need to be reached on the weight toe be attached toe the marriage as a compassionate factor.

2. As a general rule [and I emphasise those words] deportation action under section 3(5)(a) or section 3(5)(b) (in non criminal cases), or illegal entry action should not be initiated or pursued where the subject has a genuine and subsisting marriage to a person settled in the United Kingdom if:

(a) the marriage pre dates enforcement action [and I interpose to observe that that predating must bc over a period of two years, a condition well satisfied in the instant case]; and

(d) one or more children of the marriage has the right of abode in the United Kingdom, most commonly as a result of having been born in the United Kingdom to a parent settled here."

That precondition also is satisfied in this case. Then there appears against the rubric "Note" the following short passage:

"The subject's immigration history is of Little relevance once it has been concluded that the marriage is genuine and subsisting".

It is that note which. if taken in isolation, causes problems in this appeal.

Having said that, however, I take the view that it should not be looked at in isolation! nor should any other provision in the policy document nor should any of the immigration rules. The overall effect of the immigration rules and the policy document, in my view, is clear. There is nothing in the policy document which fetters the discretion of the Secretary of State, although it does give him guidance as to his approach in cases involving wives and children. For my part, I do not read the policy document as meaning or intending to mean that the immigration history of the particular individual is never of any significance at ale If that was the intention of the policy it could readily say so. Obviously an immigration history can provide. always on the assumption that it is a sufficiently poor immigration history, an exception to the general rule. That proposition can be elicited from the words of the policy document itself: "As a general rule deportation action should not be initiated or pursued where the subject has a genuine and subsisting marriage to a person settled in the United Kingdom ".

What then was the approach of the Secretary of State in the instant case? Plainly he took account of three factors: first, the immigration history of this applicant which I have already described; secondly, the compassionate circumstances involving his marriage to Linda and his child; and, thirdly, as the rules enjoin him so to do, the public interest in maintaining immigration control and enforcing our immigration laws.

After the letter had been written, notifying the respondent of the Secretary of State's decision a very lengthy affidavit was sworn by an official (Mr Woodhouse) of the Secretary of State. I have already referred to the document in general terms. The heart of it is to be found in paragraphs 19 and 20 on pages 104 and 105 of our bundle. Mr Woodhouse deposed:

"19. The Secretary of State considered the factors in favour of the Applicant's removal to Nigeria He noted the public interest in maintaining a fair and effective immigration control, including the public interest in ensuring that persons who were subject to a prohibition from entering the United Kingdom did not enter in breach of such a prohibition. He also noted particularly the public interest in enforcing such a prohibition in respect of a person who had breached it deliberately and fraudulently and despite his awareness of a previous occasion on which that prohibition had already been enforced. He also noted the circumstances in which the Applicant came to have a deportation order made against him, namely after an attempt to obtain a British passport by deception, and that that offence had itself been committed at a time when the Applicant was already in breach of the immigration laws and in an attempt to circumvent the immigration control. The Secretary of State took the view that the Applicant had demonstrated the utmost disregard for the immigration laws of the United Kingdom. The Applicant had repeatedly and deliberately abused the immigration control both by active deception and by passive concealment.

20. The Secretary of State noted that he had given general guidance in DP/2/93 that the immigration history of a person whose removal is proposed is of little relevance once it has been concluded that the person's marriage is genuine and subsisting. However, he had not said and did not consider that such a person's immigration history was of no relevance, nor that the public interest could never justify removal where such a marriage was genuine and subsisting. He considered that in every case he still had to consider the immigration history of the person whose removal was proposed. He noted that persons whose removal is proposed could have immigration histories varying in nature from merely overstaying at the lower end of the scale, to utterly appalling at the other end of the scale. The Secretary of State did not consider that it would be right to ignore immigration histories at the worst end of the scale, as the public interest in the enforcement of the immigration control would inevitably be at its strongest in such cases. In the applicant's case he considered that it was difficult to imagine a worse immigration record. In those circumstances he considered that:

"...the public interest overwhelmingly demanded the Applicant's removal from the United Kingdom"

That, as it seems to me, is a clear exposition of the decision making process employed by the Secretary of State in this case and in my judgment it cannot be faulted. In granting leave to appeal the single Lord Justice, Lord Justice Simon Brown, said this:

"Surely the argument here is not that the Secretary of State departed from his stated policy but that the policy admits of exceptions of which this case can reasonably be regarded as one. After all, paragraph 2 counsels against removal in the specified circumstances only 'as a general rule' and given that immigration history is ex hypothesi relevant (albeit of 'little relevance', it is not of 'no relevance') as a material consider ation it must on occasion be able to tip the balance else why consider it at all. I think it properly arguable that the balance here was not irrationally struck."

There the learned Lord Justice is plainly favouring an approach to the decision of the Secretary of State, which is not so much a departure from the policy as an implementation of it, recognising that there are exceptions to the general rule. In my view, in the context of this appeal, it does not matter a great deal whether we look upon this decision as a departure from the policy document or as an implementation of it, recognising the exceptional circumstances of the case.

We were referred in the course of argument by Mr Robin Tam, on behalf of the

Secretary of State, to a decision of Mr Justice Woolf, as he then was, in Grandsden Co. Ltd. and Another v. The Secretary of State for the Environment and Another [1987] P.& C.R. 86. The case was remote from the instant case in the sense that it was concerned not with immigration but with town and country planning. It was, however, concerned in a sense with policy documents though in Grandsden's case they had been promulgated in the form of a circular. Mr Justice Woolf said this:

"What then is the significance of the inspector having failed to follow the policy? Does that mean that this court has to quash his decision? The situation, as I see it, is as follows: first, section 29 lays down what matters are to be regarded as material, and the policy cannot make a matter which is otherwise a material consideration an irrelevant consideration. Secondly, if the policy is a Iawful policy, that is toe say, if it is not a policy which is defective because it goes beyond the proper role of a policy by seeking to do more than indicate the weigh' which should be given to relevant considerations. then the body determining an application must have regard to the policy."

There then follow these important words:

"Thirdly, the fact that a body has to have regard to the policy does not mean that it needs necessarily to follow the policy. However, if it is going to depart from the policy, it must give clear reasons for not doing so in order that the. recipient of its decision will know why the decision is being made as an exception to the policy and the grounds upon which the decision is taken.

Fourthly, in order to give effect to the approach which I have just indicated it is essential that the policy is properly understood by the determining body. If the body making the decision fails to properly understand the policy, then the decision will be as defective as it would be if no regard had been paid to the policy..

In my judgment the affidavit of Mr Woodhouse makes it abundantly plain that the Secretary of State was fully conscious of the implications of the policy document, the need to have regard to the policy document and the possibility either of implementing his decision by way of an exception to the general rule or by departing from the policy altogether. In the paragraphs which I have cited from Mr Woodhouse's affidavit, it is clear that the Secretary of State took account of all relevant considerations.

In allowing the respondent's application Mr Justice Hidden, if I may say so with respect, sought to make a closely analytical assessment of the policy document. I do not think that that is an appropriate course when one has immigration rules and superimpose upon them a policy document such as is present in the instant case. Mr Justice Hidden came to the conclusion, upon that fine analysis of the policy document ant the rules, that the Secretary of State here had attached what he described as a predominant significance to the immigration history. Certainly, it was a very material consideration as it turned out. But I do not myself go so far as to suggest that it was in the mind of the Secretary of State a predominant feature. He also had to bear in mind, as he plainly did, the public interest ant the compassionate circumstances of this case.

The burden was and remains upon this respondent to demonstrate that the decision of the Secretary of State was fatally flawed. He can only do that if he can show that it was a decision that no reasonable Secretary of State on the material before him could have reached, in other words that it was Wednesbury unreasonable. I do not believe that this particular decision was Wednesbury unreasonable. The Secretary of State is vested with the responsibility of taking what are very often difficult decisions. In my judgment it has not been demonstrated that in so doing he erred. :

I would therefore allow this appeal.

LORD JUSTICE PETER GIBSON: I agree, but as we are differing from the judge who gave a full and careful judgment I will add a few words of my own.

I take it to be elementary law that a Minister of the Crown who is given by statute a discretion may not fetter that discretion. He is nevertheless entitled to adopt a policy by which he may be guided. He will do so usually to promote consistency of practice by his department But in my view he would fetter his discretion unlawfully if that policy hat to be applied rigidly in every case, regardless of the particular circumstances of an exceptional case. Of course, if he publicly promulgates that policy with the intention that members of the public should act in reliance on it. he may create a legitimate expectation in members of the public such that it becomes impermissible for the Minister to resile from that policy in a particular case. R v. Secretary of State for the Home Department. ex parte Asif Khan [1984] 1 W.L.R. 1;37 is an example of such a case.

In the present case the Secretary of State has a wide discretion under the immigration rules which have statutory force. He has by his internal document DP/2/93 set out his policy in order to provide guidance to members of his department on cases involving marriage and children. Miss Webber properly accepts that the statements in that policy do not give rise to legitimate expectations in members of the public as it is an internal document. What the Secretary of State has done in the present case may either be called a departure from the general rule set out in the policy or a departure from the policy itself. For my part I doubt if it matters which characterisation is correct. In my judgment he was entitled so to depart provided that (1) he had proper regard to his own policy and (2) he explained fully his reasons for the departure. I doubt if before the affidavit of Mr Woodhouse he had shown that he had complied with either condition, but in the light of that affidavit I think it clear that he did have regard to his own policy and that his reasons for his departure are explained fully.

It was for the Secretary of State to balance the relevant considerations and in particular to balance the compassionate circumstances on the one hand against the public interest on the other. In my judgment he has carried out the balancing exercise in a way that cannot be impugned. The conduct of the respondent, and in particular the deceit repeatedly practised by the respondent, as well as the importance of maintaining immigration control and enforcing the immigration Laws; seem to me to be capable of justifying the new taken by the Secretary of State that the respondent should in the public interest be deported.

The decision of the Secretary of State cannot be impugned as irrational. I too therefore, for these reasons as well as those given by my Lord, would allow this appeal

LORD JUSTICE HUTCHINSON: I agree that this appeal should be allowed. It is plain from the policy statement DP/2/93 that the Secretary of State's general policy is that, in cases of illegal entry and deportation, a genuine and subsisting marriage or quasi marriage relationship which meets the stated criteria is a factor which will generally prevent deportation. It is also plain that, where there is a genuine and subsisting marriage, the Secretary of State's policy is to treat the subject's immigration history as of little relevance: see section A, paragraph 2, note (1). However it is conceded that this was not a case in which the policy was published or gave rise to legitimate expectations.

A consideration of the decision letter of 16th May 1994, supplemented by Mr Woodhouse's affidavit of 2nd December 1994, leads me to conclude that the Secretary of State in this case was mindful of the provisions both of the immigration rules and of his policy statement DP/2/93 and decided on what he regarded were the exceptional facts of this case to depart from his stated policy. He was entitled to do this provided he gave reasons for doing so: see the words cited by Lord Justice Russell from the judgment of Mr Justice Woolf in Grandsdens case. (I mention in parenthesis that in the final sentence of the first of the paragraphs that my Lord cited the sense requires the word "not" to be omitted.)

If this analysis be correct, the only remaining question is whether the Secretary of State's decision to depart from his policy was unreasonable in the Wednesbury sense. Miss Webber submits that it was because it was dictated not by extraneous circumstances but by matters all intimately related to the applicant's immigration history. While in a sense this is true, it seems to me that the details of that history which Lord Justice Russell has related have wider implications to which the Secretary of State was properly entitled to have regard in deciding to depart from his policy.

There is no ground, in my view, for saying that the Secretary of State's decision, fully and closely reasoned as it was, was irrational.

Order: Appeal allowed with costs here and below, not toe be enforced without leave of the court; cross appeal dismissed; legal aid taxation of respondent's costs.