England and Wales High Court (Administrative Court) Decisions

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

MR JUSTICE MAY: This is the hearing of an application for judicial review, on behalf of Mr Nasim Akhtar, of the signing of a Deportation Order by the Secretary of State for the Home Department on 21st March 1994, and the issuing, on 2nd June 1994, of directions for her removal to Pakistan. I granted leave in this matter as long ago as 28th July 1994. I understand that the hearing has been postponed pending the determination of one or more other cases in the Court of Appeal.

The Applicant is a lady in late middle age, aged, I think, now 63, who was born in Pakistan and who has been in this country since June of 1990, when she arrived and was granted six months leave to enter. She originally came to this country in 1963 as the wife of a British citizen and she has three adult children born in the United Kingdom. They are United Kingdom citizens of that marriage. That marriage was dissolved in 1967 and she returned to Pakistan with her children. In 1979 her two sons returned to the United Kingdom and settled here and in 1985 her daughter returned to the United Kingdom and settled here. In addition to her three adult children she has as many as seven grandchildren.

Having entered and been given six months leave to enter on 20th November 1990 she made an application for settlement which was refused by the Secretary of State in June of 1991 . That matter went on appeal to an Adjudicator on the question of dependency under the then Immigration Rules and the appeal was dismissed. However, during the course of that. hearing the Adjudicator recorded that Mr Richards, for the Respondent, did not dispute the basic facts of the matter and was prepared to accept that the Appellant, as she was, was dependent upon the sponsor. The Adjudicator said:

"On a balance of probabilities, I also find that this is so. I also find that the appellant would be living alone if she were to return to Pakistan."

That decision considered the evidence about dependency and her relations in Pakistan and concluded with these words:

"Taking the evidence as a whole, the appellant has failed to satisfy me, on a balance of probabilities, both that she is without close relatives to turn to in Pakistan and that she would, if she returned to Pakistan, be living in the most exceptional compassionate circumstances."

Those were considerations of the then Immigration Rules.

The question then arose about deportation and, on 7th May 1993, the Secretary of State decided to make a Deportation Order and that matter was referred to a second Adjudicator. That adjudication occurred on 19th October 1993. The conclusion was, and was accepted inevitably to be, that she was not entitled to remain under the Immigration Rules but the question was urged whether or not the Adjudicator should make a recommendation for compassionate reasons. The Adjudicator considered that matter and concluded that he did not consider that the evidence was so compelling as to enable him to make a recommendation in this case. He said:

"However I feel sure that before implementing the decision, the Home Office will consider the Appellant's age, infirmity and dependency with care."

It was on 11th February 1994 that the Secretary of State's decision letter which is under challenge was sent. In that letter the claim for settlement on an exceptional basis was rejected. The terms of that letter are in response to a letter to the Undersecretary of State, written, I think, by Claire Short MP, and this is a decision letter to the Applicant's representatives. It says this:

"You will be aware of the background to this case from my letter of 28 April 1993, a copy of which is enclosed for your ease of reference. Since I last wrote to you Mrs Akhtar's appeal to the independent appellate authorities against the decision to deport her, served on 7 May 1993, was dismissed by an adjudicator on 16 November 1993 and Mrs Akhtar has not applied for leave to appeal to the Tribunal.

The adjudicator noted his confidence that before the deportation decision was implemented Miss Akhtar's age, infirmity and dependence would be carefully considered. I have looked at these factors in particular and, as is normal, all the known relevant information in Mrs Akhtar's case has been considered.

Mrs Akhtar is now aged 61 having entered the United Kingdom at the age of 57. Based on statements made by Mrs Akhtar prior to her arrival, she led an independent life in Pakistan and had no intention of settling in the United Kingdom. She has only been away from Pakistan for three years and seven months and she may reasonably be expected to re-adjust to resuming life there. The medical report from Doctor Ahmed, dated 12 October 1993, indicates that she suffers from ailments that are not uncommon in someone of her age and medical advice I have received is that appropriate treatment is available in Pakistan and there is no reason to believe, on the information available, that she is not fit to travel.

It is said that Mrs Akhtar's children have supported her both before and after her arrival and I have no reason to suppose that they did not continue to do so upon her return to Pakistan. I do not therefore consider her dependency to be a strong factor in her favour. Neither do I consider the presence of Mrs Akhtar's grandchildren in the United Kingdom to be a compelling factor that outweighs the disregard she has shown for the immigration control.

I have looked carefully at all the known relevant factors in Mrs Akhtar's case but I am not persuaded that the compassionate factors in her case outweigh deportation. I do not accept that this decision is inconsistent with others, rather it will be unfair if I were to allow Mrs Akhtar to remain when many others abroad wish to join their families here, accept and comply with the law."

Those were the reasons then given. Following the grant of leave in this case, when submissions were made in relation to whether the Secretary of State had considered the question of the Applicant's dependency on her children, a further letter was written, dated 15th August 1994, in these terms:

"At the hearing of the application for leave for judicial review on 20 July it was argued the Secretary of State has not considered the question of Mrs Akhtar's dependency on her children in this country as being a compelling factor requiring a greater competing public interest to outweigh it, the competing public interest in this case being the need to maintain immigration control. I write to confirm the Secretary of State did address himself to the question of dependency in those terms but concluded for reasons set out in the Minister's letter of 11 February 1994 that deportation of your client was the right course."

The letter invited the Applicant's solicitors to withdraw the application before the court. There is no other substantive evidence from, or on behalf of, the Secretary of State in this case other than these letters and the matters referred to in them, in the sense that there is no substantive explanatory affidavit. Mr Jay accepts that the letter of 15th August is really no more than confirmatory of the reasons given in the letter of 11th February 1994.

The grounds now argued for review of this decision are essentially twofold. The first and particular ground is put in this way: dependency, as Mr Jay accepts, is not to be regarded in the context as solely financial dependency, but in close family matters may and should include family dependency and emotional dependency. The submission is that the decision letter of 11th February palpably, on the face of it, ignored emotional dependency. The consequential submission is that the sentence in that letter:

"I do not therefore consider her dependency to be a strong factor in her favour"

should be regarded as irrational in the sense that, had emotional dependency been taken into account, it was scarely conceivable that the Secretary of State, properly considering the matter, could, upon the facts of this case, have reached a conclusion that Mrs Akhtar's dependency was not at least a strong factor in her favour.

The second submission is wider concentrates on family rights by reference to Article 8 of the European Convention on Human Rights. That reads as follows:

"l. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of his right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedom of others."

It is not in dispute in this case that: this maintenance of immigration control is a possible competing, countervailing right to set against the right enshrined in Article 8. Article 8 is not a matter of substantive law within the United Kingdom Courts, but it is accepted that the concepts which it enshrines are matters which the Secretary of State should take into account in the appropriate case in exercising discretions of the kind which arise in this case.

The approach of the Court to questions of this kind has been set out in the opinion of Lord Bridge of Harwich in the case of R v_ Secretary of State_Home Department ex parte Brind, reported in 1991 1 AC at page 696, and the oft-quoted passage on page 748 reads as follows:

"But I do not accept that this conclusion means that the courts are powerless to prevent the exercise by the executive of administrative discretions, even when conferred. as in the instant case, in terms which are on their face unlimited, in a way which infringes fundamental human rights. Most of the rights spelled out in terms in the Convention, including the right to freedom of expression, are less than absolute and must in some cases yield to the claims of competing public interests. Thus, article 10(2) of the Convention spells out and categorises the competing public interests by reference to which the right of freedom of expression may have to be curtailed. In exercising the power of judicial review we have neither the advantages nor the disadvantages of any comparable code to which we may refer or by which we are bound. But again this surely does not mean that in deciding whether the Secretary of State, in the exercise of his discretion could reasonably impose. the restriction he has imposed on the broadcasting organisations, we are not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it. The primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State on the material before him could reasonably make that primary judgment."

Other Law Lords agreed with Lord Bridge. Lord Templeman, on page 751, expressed the principle in what may or may not be slightly different terms. I do not find it necessary in this case to consider whether, for instance, as Sedley J appears to have considered in granting of leave in the case of the Secretary for State v the Home Office, ex parte Ouijano, whether the opinion of Lord Templeman does or does not offer a "window of jurisprudence" as Sedley J expressed it, which is wider than that afforded by the opinion of Lord Bridge.

In the Court of Appeal decision of R v Military Board of the Defence Council the Master of the Rolls accepted a formulation of the law by Mr Pannick in these terms:

"The Court may not interfere with the exercise of an administrative discretion on the substantive grounds, save where the Court is satisfied that the decision is unreasonable in the sense that it in beyond the range of responsibilities open to a reasonable decision-maker but in judging whether the decision-maker has exceeded this margin of appreciation, the human rights context is important. The more substantive the interference with human rights the more the Court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."

The Master of the Rolls then proceeded to say that that submission, in his judgment, was an accurate distillation of the principles laid down in the case of R v Home Secretary, Ex parte Bugdaycay [1987] AC 514 and Brind, to which I have referred, and he quoted at some length from the opinions in Brind.

Now in this case, in my judgment, where a lady in late middle age has three adult children in this country and seven grandchildren and where it is accepted, as it has been now for some time that she is dependent here upon those children, the Court its concerned with human rights of an important nature Accordingly, in my judgment, this is a case to which the formulation of the law by Mr Pannick, accepted by the Master of the Rolls, is particularly apposite. There would, in my judgment plainly on the facts of this case be a substantial interference with Mrs Akhtar's human rights and a substantial interference with the rights of her children and grandchildren if she were deported to Pakistan. Accordingly the Court, in my judgment, has to require a high degree of justification within the phrase "the more the Court will require by way of justification," before it is satisfied that the decision is reasonable in the sense which the formulation of the law set out.

Mr Jay, on behalf of the Secretary of State, submits that the approach taken by the Applicant in the case is too analytical. He submits that this is a case where, however precisely it was expressed, it is obvious that family life considerations enshrined in Article 8 are in play and he submits that although the letter does not refer expressly to Article. 8 or to family life considerations in such terms, they are so obvious that no such reference is required. He submits that this is a case where the facts are clear and uncontroversial and where the Court should not look for a detailed analysis, not least because it is not a subject that can be subjected to a detailed analysis. He submits that the Court would be entitled to conclude that the Secretary of State had reached a decision upon proper consideration, that family life considerations were capable of being outweighed by the public interest of maintaining immigration controls, and that such a balancing exercise had taken place properly in this case. He submits that the only basis for challenging this decision would be on the straightforward Wednesbury basis and that it should not be so challenged.

In the light of those submissions I return, to the two short but critical paragraphs in the letter of 11th February 1994, to consider whether those submissions should carry the day. The first sentence of the first paragraph on page 52 concerns financial support. The second sentence:

"I do not therefore consider her dependency to be a strong factor in her favour"

is superficially surprising, to say the least, in the context of an acceptance that emotional dependency is in play as well as financial dependency. The third sentence:

"Neither do I consider the presence of Mrs Akhtar's grandchildren in the United Kingdom to be a compelling factor that outweighs the disregard she has shown for immigration control."

is a reference to her grandchildren, but it is scarcely a demonstration that the important family life considerations enshrined in Article 8 have been properly addressed.

The next paragraph starts with the sentence:

"I have looked carefully at all the known relevant factors in Mrs Akhtar's case but Iam not persuaded that the compassionate factors in her case outweigh deportation."

That is a very broad statement and again it can scarcely be said to demonstrate that a proper balance has been drawn between the requirements of immigration control and the rights of family life. The next sentence is on a slightly different topic and does not deal with the central submission in this case.

That is, in essence, beyond a residual, if I may say so, passage which addresses the question of dependency, to be found in the letter of 15th August, the entire material before the Court. I am satisfied in this case that the Secretary of State has made the decision which involved a balancing judgment, but I am not satisfied that all matters, which it is accepted should have been considered, have been placed in the Applicant's side of the balance. In my judgment the reasons which have been given, short as they are, are not adequate to allow the Court to conclude that a proper balancing exercise in this case has been made. In so far as the matters which are in issue in the case are concerned, the Secretary of State appears to have brushed aside the weight of the family life considerations without giving them due weight. I say "brushed aside" because in granting relief, as I am persuaded to do in this case, I consider that the Secretary of State either failed to take properly into account family life considerations characterised by Article 8 or, if in truth these were adequately considered, the expressions of that fact in the decisions do not adequately demonstrate that fact. Either reason is sufficient for the application to succeed which, in my judgment, it does.

I will discuss with counsel what relief, in those circumstances, to grant.

MISS HARRISON: My Lord, in these circumstances it falls so clearly for the decision not to revoke ,the Deportation Order to be quashed. I do not think you can ask your Lordship to do anything else.

MR JUSTICE MAY: I do not think you can ask for more than that, can you?

MISS HARRISON: No, my Lord.

MR JAY: No doubt the Secretary of State will reconsider the matter?

MISS HARRISON: My Lord, yes. The Applicant is Legally Aided. I ask for the costs of today to be borne by the Secretary of State and a Legal Aid Taxation of those costs.

MR JAY: That follows from your Lordship's judgment. I am instructed to ask for leave to appeal to the Court of Appeal.

MR JUSTICE JAY: I refuse you leave. Thank you very much.