England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(CROWN OFFICE LIST)

MR. JUSTICE LAWS: This is an application for judicial review brought by Mrs. Ajayi and her young daughter, Theodora. Leave was given by Hutchison J. on 8th July 1993. The first applicant, whom I will call the mother, arrived in the United Kingdom on 18th August 1990. She comes from Nigeria. She was given six months leave to enter as a visitor. Very shortly afterwards, she met Mr. Ajayi who was a British citizen. Later, in November 1990, they developed a close relationship and were to be married the following year. In September 1990 the applicant commenced employment, as I understand it full time, with an electrical company in Milton Keynes. That was in breach of the prohibition on employment stamped in her passport upon the grant of her leave earlier. In the course of argument before me, some reference has been made to the question whether in truth she realised she was in breach of a condition of her leave. There is material to show that she had lost her passport at an early stage. It was to be asserted on her behalf at a later appeal before the adjudicator, which was abandoned, that she did not know of the prohibition. It is, however, clear from the documents that her passport was returned to her in November 1990. On 16th December 1990 she was arrested at her place of work and interviewed by an immigration officer. The Secretary of State decided to deport her, and a notice of intention to deport was served. It was signed on 16th December 1990. Two days later notice of appeal to the adjudicator was given. Some further representations were made, but they did not move the Secretary of State.

On 27th April 1991 she was married to Mr. Ajayi. Not long after she approached the Home Office with a request for leave to remain on the basis of her marriage. As I have said, Mr. Ajayi was a British citizen. Her appeal to the adjudicator was withdrawn. In August 1991 the Home Office sent a questionnaire concerning the details of her marriage but within the months that followed the marriage rapidly deteriorated. She left her husband on 21st November. She went to a women's refuge. She was pregnant at the time, and the second applicant was born to her on 10th February 1992. The father has, unhappily, taken no interest in the girl. Indeed - - the materiality of this will become apparent - - he contested his paternity, though it has been established by DNA testing that he is indeed the father.

On 21st April 1992 the Secretary of State signed a deportation order against the mother. It is important to notice that the basis on which the decision to deport, and indeed the deportation order, were made was only the fact that she was in breach of her entry conditions by working with the electrical company in Milton Keynes. This is not a case of an illegal entrant or an overstayer. The Home Office, after the deportation order was signed, still had to consider her separate application to stay on the basis of her marriage. They refused that application on 18th May 1992 after she had been interviewed.

By this time, and by the time the deportation order had been signed the previous month, the Secretary of State knew that it was at any rate being asserted that the child had a claim to British citizenship. The notes made after the interview in May 1992 contain this passage:

"Subject child would appear to have a claim to British citizenship. A copy of the B/C [birth certificate] was obtained, this gives the father's details as Franklin Owgbemiga Ajayi,...

Subject was asked what she wished to do with her child, take it with her, allow custody to her father or any other alternative."

I need not read further through the note. It indicates that, at first, the mother was saying that she would wish to leave the girl in the United Kingdom, though later material in the documents shows that she wished to take her with her. At all events, the mother was refused leave to remain on the basis of the marriage which by then had broken down.

Further representations were made. There were in due course divorce proceedings instituted by the mother on the grounds of the husband's unreasonable behaviour. Material was put before the Secretary of State, initially, I understand, in a letter from a doctor of 6th July 1992, concerning the girl's health. She has infantile asthma. The Secretary of State was told about that in July 1992. She also has, as is now known to the Department, eczema, a condition which often accompanies infantile asthma. In July 1992 solicitors instructed by the mother were told on the telephone that the Home Office would not revoke the deportation order. Further letters were written, and in due course an application for leave to for judicial review was made. After the papers had been lodged, the decree nisi of divorce was pronounced in October 1992. On 29th October this letter was written from the Home Office. It is addressed to the mother's solicitors:

"The Secretary of State has given careful consideration to the points raised in your letter of 29 July" - - it is not necessary to read that - -"but is satisfied that all the factors of this case were given full consideration before the deportation order was made. Furthermore, no significant new or compelling information has been submitted to justify revoking the deportation order and allowing Mrs. Ajayi to remain here."

There is no reference to the child's health, although information about that factor had been put to the Secretary State since the deportation order had originally been made.

As I have said, leave was given to move for judicial review by Hutchison J. in July 1993, and there are before the court affidavits on behalf of the respondent, one sworn before that date, because the leave application had originally been adjorned and no doubt the assistance of the Home Office was sought at that stage, and the other prepared later in anticipation of the inter partes hearing which has taken place before me today.

The challenge is in form to the deportation order of 2 April 1992 and also to the Secretary of State's later refusal to revoke the deportation order. In substance, Mr. Coll complains of the Secretary of State's continuing stance refusing to revoke the deportation order in the light of his later knowledge, in particular about the circumstances concerning the child, namely that it is now established, and has been since a date in 1993 - - the precise date does not matter - - that the child is a British citizen, Mr. Ajayi's paternity having been established. Indeed, a British citizen's passport was granted to the girl in June 1993.

Mr. Collins makes these submissions. First, the fact that the child is a British citizen is a consideration which, of itself, the Secretary of State was bound to take into account in deciding whether to maintain and execute the decision to deport.

That is because such citizenship confers, very obviously, rights on the child herself to remain here without being removed.

There are perhaps few more elementary rights in relation to personal status, but since the child is so young, says Mr. Collins, the effect of the deportation order is, in truth, either that the child will be removed because she will go with her mother and have no choice as to the matter herself, or else will remain here, separated from her mother. As I indicated earlier in this judgment, the father takes no interest in the child.

Thus, says Mr. Collins, the child's right to remain here, against a background in which, in the ordinary way, she might expect to enjoy a proper family life, is a distinct consideration which the Secretary of State should have weighed in the balance in favour of a revocation of the order. It is not and could not be submitted that such a consideration must in law be conclusive in favour of the applicants. Mr. Collins case is that it should have been considered and was not or was not properly so considered.

Second, Mr. Collins submits that, in the light of the Secretary of State's policy, now publicly known, concerning cases involving marriage and children, as it is put in the document in which it finds public shape, the Secretary of State was bound, at any rate, to follow the effect and thrust of the provisions of the European Convention on Human Rights in deciding whether to maintain this deportation. I will come shortly to the policy in which the European Convention is mentioned. Mr. Collins says that, on the facts here, there is either a plain breach or, at any rate, a likely breach, at least of Article 8 of the European Convention, either by way of a breach of family life or a breach of the right to respect for the child's private life.

Third, Mr. Collins relies on the descriptions which have been given in the Home Office evidence, to which I have not yet come, of the gravity of the breach of immigration control committed by this applicant. In Mr. Harrington's affidavit, that sworn later on behalf of the Secretary of State, it is referred to as the "applicant's blatant disregard for the immigration rules". In Mr. Jones' affidavit, it is said, referring to the time when the deportation order was made in 1992, that it was considered that the first applicant had substantially breached her conditions of entry. Mr. Collins says that, at worst, this is a case of working in breach of the prohibition contained in the passport. That is, as a matter of common sense, by no means as grave an immigration offence as that of illegal entry or, Mr. Collins would add, that of overstaying. He submits that there is reason to suppose that at least for some part of the time during which she was in breach, she may not have consciously realised that she was not allowed to do what she was doing. That was because of the lost passport, not returned to her until November 1990.

I propose to deal first with the point on the European Convention. The policy on which Mr. Collins relies has a section called "Section A: Marriage policy". It is common ground that this policy is intended, as it is put in the document before the court, to take account of the effect of the European Convention on Human Rights. Section A6 is in these terms:

"Cases will arise where a person to be deported/removed has custody of a child with the right of abode in the United Kingdom by a previous partner who is no longer in contact with the child. Here the crucial question is whether it is reasonable for the child to accompany the parent to live abroad. The factors to be considered are:

(a) the age of the child (in most cases a pre-school age child could reasonably be expected to adapt to life abroad);

(b) the strength of the child's ties with the United Kingdom including other United Kingdom resident family members;

(c) any medical conditions which would be better treated here;

(d) the standard of living (including educational facilities) in the country to which the parent is being removed."

In my judgment, it is plain from the affidavits of Mr. Jones and Mr. Harrington that the Secretary of State has considered all of these factors. Mr. Collins' submission must therefore be, not that the Secretary of State has departed from the text of the policy in that section relevant to the facts of this case, but that he was bound to apply the policy in a manner consistent with the applicant's rights under the European Convention. It is right, of course, that the European Convention is not part of English law. Other cases have been before the courts in which similar arguments have been raised, and, although the facts manifestly differ from case to case, Mr. Collins has not found an instance in which it has been distinctly held that, even though the Secretary of State has abided by his policy in the sense that he has not misunderstood its terms and has had regard to the factors which it commends, nevertheless, he has acted unlawfully because he has failed in addition to give effect to the European Convention on Human Rights. In the present case, there is and was before the Secretary of State, as I understand it, an opinion from an expert from Interrights to the effect that there are here breaches of Article 8 of the Convention. I mean no disrespect to its author when I say that some of the opinion is argument rather than the application of authority as such.

The Strasbourg decision of Berrehab is referred to, where the court held:

"It follows from the concept of family on which Art 8 is based that a child born of such a union is ipso facto part of that relationship; hence from the moment of the child's birth and by the very fact of it, there exists between him and his parents a bond amounting to family life."

There is also reference in the opinion to the right of respect to private life as regards the child Theodora, and in that connection her rights to remain in this country as a British citizen are referred to.

The difficulty in Mr. Collins' way as regards this part of the case is that, whether one thinks it harsh or not, it is quite plain that the mother would, if deported, be wholly entitled to take the girl with her, and indeed, as it happens, would do so at the public expense. I cannot see that it is a breach of Article 8 for the Secretary of State to remove a parent from this country in circumstances where the child may accompany him or her. The right to family life is not broken by the removal.

In this case, as I have said, the father takes no interest in the child. There might be issues that would arise for careful consideration if the effect of the deportation would be to split an actively loving and united family. That is not the case here. I fear that I must conclude on the facts that there is no substance in the suggestion that the Secretary of State is in breach of this country's obligations under the Convention. I arrive at those conclusions even on the assumption that the text of the policy requires the Secretary of State to make good a legitimate expectation that the Convention will be regarded in his decisions under the policy. I do not so hold as a matter of law, but were it the case the applicant here would still be unsuccessful on this ground.

It seems to me convenient to take Mr. Collins' first and third grounds together. Mr. Roth, whose submissions to the court were as helpful as they were short, accepted that the fact that a child has a distinct right to remain in this country as a British citizen is a factor which the Secretary of State ought to consider in deciding whether to deport or to maintain a deportation order in respect of such a child's parent. His submission is that the Secretary of State has done so here. He referred to paragraph 3 of the affidavit of Mr. Jones, where the deponent is dealing with the Secretary of State's consideration of the matter in 1992 when he made the deportation order. This sentence appears:

"The Secretary of State considered the circumstances of the case including the fact that it was claimed the second Applicant was a British citizen but decided to maintain the decision to deport the first applicant and on 21st April 1992 signed a Deportation Order."

Mr. Roth says that no great weight, if any, should be placed on the words "it was claimed". The Secretary of State had before him, at any rate the possibility, perhaps the likelihood, that the child was indeed a British citizen. In that context, he referred me to that passage in the interview note which I have already read, in which it is made plain that the Home Office knew that British citizenship was being claimed, and indeed a copy of the birth certificate had been obtained.

Mr. Roth also points to paragraph 4 of the second affidavit sworn for the Department, that of Mr. Harrington, which contains this sentence:

"Should the applicant not take Theodora with her, but leave her in this country, the most likely course is that Theodora would be placed under Local Authority care."

Mr. Roth submits, correctly, so far as it goes, that the implication of that sentence is that the Secretary of State knew that the child might remain here, presumably as a British citizen and so, says Mr. Roth, the fact of this citizenship was before the Secretary of State. It was present in his mind and thus he took it into account. That it was present to his mind seems to me to be a reasonable inference from these documents; but it is at this point that Mr. Collins' submission as regards the child's status as a citizen seems to me to be linked with his submission as regards the severity of the applicant's breach of condition. As I have said, this was a case where the only immigration offence, if I may use that expression, held against this applicant was the fact that she worked in breach of the prohibition. I am inclined to think it right that, in the natural run of things, that is generally likely to be perceived as less grave than illegal entry or overstaying, both of which are activities which generally take the immigrant to ground where he or she is at pains to avoid the attention of the authorities.

This applicant has been, so far as I can tell, open with the immigration authorities throughout. The offence is, it may be said, by no means of the gravest.

Given that circumstance, there was here a real question for the Secretary of State. He had an immigrant who undoubtedly fell to be deported if the Secretary of State exercised his discretion to do so. The grounds for that deportation were the offence which I have just described, and nothing more nor less.

On the other hand, he had, to his later knowledge at least, to consider the consequences of that deportation, if he insisted upon it, consisting, as in all likelihood it would, in the fact that a two year old British citizen would in fact, but not in law, be deprived of her right to remain in this country. It seems to me that he was obliged by our law to measure the gravity of the offence - - ultimately, its extent was for him - - committed by the applicant against the consequences for this child of her mother's removal, not only in terms of her health; he looked at that, not only in terms of the likely conditions she would go to in Nigeria; he looked at that at well; but in terms of the very fact that, as a British citizen, on the face of it she had rights as such. Although I have accepted that the Secretary of State had her status present to his mind, there is nothing in the papers to show that he undertook any such balancing exercise.

It seems to me that he was obliged to do so. For that reason and that reason only, I propose to grant relief, whose precise form I will discuss with counsel. It will be designed to ensure that the Secretary of State reconsiders the matter in the light of this judgment.

MR. COLLINS: My Lord, I would ask your Lordship to quash the deportation order. There is nothing of course to stop the Secretary of State issuing a fresh one, but he will have to look at it again. It would have the effect of removing the deportation order, which after all was based, on your Lordship's judgment, on a failure to have regard to all the relevant circumstances.

MR. JUSTICE LAWS: Without travelling back over the judgment I have just given, I hope I have made it clear that what I was really concerned with were the later stages.

MR. COLLINS: That will go to a question of revocation. I would submit that the fair course would be to quash the deportation order. That is no problem for the Secretary of State because if, upon reconsideration, he decided that none the less the applicant should be deported, he simply has to issue a fresh one.

MR. JUSTICE LAWS: I think that consistency with my judgment would be better met by an order of certiorari to quash the refusal to revoke, because that is really what I have been pointing at in the reasoning that I have given. I have not held that in April 1992 he fell into an error of law.

MR. COLLINS: I accept that, but the logic surely is that if your Lordship is quashing the refusal to revoke, it follows from that that he ought to have revoked at that stage

MR. JUSTICE LAWS: No, it follows that he should have considered it differently. That is all. I do not see that you are prejudiced.

MR. COLLINS: Except that the deportation order continues in existence. That creates or could create problems at a later stage. I do not know.

MR. JUSTICE LAWS: There would be the same problems if he decided to make a new one.

MR. COLLINS: It is a question as to whether, for example, the applicant could, if it was known that he was against her, decide to leave voluntarily. If the deportation order still exists, then she would have difficulty if she wanted to come back. If it is not there she could decide to leave of her own accord - - - -

MR. JUSTICE LAWS: If the Secretary of State decided against her, I am entitled and ought to assume at this stage that he would reach any such decision conformably with my decision, subject to the Court of Appeal, and therefore lawfully. She would have nothing to complain about.

MR. COLLINS: If one puts the clock back and deems the position to be that he is in a state of considering whether the deportation ought in this case to be made, then presumably, if he finds against her and if she has not gone to ground and he is in touch with her, he would normally say: "I have decided against you; I am going to issue a deportation order, but I am going to give you the opportunity of leaving voluntarily, so that there is not in existence a deportation order with all that that involves."

MR. JUSTICE LAWS: I think you are asking for more than the judgment entitles you to.

MR. COLLINS: I have made my submissions on that.

MR. JUSTICE LAWS: Mr. Roth, do you want to say anything about relief?

MR. ROTH: I would support the view that your Lordship has expressed for the reasons implicit in what your Lordship has been saying.

MR. JUSTICE LAWS: I will say this so that it can be added to the judgment in case it is necessary for anyone to look at it later. Having heard counsel on the question of relief, in my view, the reasoning which I have just delivered in the judgment, whatever its merits or demerits, point to the correct relief being an order to quash the refusal of revocation, since my view has been that the Secretary of State should have performed the balancing exercise which I have described upon his obtaining all the information about the child and, crucial to that, the fact of her citizenship. That knowledge, it is common ground, came to him later than the making of the deportation order in April 1992 which, had it stood alone, and had one been looking at the position as it was then, I would not have granted relief. Therefore, there will be an order of certiorari to quash the Secretary of State's refusal to revoke as evidenced in the letter of 29th October 1992.

MR. COLLINS: No doubt my learned friend will be prepared to give an undertaking that, pending reconsideration as to whether the order should or should not be revoked, the existing order will not in any way be implemented, the removal directions and any other parts of it will be held in abeyance. I am sure that it does not need any formal order.

MR. JUSTICE LAWS: Mr. Roth, that would follow.

MR. ROTH: Indeed.

MR. COLLINS: May I have costs and legal aid taxation?

MR. JUSTICE LAWS: Anything to say about the costs?

MR. ROTH: I cannot resist that.

MR. JUSTICE LAWS: Yes.