England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		10th May 2001

1. SIR OLIVER POPPLEWELL: In this case the claimant seeks, pursuant to leave granted by the single judge, to challenge the decision of the Secretary of State for the Home Department dated 27th July 2000 informing the claimant's solicitor that the policy announced by the under Secretary of State for the Home Department, Mr O'Brien, on 24th February 1999, and further explained in a letter dated 19th April 1999 from the Immigration Service Headquarters, only applied to enforcement cases and not to port of arrival decisions, as in this case. What is sought is a declaration that the policy document covers port of arrival decisions, and/or that if it does not it is irrational, and/or that the claimant and his family should not be required to leave the country.
2. The facts can be quite shortly stated, and they are these. On 16th September 1993 the claimant and her daughters, Nermin (born 23rd October 1984) and Hidayet (born 21st September 1986) presented at the port on arrival and sought leave to enter as dependants of the claimant's husband, Savas Kadi. Mr Kadi's asylum application had been made on 3rd August 1993 and was pending determination. The claimant and her daughters were not granted leave to enter as dependants of Savas Kadi, rather they were granted temporary admission as persons liable to detention. It means that they were and have remained "a port case".
3. Mr Kadi's asylum application was refused on 26th April 1994. He appealed against that refusal. However, on 28th September 1995, and while that appeal was still pending, he returned voluntarily to Cyprus and did not return to attend the hearing of his appeal in November 1995. His appeal was treated as abandoned.
4. The day before her husband's appeal was to be heard, the claimant applied for asylum basing her application on substantially the same facts as her husband's asylum claim. On 1st March 1996 the Secretary of State refused the claim. On 17th March 1996 the claimant's husband returned to the United Kingdom and made a second asylum claim at his port of arrival. This claim was refused on 27th May 1996. There were appeals against that refusal and the Adjudicator dismissed those appeals in January 1998. Leave to appeal to the Immigration Appeal Tribunal was refused in March 1998, and removal directions were set for April 1998.
5. Thereafter there was an exchange of correspondence between those acting on behalf of the claimant making representations about the daughter Nermin, who has some medical problem. In April 2000 Mrs Kadi's solicitors wrote submitting that indefinite leave to remain should be granted on the basis of the seven year residence concession, to which I will refer in a moment. This was refused and steps were taken to secure their removal. They lodged papers for judicial review and removal has not now taken place.
6. The statutory background involved in this case is this. There are three types of persons who may be required to leave the country (I use that in the most neutral way). There are illegal entrants, there are overstayers, and there are port arrival cases. They are governed by separate provisions in statutes and I refer to the history of the statutory provisions by reference to Mr De Mello's helpful skeleton argument.
7. An illegal entrant is defined in section 33(1) of the Immigration Act 1971 and notably includes one who has entered or who is seeking to enter the United Kingdom unlawfully. Thus, it includes one who has not as yet entered the United Kingdom as understood with reference to section 11(1)1A 1971. They are subject to removal directions under Schedule 2 paragraphs 8 and 9. They may be detained: paragraph 16(2) Schedule 2 1A 1971. They may be removed from the United Kingdom: paragraph 10 of Schedule 2. They are liable to criminal sanctions: section 24(1)(a) 1A 1971. Once detected they may be granted temporary admission: paragraph 21(1) Schedule 2. As a matter of administrative arrangements at the Home Office they are dealt with by an illegal entrant section.
8. Overstayers liable to deportation are those falling within section 10(1)(a) of the Immigration Asylum Act 1999 - remaining beyond leave limited leave. They are liable to prosecution: section 24(1)(b) 1971 Act. They are liable to removal: section 10(7) and Schedule 2 paragraphs 10, 11, 16-8, 21, 22, 24 and the Immigration (Removal Directions) Regulation 2000 S1 2000/2243 which came into force on 2nd October 2000. They are liable to detention once they have stayed beyond their limited leave: paragraph 16 Schedule to the 1971 Act. They may be granted temporary admission: paragraph 21 Schedule 2. They are governed administratively by a detention body who act on behalf of the Home Office.
9. Port arrival cases are dealt with quite separately administratively by the Home Office and are not governed by the administrative rules of illegal entrants or those liable to be deported. The port arrival cases are persons not given leave to enter: see section 11(1) of the 1971 Act and paragraph 2 Schedule 2. They may be given temporary admission: paragraph 21 Schedule 2. They are liable to detention: paragraph 16 Schedule 2. Usually they are not liable to prosecution unless they abscond: section 24(1)(d)(e). It is doubtful whether they are liable to prosecution under section 24A(1)(a) but are liable under section 24A(1)(b) of the 1971 Act as amended by the 1999 Act. Mr De Mello says there is no material difference between each category of person who is liable to removal from the United Kingdom.
10. Now the issue in this case relates to a policy statement by Mr O'Brien, the Under Secretary at the Home Office. The policy statement, dated 24th February 1999, reads as follows:

"For a number of years it has been the practice of the Immigration Nationality Directorate not to pursue enforcement action against people who have children under 18 living with them who have spent 10 years or more in this country, save in very exceptional circumstances.

We have concluded that 10 years is too long a period. Children who have been in this country for several years will be reasonably settled here and may, therefore, find it difficult to adjust to life abroad. In future the enforced removal or deportation will not normally be appropriate where there are minor dependent children in the family who have been living in the United Kingdom continuously for 7 or more years. In most cases, the ties established by children over this period will outweigh other considerations and it is right and fair that the family should be allowed to stay here. However, each case will continue to be considered on its individual merits."

11. Factually, these children have been here for a continuous period of seven years and, therefore, if this policy applies to them they are covered by it.
12. The Immigration Service Headquarters on 19th April issued a letter as follows:

"The concession announced by Mr O'Brien on 24th February applies to enforcement cases where one or both of the parents is subject to action to remove them from the United Kingdom, either by deportation or removal as an illegal entrant. It applies to all cases irrespective of whether a deportation order has been signed."

13. The issue which arises in this case is whether the phrase "enforcement action" or "enforced removal" is limited to those cases of deportation and illegal entry, or whether it also includes port cases. It is necessary, therefore, in construing the policy statement of Mr O'Brien, not to look at it in isolation, in my judgment, but to have regard to the previous policy statements which have been issued over the years. To that end, it is necessary to go through a number of the policy statements to see how they have developed.
14. The first one in time is DP/293 and instruction to IES (1) and (2). "DP" signifies that it is a deportation document and "IES" indicates that it is an instruction to the illegal entry service. That document, which is dated January 1993, starts with "Marriage Policy":

"1. All deportation and illegal entry cases must be considered on their individual merits."

15. It says nothing about port entry.
16. The next one is DP4/95 (again it has the initial DP) and relates to:"Deportation And Removal Of Children Whose Parent Or Parents Are Subject To Deportation Action." Under 2:

"The purpose of this notice is, therefore, to advise caseworkers that deportation action against children should in future be considered at the outset..."

17. Plainly it does not govern port cases.
18. In 1996 there were three notices: DP3/96, DP4/96 and DP5/96. I accept the argument by Mr Fordham that they are to be read together. DP3/96 is also an instruction to IES and says this:

"This notice provides guidance, in general terms, on the consideration of cases of those persons liable to be removed as illegal entrants or deported who have married a person settled in the United Kingdom. This notice supersedes DP2/93 which is hereby cancelled."

19. Under paragraph 3:

"Where persons do not qualify for leave to remain under the Immigration Rules and are to be considered for deportation, or where they are illegal entrants liable to removal, but seek nevertheless to remain on the basis of marriage in the United Kingdom, the following paragraphs of this guidance apply.

4. Where enforcement action is under consideration..."

and there is further reference to enforcement action.

20. Paragraph 7 deals with children. Paragraph 8 deals with marriages that postdate enforcement action and that is dated 13th March 1996.
21. DP4/96 is a DP document and also an instruction to IES and that is also March 1996. It reads:

"Children

Introduction

This notice provides guidance, in general terms, on the consideration of cases of those persons liable to be removed as illegal entrants or deported who are either children on their own here or who are parents who have children present in the United Kingdom. It supplements the advice given in DP3/96 about the consideration of marriage cases involving children with the right of abode, DP5/96 which gives guidance on the consideration of cases involving children who have been resident for 10 or more years and DP4/95 which gives guidance on the use of section 3(5)(c) of the Immigration Act 1971."

22. It is therefore clear that DP4/96 is to be read in conjunction with DP5/96, which dealt with the guidance that a consideration of cases involving children who have been resident for 10 years (the 10 years being reduced by Mr O'Brien's policy statement to seven years).
23. Paragraph 5:

"In all cases the longer the child has been here the greater will be the weight to be attached to this as a factor; but the general presumption will be that a child who has spent less than 10 years in the United Kingdom would be able to adapt to life abroad. (See DP5/96 for cases...)

Divorced and separated parents

6. Deportation or illegal entry action should not necessarily be conceded where a person liable to deportation...

7. Enforcement action should normally proceed in these cases."

24. Then we come to DP5/96 which is not only a DP document but it is an instruction to IES:

"DEPORTATION IN CASES WHERE THERE ARE CHILDREN WITH LONG RESIDENCE

Introduction

The purpose of this instruction is to define more clearly the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents who have children who were either born here and are aged 10 or over or where, having come to the United Kingdom at an early age, they have accumulated 10 years or more continuous residence."

25. In my judgment deciding what the phrase "enforcement action" means DP/96 is to be read in conjunction with DP4/96 and DP3/96 as covering illegal entrants or those liable to be deported but was not intended and does not cover port cases.
26. The policy then sets out a number of factors to be taken into account and then we get the policy statement and the letter from the Immigration Services. Additionally, as a guide to assistance, there is the extract from Butterworths Law which reads at paragraph 35:

"Whilst it is important that each individual case must be considered on its merits, there are specific factors which are likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who have children who have lengthy residence in the United Kingdom. For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not usually proceed with enforcement action in cases where a child was born here and has lived here continuously to the age of [seven] or over, or where, having come to the United Kingdom at an early age, they have accumulated [seven] years or more continuous residence."

27. Then there is a note which reads:

"This text implements the incorporation of old DP5/96 into the caseworking instructions for the purposes of the new Integrated Caseworking Directorate with a modification that references to ten years in DP5/96 have now to be read as references to seven years: hence the square brackets. In a letter dated 19 April 1999 from Immigration Service Headquarters it was confirmed that this concession applies to all enforcement cases, ie where one or both parents are subject to removal either by deportation or as illegal entrants..."

28. Mr De Mello has mounted a formidable argument on the basis that DP5/96 and the policy statement do not specifically refer to illegal entrants or deportation but simply use the word "enforcement action" "enforcement removal" and that of itself is perfectly capable of governing port entry and it is to be contrasted with other DPs where the phrase "deportation" and/or "illegal entrants" is specifically used.
29. Secondly, he drew my attention to an amendment made to the 1971 Act by section 28 of the Immigration and Asylum Act 1999. This came into force after the policy statement. It reads:

"Offences

In the 1971 Act after section 24 insert 24A.

A person who is not a British citizen is guilty of an offence if by any means, which include deception by him, he obtains or seeks to obtain leave to enter or remain in the United Kingdom, or he secures or seeks to secure the avoidance, postponement, or revocation of enforcement action against him."

30. Paragraph 2 is particularly important:

"Enforcement action in relation to a person means-

(a) the giving of directions for his removal from the United Kingdom, directions under Schedule 2 to this Act or section 10 of the Immigration and Asylum Act 1999;

(b) the making of a deportation order against him under section 5 of this Act, or

(c) his removal from the United Kingdom in consequence of directions or a deportation order."

31. 2(c) It is accepted governs port cases.
32. Therefore, says Mr De Mello, once Parliament has enacted what "enforcement action" means it must govern the interpretation of the phrase "enforcement action" in any document relating to immigration. Otherwise, it would be quite absurd to have the minister using it in one phrase and Parliament using it in another.
33. I have given close attention to that submission. It seems to me that when one looks at the DP documents it was never intended that enforcement action should cover a port. When one looks at the whole background to DP documents it is clear that it did not cover port cases and that the provision of the amendment by section 28 was designed simply to deal with criminal offences and for the purpose of bringing criminal proceedings. It has no relevance, in my judgment, to the policy announced by the minister.
34. Thirdly, says Mr De Mello, the provisions for removal are identical in illegal entry and deportation cases. It is quite irrational that they should be dealt with in a different way, and no good reason has been given for it. Some reason was put forward by MrFordham to distinguish the reasons why they are dealt with differently. Firstly, they are under separate statutory provision; secondly, they are dealt with administratively in a different way; thirdly, if you are declared an illegal entrant or liable to be deported there may be consequences such as difficulty in re-entering. But, says Mr De Mello, that is a difference without a distinction, and so far as justifying it it really does not make any sense.
35. I had my attention drawn to the decision of the House of Lords in the case of R v Ministry of Defence ex parte Walker [2000] 1 WLR 807. The facts are not germane but at page 810 Lord Slynn said:

"It is plainly open to the court on an application for judicial review to consider whether the Ministry of Defence has correctly interpreted the scheme (as originally made, or as subsequently modified) or whether its decision involves an error of law."

36. At page 812:

"It is not for the courts to consider whether the scheme with its exclusion is a good scheme or a bad scheme, unless it can be said that the exclusion is irrational or so unreasonable that no reasonable minister could have adopted it."

37. Page 183 Lord Slynn said:

"If I had come to the view that this phrase was imprecise enough for several meanings to be adopted, then I would not accept that the minister's interpretation of it was such as to be 'so aberrant that it cannot be classed as rational.'"

38. Lord Hoffman in dealing with the distinction between what was germane in that case, that is to say that those who fought in Bosnia were to be treated differently from those who fought in Northern Ireland, said:

"Speaking entirely for myself, I find the distinction a fine one.

He also observed:

"These are statements of policy concerning a discretionary ex gratia scheme under the prerogative powers of the executive and, consequently, decisions of the relevant body charged with carrying out the scheme are amenable to judicial review ... If the ministry fails correctly to interpret and apply the terms of the scheme, the decisions it takes are open to judicial review."

39. It is therefore plain that I am entitled to consider whether it is irrational. To that end my attention was also drawn to a number of cases relating to previous DP documents set out in the bundle of law reports provided by Mr Fordham. The first is R v Secretary of State for the Home Department ex parte Comfort Henry [1995] Imm AR 42. It was held there that:

"1. The guidance policy DP2/92 related only to deportation and illegal entry cases. It had no relevance to a case of refusal of leave to enter."

40. Harrison J said:

"...it seems to me quite clear that the policy relied upon by the applicant is expressed to relate to deportation and illegal entry cases. It may be thought that there should be another such policy to deal with other immigration cases, but it seems to me, on the face of it, to be a document which has been formulated, having regard to article 8 of the European Convention on Human Rights, to deal with deportation and illegal entry cases. Furthermore, it does seem, on what I have been told, that even if the policy had been applicable, it is unlikely, to put it no higher, that the applicant would have been able to bring herself within it. But I do not need to decide that matter because the policy does not apply to the circumstances of this case."

41. It will be noted that there was no suggestion in that case that because the policy was limited to illegal entrants and deportation and did not cover port entry that that was irrational.
42. In Abu Shahed v Secretary of State for the Home Department [1995] Imm AR 303, it was held by the Court of Appeal that:

"The Home Office guidance policy DP/2/93 related only to deportation and illegal entry cases: Comfort Henry approved."

43. At page 308 Sir Tasker Watkins said this having set out the policy statement:

"This does not, in my judgment, assist the applicant. He is not a spouse applying for entry clearance or for leave to remain. He has not applied for entry clearance, and leave to remain is not apt to his circumstances...

But the present case does not concern either a deportee or an illegal entrant. Mr Azhar submits nevertheless that its contents should by analogy have guided the Home Secretary into deciding whether or not to grant this applicant leave to enter outside the rules. [Then Comfort Henry is referred to, and Sir Tasker Watkins continues:]

I respectfully agree with him [that is Harrison J]. It would be quite wrong to apply policy statements to situation or circumstances other than those they are expressly stated to be applied to.

As for using the contents of that document by analogy, even if, which I doubt, that is a permissible thing to do I am confident that the Home Secretary in the present case used his discretion to act outside the rules compassionately and otherwise in a manner not open to complaint."

44. The next case is Jackson v Secretary of State for the Home Department [1996] Imm AR 243, that again referred to DP2/93 and was the decision of the Court of Appeal. At page 247 Simon Brown LJ said this:

"But even assuming that the applicant is an illegal entrant, what, I have to say, seems to me conclusive of this case against her is that the policy would not in any event here have availed her. In my judgment she must inevitably fallen foul of condition 2(a), namely that 'the marriage pre-dates enforcement action'...

The mere fact that the removal directions, specifying, one must note, a given time, on a given date, by a given flight, to a given destination, are couched in terms of

'directions given/proposed' is nothing to the point; nor, in the judgment, is the fact that the documents notifies the applicant of an entitlement to appeal to the independent appellate authorities.

I recognise of course that this was not the basis upon which the Home Office refused this application for leave to enter on the basis of marriage (as it happens, the second application made for leave to enter in the particular circumstances of this case). Rather the Home Office dealt with the matter on the simple basis that the policy document has no application whatsoever to those whom the Home Office choose to deal with as port refusal cases."

45. Then he said he would leave over for consideration whether an applicant was entitled to paint themselves in blacker colours to become an illegal entrant. He went on to say:

"It is a curious irony under the present policy guidance that an applicant may be better off the worse their immigration history and the more plainly they have offended immigration control. The Home Office answer to that is that those subject to port refusal of leave will be better placed than those deported under the provisions of sections 3(5)(a) and (b) or those removed as illegal entrants to obtain entry clearance once abroad with a view to returning to married life here. That, they contend, is the logic of denying the benefit of this policy to those who are treated as port refusal cases. Whether that is a sufficient basis for denying the benefit of the policy to those temporarily admitted (sometimes nowadays for years) can only now, following Abu Shahed, be decided by the House of Lords. That argument, too, if it arises, must be for another day."

46. There are a number, some six or seven cases, to which it is not necessary to refer by name, in which the legality of policy 3/96 and others of the policies have been considered. In none of the cases have any of the courts suggested that the policies are irrational or illegal. In those circumstances, I come clearly to the view that the construction, for which the Secretary of State contends, is the right construction. There is nothing invalid or irrational in the policy of excluding port cases.
47. Furthermore, in the instant case, unknown to the general public, the Secretary of State has in fact adopted the same approach by way of discretion to port cases as it does to illegal entrants and deportation cases. That appears in the statements of two witnesses on behalf of the Secretary of State. The first is Denis Ross Grey, who is a Senior Executive Officer in the Enforcement Policy Unit. He has been with the Directorate for 11 years. He sets out how administratively the various heads are dealt with, and he goes on to say that:

"...the home office recognises that it is appropriate, even in a case which is strictly beyond the scope of the policy concession, to have regard to that policy and the considerations to which it calls attention. My understanding is as follows: that the Ports Directorate are well aware of the 7-year concession; and that their practice in a port case where there are children with 7 years' residence is to have regard to the policy in addressing what action to take in the circumstances of the individual case. I understand this to have been the case here, and refer in this regard to the witness statement of Anita Borland."

48. The witness statement of Anita Borland, who is the Chief Immigration Officer of the Passenger Casework Session, where she has been since December 2000, says this:

"Although the policy concession deals only with 'enforcement' cases, and is not directed at port cases, it does not follow that no regard is had to the matters set out in the policy concession. On the contrary, I can confirm that decisions on removal in port cases, where there are marriage or children issues, such as described in the 'enforcement' policy concessions are reached having regard to the factors listed in those policies even though those policy concessions are not directly applicable. Mr Grey's statement at paragraph 24 of his witness statement is correct as regards the practice within the Ports Directorate."

49. The Secretary of State wrote a letter as follows:

"We can assure you that your representations have been fully considered by the 'Home Office' up to ministerial level."

50. She says in her statement:

"I can confirm that this is the case. I can also confirm, having read the contents of the file, that the reasoning for the decision was as follows:

(1) The family's asylum applications had been fully considered and properly disposed of. All other applications for entry had been carefully considered but had not been considered sufficiently exceptional or compassionate to warrant granting entry. (2) The application for exceptional leave to enter, for the whole family, on the basis of the children's seven year residence was based on the policy regarding enforcement action in cases where there are children with long residence. That was a deportation policy, which did not apply to on-entry, port cases such as this. However, in making a decision, the Home Office was mindful of the contents of the policy, which states that each application should be considered on its merit.

(3) In this case the family had a poor immigration history, having prolonged their stay here with multiple asylum claims. Members of the family also had a criminal history. Only the youngest child had spent the majority of her life here. There was a network of family in Cyprus who could help them to adapt to life there. Medical facilities were available in Cyprus to treat both Nermin's and Savas's conditions. In these circumstances the Home Office considered that return to Cyprus would not cause the children to suffer extreme hardship or put their health at risk."

51. If it is indeed the policy of the Secretary of State to treat the port entries in the same way as the deportees and illegal entrants, it is as well that everyone concerned with immigration should be fully aware of this and, no doubt, this judgment will give widespread publicity to that fact.
52. It follows that even if Mr De Mello's contentions were right and the Secretary of State were bound to consider the matter under the various heads, he has in fact done so and that would be a sufficient bar to a judicial review.
53. Mr De Mello made further powerful arguments on the effect of articles 8 and 14 of the European Court of Human Rights. He drew my attention to two authorities to which it is not necessary to refer because the Secretary of State has said this:

"The Defendant has invited the Claimant to make representations in relation to the alleged breaches of Article 8 and 14 of the ECHR direct to the Immigration Service. Following such human rights representations made by the Claimant, a review will be made of the case by the Immigration Service. If the subsequent review were adverse to the Claimant, she would be able to pursue a full appeal on human rights grounds under s.65 of the Immigration and Asylum Act 1999. She might of course be successful on such a claim."

54. No doubt the Immigration Service, in the light of the concessionary policy, will give careful consideration afresh to those representations.
55. In all those circumstances, it seems to me that the decision of the Secretary of State was justified and I shall for completeness sake dismiss the claim for judicial review.

MR DE MELLO: My Lord, only for completeness sake, may I, as a matter of formality, seek permission from you to appeal? I note what your Lordship has said in your judgment and I can find no fault in it.

SIR OLIVER POPPLEWELL: I think, Mr De Mello, you will have to go to the Court of Appeal.

MR DE MELLO: My Lord, your judgment, if I may say so, has been very helpful because it now sets out what the policy of the Home Office on port arrivals is, because that may not have been broadcast----

SIR OLIVER POPPLEWELL: Well, it served some purpose.

MR DE MELLO: I suspect it is the end of the case from our point of view.

SIR OLIVER POPPLEWELL: Thank you very much.

MR DE MELLO: My Lord, may I seek the equivalent of a legal aid certificate, it is called a public funding certificate.

SIR OLIVER POPPLEWELL: You can certainly have that.

MR DE MELLO I am most grateful, my Lord.

SIR OLIVER POPPLEWELL: I am grateful to both of you for the very helpful arguments.

MR FORDHAM: My Lord, may I make it clear that the Secretary of State makes no application for costs.

SIR OLIVER POPPLEWELL: Thank you very much.

-------