England and Wales Court of Appeal (Civil Division) Decisions

Case No: C/2000/0463 & 6382

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (The Honourable Mr. Justice Carnwath)

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 20 December 2000

1. This is the judgment of the court. The Appellants appeal with this court's permission from the decision of Carnwath J. who, on 8th October 1999 dismissed their application for judicial review of the Secretary of State's decision not to grant them exceptional leave to remain in the United Kingdom.

Facts.

2. The Appellants are Polish. Their daughter Luiza was born in Poland on 14th November 1986. Her father entered the United Kingdom illegally in 1994 and subsequently claimed asylum. Luiza and her mother arrived in August 1995 and were joined as dependants to the asylum claim which was rejected by the Secretary of State the following month. Luiza's sister remained in Poland. A special adjudicator dismissed the Appellants' appeal and the IAT refused leave to appeal in March 1998. A claim for exceptional leave was then made on behalf of the Appellants on a variety of grounds, only one of which was pursued before the Judge in the proceedings for judicial review which were launched in August 1998 after the Secretary of State had set removal directions for the family's return to Poland.

3. The surviving ground relied on by the Appellants relates to the educational difficulties which Luiza might face in Poland if she now returned there. The challenge is to the Secretary of State's consideration of those difficulties and the effect of Article 2 of Protocol No.1 to the European Convention on Human Rights on his decision.

4. Luiza was at school in Poland until 1995 and since then has been at school in Scunthorpe where her parents have been living. She has done very well. The Head Teacher of the school she is now attending reports that if she continued her education in this country she could be expected to achieve to a very high level and would most probably gain a university place. Her mother teaches Polish at the Polish Saturday school in Scunthorpe which Luiza attends. As a result of this additional education Luiza achieved an A grade in Polish GCSE when she was only 11.

5. The case advanced before the Judge was that if Luiza returned to Poland she would be required to resume her education there where she left off. So she would be put into a class of nine year olds and given no opportunity to catch up. This was supported by two letters from a Mr. Traliszewski who describes himself as a consultant in Polish law and East European affairs. He said that the effect of this inflexible system would mean that Luiza would lose the opportunity of matriculation at the age of nineteen and thus the passport to higher education.

6. At the suggestion of Buxton LJ when he gave permission to appeal, further evidence has now been obtained about the Polish education system. If nothing else this evidence shows that the case advanced by the Appellants before the Judge was factually incorrect.

7. The Secretary of State has obtained evidence through the British Embassy in Warsaw from the Polish Ministry of Education and the Bureau for Academic Recognition and International Exchange, a government agency established at the beginning of 1999 which reports to the Ministry. Among other responsibilities the Bureau provides information on the Polish education system. Its deputy director, Mrs. Majdowska, considers that it is the primary source of such information in Poland. She says :

1. Luiza will not have to return to the grade she was (in) before leaving Poland; she will be admitted to the next grade after the one she has finished in England;

2. Since she is 13½ now I suppose she will be admitted to the first grade of gymnasium (which starts after six years of primary school). Nevertheless it depends on the decision of the Director of the school she chooses: he has to consider if there aren't too many differences in the school programme ........

4. The fact that the child has been in a school in England for several years will not prevent her from taking the Matriculation exam at the age of nineteen, neither will it prevent her from accessing higher education (of course, she will have to pass an entrance exam or fulfil any other requirements necessary for the admission to a higher education institution).

8. The Appellants' solicitor has obtained statements from an ex-Polish teacher now living in London, Ms. Marciniak and a director of a group of schools in Poland near to the area to which the Appellants would return. They explain at some length how demanding the curriculum is in Polish schools and how much a child who has been abroad would have to catch up. However, they accept that it is for the director of the school to decide which class such a child should be placed in having regard only to that child's abilities. Whatever class that child is placed in the child may progress through the various grades if he or she is able to cope with the programme. A child returning from abroad would probably be put in a lower grade than his or her contemporaries but even then might have difficulties so might be kept down for a further year. The prospects of being able to matriculate at the normal age of nineteen were remote. Mr. Rudzinski concluded his statement by saying that he did not believe that a child in Luiza's position returning to education in Poland would stand any prospect of making up the lost curriculum time and therefore of successfully completing her education in the very formal and inflexible structure in Poland. This could only be achieved by supplementary private tuition of not less than seven hours tuition each week, principally in Polish language and history, the cost of which would be prohibitive.

9. The Secretary of State's decision to refuse the Appellants exceptional leave to enter has been maintained in a number of letters since July 1998. His latest letter to the Appellants' solicitors is enigmatically dated "October 2000" and responds to the new evidence. It says :

The Secretary of State has carefully considered the points you have raised ........ I regret that he remains of the view that there remain insufficiently compelling or compassionate circumstances which would justify exceptionally allowing your client and his family to remain ...... . What Ms. Marciniak and Mr. Rudzinski state ........ is that her ability to follow the classes would be assessed and that she would be returned to a level at which she could cope with the subjects being taught........ . The Secretary of State is aware that, according to the evidence, your clients' daughter is an extremely bright child, who came to the United Kingdom with presumably little or no English, entered an education system with which she was unfamiliar yet has managed to perform very well. She has also maintained her Polish. In these circumstances there seems every likelihood that she has the ability, even if returned initially to a lower grade, to progress quickly and "catch up" with her own age group. ........ There is no reason to believe that your clients' daughter would be unable to cope and every reason to believe otherwise...... . In every case in which a parent chooses to take their child abroad, the inevitable consequence is that the child will, on returning to the home country, have to go back into an education system with which they may be unfamiliar. There is nothing, therefore, unique or unusual here. It was your clients' choice to come to the United Kingdom and take their daughter out of the Polish education system and bring her here. If, as is claimed, her opportunity to access university education in Poland has been impaired this is not due to any deficiency in the Polish education system but to your clients' decision to come and remain in the United Kingdom for several years. It is clear that education will be available to your clients' daughter in Poland and it clearly cannot be said that she would be denied the right to education."

Issues.

10. Both parties are agreed that we should decide the appeal on the basis of the decision contained in this letter, taken to have been made after the Human Rights Act 1998 (HRA) came into force. This is of course a different factual and legal scenario from the one in which the Judge made his decision. It also means that we are considering the matter as a reviewing court of first instance. This, as well as the fact that these are early days for the HRA, dictates caution. We must obviously decide this case but in doing so we should try to resist any temptation to lay down principles of general application unless we have to.

11. Article 2 of the Protocol, so far as marterial, says :

No person shall be denied the right to education.

12. The Appellants contend that the Secretary of State's decision is incompatible with Article 2 and therefore unlawful (Section 6 (1) HRA). They accept that Article 2 is not an absolute right: the infringement of Luiza's right has to be balanced against the public interest in maintaining an effective and fair immigration policy. So the question is whether the Secretary of State's decision is proportionate. This is a question which the court itself must now answer and in this case it should be answered in favour of the Appellants. Alternatively, the Appellants say that the Secretary of State's decision is irrational.

13. The Secretary of State contends that Article 2 is of limited scope. It does not give a right to an effective or appropriate education as the Appellants contend but merely a right of access to such education and facilities as the state is able to provide. But, he says, Article 2 is not engaged at all where the effect of legitimate immigration control involves the removal of a child from the United Kingdom. This is because Article 2 is one of the lesser Convention rights which only have to be observed by the contracting state in their relations with persons under their jurisdiction. A child has no right to education in the United Kingdom and so once removed the United Kingdom's obligations are no longer engaged. The proper approach is for the Secretary of State to consider educational difficulties as one of the compassionate grounds for granting exceptional leave to remain which is how the case was first advanced on behalf of the Appellants and how he considered these difficulties in this case. In any event the Secretary of State contends that the removal of Luiza would not amount to a breach of Article 2 on the facts of this case and his decision is both proportionate and rational.

14. The Secretary of State does not take the point that Luiza is the only victim of the unlawful Act alleged and is not a party to the proceedings (Section 7 HRA). This point was not fully argued but if we had had to decide it we think that the parents of a minor whose human rights have been breached do have the standing to complain under Section 7.

Article 2 -v- Immigration Policy.

15. Logically the first issue is whether Article 2 is engaged at all where the effect of a legitimate measure of immigration control is to remove the child from the United Kingdom. Mr. Pleming QC, Counsel for the Secretary of State, relies on 15 Foreign Students -v- UK [1977] 9 DR 185, a decision of the Commission on admissability where it said (186) :

Article 2 does not grant a right for an alien to stay in a given country. An alien's "right to education" is independent of his right, if any, to stay in the country and does not protect or, as a corollary, include this latter right. The refusal of permission to remain in the country cannot therefore be regarded as an interference with the right to education, but only as a control of immigration which falls outside the scope of Article 2.

16. This decision undoubtedly supports Mr. Pleming's submissions but Mr. Luba QC, Counsel for the Appellants, submits that things have moved on since 1977 as one can see from the three later Commission decisions in Jaramillo -v- UK [24865/94], Sorabjee -v- UK [2398/94] and Ajayi -v- UK [27663/95]. These cases, he says, support the view that the Commission has moved towards a position where it will test the legality of any deccision to remove or deport by balancing the state's public interest in preserving its immigration policy against the infringement of individual human rights.

17. We do not think these decisions support Mr. Luba's submissions. In each case the Commission rejected on the facts the complaint based on Article 2 made by or on behalf of young or youngish children who were British citizens. It held that each child was young enough to adapt to the education system in the country to which they were to be returned. No attempt was made to address the point of principle which Mr. Luba seeks to extract from the Commission's approach in these cases.

18. Nevertheless, consideration of this issue raises the question as to whether the Secretary of State is required to consider whether his immigration decision will result in a breach of human rights in the country to which the individual is to be removed. In the 15 Foreign Students case the Commission recognised in relation to Article 3 of the Convention that expulsion of an individual might, "in certain exceptional circumstances", raise an issue under Article 3 where there are obvious grounds to fear that the individual will be subjected to torture/inhuman or degrading treatment in the state to which he or she is to be sent. However, the Commission rejected the attempt to draw an analogy between that exceptional case and the removal of a person who might then suffer educational detriment. It said that Article 3 :

concerns alleged violations of human rights of a particularly serious nature which cannot be compared to the present complaints under Article 2.

To similar effect is the decision in D -v- UK [1997] 24 EHRR 423, another Article 3 case concerning the proposed removal of a man dying of AIDS to St. Kitts. There the court held that in the exceptional circumstances of that case and because Article 3 contained absolute fundamental rights, contracting states had to consider whether such rights would be infringed when implementing immigration control. But it went on to add :

54 Against this background the court emphasised that aliens who ........ are subject to expulsion cannot in principle claim any entitlement to remain on the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state during their stay.

19. Mr. Pleming submits that the Article 2 right is a social right so the exceptional circumstances which applied in D do not require the Secretary of State to balance any possible infringement of Luiza's Article 2 rights in Poland against the implementation of his immigration policy. Any other conclusion would mean that the Secretary of State would have to investigate the social conditions (in this case education) in any country to which he was intending to return an illegal immigrant.

20. Mr. Luba responds by saying that his argument cannot be disposed of simply by saying that there is no breach of the United King dom's obligation under Article 2 because there will be no breach in the UK. Luiza is receiving an education here fully in accordance with her Article 2 rights. Those rights will be interfered with the moment she is prevented from continuing this education and required to return to Poland where she will be denied the right of effective and appropriate education.

21. We are not bound to follow the decisions of the European Court of Human Rights but simply to take them into account. Nevertheless the jurisprudence of the court does point clearly to the fact that rights which are not absolute, such as the right to education, are not engaged where a state is exercising legitimate immigration control. Accordingly we think Mr.Pleming's submissions on this issue are right. A child's right to education whilst it is in the United Kingdom does not carry with it the right to stay here. The Secretary of State has obviously to take account of any educational difficulties which it is alleged the child will suffer if returned to the country of origin as part of the compassionate grounds for granting exceptional leave to remain, but is not obliged to take a view as to whether the child's Article 2 right will be infringed there. However, in the spirit of restraint to which we have referred, we do not think it is necessary to decide this point authorititvely in this case, in view of our decision on the other issues to which we now turn.

Breach of Article 2 ?

22. On the assumption therefore that Article 2 is engaged in this case, is the Secretary of State's decision incompatible with this right ?

23. To answer this question we have first to consider the scope of Article 2. This Article has not often been considered by the European Court of Human Rights. However, in X -v- UK [1980] 23 DR 228 the Commission accepted the interpretation of the court in The Belgian Linguistics Case [1968] 1EHRR 252, 281 - 283 which it summarised as follows :

The negative formulation of the right includes that the contracting parties do not recognise such a right to education as would require them to establish at their own expense, or to subsidise, education of any particular type or at any particular level.

There never was, nor is now, therefore any question of requiring each state to establish a system (of general and official education) but merely of guaranteeing to persons subject to the jurisdiction of the contracting parties the right, in principle, to avail themselves of the means of instruction existing at a given time.

The Convention lays down no specific obligations concerning the extent of those means and the manner of their organisation or subsidisation.

The first sentence of Article 2 of the Protocol consequently gurantees in the first place, the right of access to educational institutions existing at given time.

This right requires, however, regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals. It goes without saying that such regulation must never injure the substance of the right to education nor conflict with other rights enshrined in the Convention.

24. Mr Luba contended that if the right was to have any content it should at least encompass the provision of an effective education. He supported this submission by reference to another passage in The Belgian Linguistics Case and to The Law of Human Rights by Clayton and Tomlinson (paras. 19.45 and 19.46).

25. We think Mr Luba is right about this and would adopt as an accurate statement of the law the following passages from Human Rights Law and Practice by Lester and Pannick (paras. 4.20.4 and 4.20.6) :

The general right to education comprises four separate rights (none of which is absolute):

(i) right of access to such educational establishments as exist;

(ii) a right to effective (but not the most effective possible) education;

(iii) a right to official recognition of academic qualifications ......

As regards the right to an effective education, for the right to education to be meaningful the quality of the education must reach a minimum standard.

But we do not think that the right is more extensive than this. If Mr Luba's submission that there is a right to an "appropriate" education means something more than an effective education in the sense described above we do not accept it. There is nothing in the authorities or the literature to which we have been referred which supports such a submission. The Convention does not confer a right to education in any particular country and so does not invite comparison between educational systems.

26. So Article 2 is limited in scope. Does the evidence show that Luiza's removal from her school in England and return to the Polish education system would breach her Article 2 right? We do not think so. It is certainly not enough to say that Luiza will get a better education in the United Kingdom. Poland clearly has a well developed system of education. It is not surprising that someone who has been out of it for several years will have difficulties getting back into it. But in this case Luiza appears to have the ability to overcome these difficulties. Not only is she extremely bright but she has obviously kept up her Polish to a high standard by attending the Polish Saturday School, no doubt assisted by her mother who is a highly regarded Polish teacher. We do not think that it can be said that Luiza will be denied an effective education if she returns to Poland.

Proportionality.

27. Our conclusion that the Secretary of State's decision does not involve a breach of Article 2 in this case makes it unnecessary for us to consider any question of proportionality. In Isiko -v- Secretary of State we have had to consider what the court's approach to proportionality should be in the contesxt of Article 8. We say nothing further about this in the instant case, although we are grateful for Counsel's submissions on this important question which we have taken into account in our judgment in Isiko.

Irrationality.

28. Here the challenge to the Secretary of State's refusal to grant exceptionasl leave to remain is on familiar grounds. In Gangadeen -v- Secretary of State [1998] IAR 106 this court said that the courts should be slow to interfere with the Secretary of State's discretion in such cases which essentially involve a concession outside the immigration rules. In the latest letter it is clear that the Secretary of State has taken Luiza's educational difficulties into account but has refused to grant exceptional leave to remain for much the same reasons as we have concluded that no breach of Article 2 is involved. There is nothing irrational in the Secretary of State's decision.

Conclusion.

29. For these reasons this appeal is dismissed.

Order:

1. Appeal dismissed.

2. Leave to appeal to House of Lords refused.

3. Community Legal Services Regs 2000 assessment of claimant's costs.

4. There by a stay on issue by the Respondent of further removal directions until expiry of time limit for petition to their Lordships' House and if before that date a petition is lodged a stay until the petition is determined.