England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(HIS HONOUR JUDGE DAVID PANNICK QC)

		Royal Courts of Justice Strand London WC2 Friday, 26th January 2001

Friday, 26 January 2001

1. LORD JUSTICE TUCKEY: This is an application for permission to appeal from the refusal of David Pannick QC sitting as a Deputy High Court Judge on 8th September 2000 to grant permission to the applicant, Umar Farooq, to apply for judicial review of the Secretary of State's decision to deport him as an overstayer.
2. The applicant is a citizen of Pakistan. In 1995 he married a woman who was a British citizen. She returned to live in England. In March 1996 she gave birth to their child, Sabrina. In November 1996 the applicant was given leave to enter the United Kingdom for 12 months as a spouse. At the end of this time he took no steps to extend his leave and shortly afterwards separated from his wife from whom he is now divorced. He was arrested as an overstayer in May 1998 and steps were taken to deport him, but two days before he was due to be deported he claimed asylum.
3. The Secretary of State summarily rejected this application as being without foundation, and notified this decision and his refusal to revoke the deportation order on 23rd September 1998. Two days later the applicant's representatives applied for his release from detention on the basis that he might ask for indefinite leave to remain because he had a child in the United Kingdom. Since the breakup of his marriage he had had no contact with Sabrina, although it is his case that his attempts at contact had been thwarted by his ex-wife and her family; nor had he provided her with any financial assistance. After the applicant's asylum appeal had been dismissed by a special adjudicator, he applied to a county court for a contact order to Sabrina.
4. In April 1999 the applicant was released from detention to enable him to pursue his application for contact which was first heard by the county court on 1st October 1999 when the Court granted him supervised contact for 45 minutes (since varied to one hour) every fortnight at the probation office in Nelson such contact has taken place. Over this period the Secretary of State maintained his decision to deport the applicant. His last letter on the subject is dated 2nd July 2000. Based on the history which I have summarised it said that the Secretary of State had reason to believe that the purpose of the contact proceedings was to frustrate enforcement action. It continued:

"There is provision within the Immigration Rules for someone to apply from abroad for an entry clearance to return here to exercise a right of access to a child. Your client is, of course, the subject of a deportation order and would have to apply for the revocation of the order before he could make such an application. As a deportation order is not normally revoked until the subject of the order has been absent from the United Kingdom for at least three years, the Secretary of State has considered whether it is unreasonable to expect your client to return abroad. He has also considered whether this would breach your client and his daughter's right to private and family life under Article 8 of the ECHR. The Secretary of State notes that your client was given an opportunity in June 1998 to leave this country voluntarily, without the need to obtain a deportation order against him. He had an opportunity to avoid the situation he now finds himself in but chose not to accept that option. Your client's marriage has irretrievably broken down. Your client sees his daughter for up to one hour every fortnight, under supervision, and therefore spends a very limited amount of time with her. The Secretary of State recognises that if your client is deported this limited contact will cease but he does not consider this to be a sufficiently compelling factor to lead to enforcement action being abandoned. The Secretary of State has considered the interests of your client's daughter in this regard but again does not believe the cessation of contact to be sufficiently compelling. He does not therefore consider that it is unreasonable to expect your client to return abroad to apply for entry clearance in due course. The Secretary of State does not accept that his actions would breach Article 8. Any impact on your client's family life is considered justified in the interests of maintaining a firm and fair immigration control. The Secretary of State therefore maintains his decision... to continue with deportation action."

5. The applicant's challenge to this decision before the judge was essentially that the decision was unreasonable. The applicant and his child's Article 8 rights should have taken precedence over the need to maintain immigration control. In a fourteen-page skeleton argument received by this Court yesterday, Mr Gill QC takes a number of further points. Firstly, he contends that the Secretary of State had no reason to believe that the purpose of the contact proceedings was to frustrate enforcement action. He argues that this went behind the decision of the judge in the contact proceedings. He submits that there was no basis for concluding that the applicant was manipulating immigration proceedings to his advantage. He had always wanted contact with his child and the Secretary of State was wrong to take into account the fact that he had had no contact and made no financial contribution before he was detained.
6. I do not accept these submissions. The judge in the contact proceedings was concerned only with what was in the best interests of Sabrina. He was not concerned with the applicant's immigration history or status. All he in fact said in the course of his judgment in the contact proceedings was:

"I prefer the father's evidence that he made some attempt to see his daughter between separation and arrest. These attempts came to naught as the mother's family would not assist. I think that his arrest concentrated his mind - not only would his immigration status be reduced but he would never see his child again. It is not determinative of the issue before me, but I do find that he does want to see his daughter. This does increase his chances of remaining in this country but the interests of the child are paramount and even if his motives are mixed there may still be benefit to her."

7. From the history I have recited I think that the Secretary of State was entitled to conclude that the applicant would do anything to remain in this country. This is not to go behind the judge's conclusion that he wanted to see his daughter. It only means that if he could use his application for contact to frustrate his imminent deportation he would do so and in fact that is what he did.
8. Mr Gill's next point is that DP 4/96 which is referred to in the Secretary of State's letter is contrary to the European Convention on Human Rights and so by relying on it, as he did, the Secretary of State misdirected himself. The points he makes about this are that the policy ignores family life as between a parent and a child after the parents' family life has broken down. Secondly, he says that it assumes that there should be deportation even where access is continuing unless there are exceptional circumstances to the contrary. That, he submits, is wrong and that a balancing exercise has to be performed in which there should be no presumption either way.
9. I do not think these are justified criticisms of the document read as a whole. It clearly does consider a child's right to family life both before and after the breakdown of any relationship between its parents. It recognises that an applicant in the position of this applicant may apply from abroad for access. It also recognises, as does the letter, that this will not be immediately possible in the case of someone who is deported. The policy says in terms that in those circumstances it may be unreasonable to expect a parent to return abroad to apply for entry clearance and goes on to say that in such cases it will be important to assess the quality and regularity of access to the child in order to decide how much weight should be attached to the interference which deportation will cause. This recognises that deportation will affect family life in the form of contact between the parent who is to be deported and the child in this country.
10. I return to the principal point considered by the judge and the point which Mr Gill, in his helpful submissions to us this morning has developed. The judge decided the matter before 2nd October 2000. He pointed out that the case law showed that the Secretary of State had a wide discretionary area of judgment as to whether the demands of an effective immigration control outweighed the respect for family life enshrined in Article 8 and that applying the tests laid down in Smith and Ex parte A (the Bloody Sunday case) there was no arguable basis for saying that the Secretary of State had acted unlawfully. I have no doubt that he was right about this. But things have moved on since then. There has been some debate in this Court and, dare I say it, some possible disagreement about whether we should consider appeals concerning decisions made before 2nd October 2000 on the basis of the then existing law or the law as it now is and, more importantly, about what the Court's role now is in cases of this kind. I favour applying the law as it now is since otherwise there is a possibility that applicants for judicial review will be able to cut and come again. That is not in the interests of anyone.
11. As to the Court's role, I refer to the judgment in the case of Isiko, handed down on 20th December 2000, where after considering two earlier decisions of the Court, we said in relation to the Court's new role in cases of this kind:

"Where the Court reviews a decision which is required to comply with the Convention by the Human Rights Act 1998, it does not substitute its own decision for that of the executive. It reviews the decision of the executive to see if it was permitted by law -- in this instance the Human Rights Act. In performing this exercise the Court has to bear in mind that, just as individual States enjoy a margin of appreciation which permits them to respond within the law in a manner which is not uniform, so there will often be an area of discretion permitted to the executive of a country which needs to be exceeded before an action must be categorised as unlawful. In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In cases involving immigration policies and the rights to family life, it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose decision is said to be incompatible.

Where, as here, a fundamental right is engaged the court will, applying the law as it was established prior to the coming into force of the Human Rights Act 1998, insist that this fact be respected by the decision-maker, who is required to demonstrate either that his proposed action does not in truth interfere with the right, or if it does, that there exists considerations which may reasonably be accepted as amounting to a substantial objective justification for the interference. The graver the impact of the decision in question upon the individuals affected by it, the more substantial the justification that will be required.

This more intrusive mode of supervision will in broad terms and in most instances suffice as the beginning [as we modestly said] of a proper touchstone for review when the Convention is in play."

12. Here the applicant's, and his child's, fundamental right to family life are obviously engaged. It is equally obvious that the Secretary of State recognises this and, more importantly, that his proposed action will interfere with this right. Are there considerations therefore which may reasonably be accepted which provide substantial objective justification for this interference given that the question involves weighing the competing demands for effective immigration control and respect for family life?
13. Mr Gill submits that there is no proper justification for this decision. He starts by saying that in each of the other cases where the courts have had to review the exercise by the Secretary of State of such a balancing process, there has always been a choice for the family life in question to be carried on abroad and so no insurmountable obstacle to family life was imposed by the decision in question. In each case there has been a deplorable immigration history and the relevant relationships threatened by the decision have been entered into when it was known that the applicant's immigration status was precarious. Finally, in each case the applicant was trying to jump the queue of those wishing to enter this country. In this case, Mr Gill submits, none of these features are present. If the link between father and child is broken now it will be broken forever and so the decision does impose an insurmountable obstacle to family life. The applicant's immigration history is not deplorable (although Mr Gill accepted that it was open to some criticism) and he did not father this child or come to this country to be with this child at a time when his immigration status was precarious. No queue-jumping is involved either.
14. Mr Gill further relies on the case of Ciliz, a recent decision of the Strasbourg Court, where the Court held that there had been a breach of Article 8 in circumstances where the applicant had separated from his wife and wished to establish contact with his child, but before proceedings to establish that contact had been concluded the state (in this case The Netherlands) sought to deport him.
15. What it comes down to, Mr Gill submits, is that the Secretary of State is simply asserting that his right to control immigration should take precedence over the right of children in circumstances like this come what may. That is not a proportionate response or one which fulfils the test to which I have referred.
16. I have given anxious consideration to these submissions, particularly as at this stage we are only considering permission and not final determination of any appeal. There are of course distinctions which can be drawn between this and other cases. At the end of the day each case, however, depends upon its own facts and the decisions of the Strasbourg Court proceed very much upon a fact specific basis. I do not think that much comfort can be gained by comparing the facts of one case with the facts of another to determine whether the decision in the instant case is one which is justified or not. Statements of principle of course, particularly those emanating from Strasbourg, do have to be borne in mind.
17. Looking at the facts of this case, I have already referred to the applicant's immigration history and the fact that it seems to me that the Secretary of State was justified in taking the view that he did about it. The critical question which the Secretary of State addressed in his letter was whether the degree of contact between father and child was sufficient in this case to outweigh the demand for firm and fair immigration control. Having looked at the matter carefully, I think that the Secretary of State's reasons do justify his decision to the required standard and that the contrary is not arguable with any real prospect of success. The limited time the applicant lived with his child after her birth, the very sparse contact between them since the breakdown of the marriage and the fact that contact could be resumed when the child is a little older if the applicant applies to re-enter from abroad, persuade me that the decision was a legal one.
18. Mr Gill also relied on Articles 6 and 14 to support his argument on Article 8 but with respect to his arguments, it does not seem to me that those articles add anything to the Article 8 point.
19. For those reasons I would refuse permission to appeal in this case.
20. MR JUSTICE PENRY-DAVY: I agree.
(Application for permission to appeal refused; Legal Aid assessment; anonymity of child's name refused)