QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ISMET ALA
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Ashley Underwood QC (instructed by The Treasury Solicitors) for the Defendant
Crown Copyright ©
Mr Justice: Moses
"3. The question for the Secretary of State is whether the potential interference with your client's right to respect for his family life, if he were to be returned to Germany, would be proportionate and commensurate when balanced against his legitimate concerns in the public interest to maintain a credible and effective immigration control to the United Kingdom, and to deter abuse of the asylum system (sic).
4. Parliament has set a mandatory requirement for a foreign national seeking settlement in the U.K as a foreign spouse to hold prior entry clearance for that purpose. The Secretary of State attaches the greatest weight to this mandatory requirement and he is firmly of the view that this requirement should be waived only in the most exception of circumstances."
"The interference to your client's right for respect to family life would be temporary and would obtain only for the duration of the time it would take for him to apply for the requisite entry clearance and for his application to be processed."
"11. Your client should not profit by his unlawful travel to and presence in, this country to the disadvantage of those who obtain the means to enter and remain in the U.K lawfully. Were the Secretary of State to permit persons in your client's situation to remain in the United Kingdom this would run contrary to his duty to Parliament to maintain a credible and effective immigration control."
"Your client is a failed asylum seeker who has no status in this country and therefore would not come within the family links policy."
The Claimant's Arguments on Proportionality
The statutory regime
" A person who alleges that an authority has, in taking any decision under the Immigration Act relating to that person's entitlement to enter or remain in the United Kingdom, racially discriminated against him or acted in breach of his human rights may appeal to an adjudicator against that decision."
"An authority acts in breach of a persons human rights if he act, or fails to act, in relation to that other person in a way which is made unlawful by Section 6 (1) of the Human Rights Act 1998."
"(a) The Secretary of State has certified that
(i) The Member State has accepted that, understanding arrangements, it is the responsible state in relation to the claimant's claim for asylum; and
(ii) in his opinion, the claimant is not a national or citizen of the member State to which he is to be sent;
(b) The certificate has not been set aside on an appeal under Section 65.
(3) Unless a certificate has been issued under Section 72 (2)(a) in relation to a person, he is not to be removed from the United Kingdom
(a) if he has an appeal under Section 65 against a decision to remove him in accordance with this section pending; or
(b) before the time for giving notice of such an appeal has expired."
"Appeals under Section 65
20(1) A person is not to be required to leave or be removed from the United Kingdom if an appeal under Section 65 is pending against the decision on which that requirement or removal would otherwise be based."
"For the purposes of this part (Part IV)
(a) An authority racially discriminates against a person if he acts, or fails to act, in relation to that person in a way which is unlawful by virtue of Section 19B of the Race Relations Act 1976;
(b) An authority acts in breach of a person's human rights if he acts, or fails to act in relation to that other person in a way which is made unlawful by Section 6(1) of the Human Rights Act 1998.
(3) Subsections (4) and (5) apply if, in proceedings before an Adjudicator or the Immigration Appeal Tribunal on an appeal, the question arises as to whether an authority has, in taking any decision under the Immigrations Acts relating to the appellants entitlement to enter or remain in the United Kingdom, racially discriminated against the appellant or acted in breach of the appellant's human rights.
(4) The Adjudicator, or the Tribunal, has jurisdiction to consider the question.
(5) If the Adjudicator or the Tribunal, decides that the Authority concerned
(a) racially discriminated against the appellant; or
(b) acted in breach of the appellant's human rights, the appeal may be allowed on the ground in question."
By paragraph 21 (1) of Schedule 4:-
"On an appeal to him under Part IV an Adjudicator must allow the appeal if he considers
(a) That the decision or action against which the appeal is brought is not in accordance with the law or with any immigration rules applicable to the case, or
(b) If the decision or action involved the exercise of discretion by the Secretary of State or an officer, that the discretion should have been exercised differently,
but otherwise must dismiss the appeal.
(3) For the purposes of sub paragraph (1), the Adjudicator may review any determination of a question of fact on which the decision or action was based.
(4) For the purposes of sub paragraph (1)(b), no decision or action which is in accordance with the immigration rules is to be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so."
"A person who has been, or is to be, sent to a Member State or a country designated under Section 12(1)(b) is not, while he is in the United Kingdom, entitled to appeal
(a) Under Section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There should be no interference by public authority with the exercise of this right except such as it in accordance with the law and is necessary in a democratic society in the interest 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 rights and freedoms of others".
The nature of the adjudicator's jurisdiction on an appeal under Section 65(1) of the 1999 Act
"so clearly without substance that the appeal would be bound to fail".
(See Lord Hope paragraph 33-34 in R (Yogathas and Thangarasa) and Secretary of State of the Home Department  3WLR 1276). This court, on an application for judicial review, must determine whether the decision was reasonably open to the Secretary of State having regard to the anxious scrutiny which must be deployed where it is alleged a claimant's rights under Article 8 have been infringed (see Richards J in R (Razgar v Secretary of State for the Home Department  EWHC 2554 (Admin) Court at paragraph 13, a case to which I will have to return later). But although the court is not, in form, seeking to substitute its own view as to whether the claimant's allegation of the breach of Article 8 must clearly fail, in substance there is no discernable space between this court reaching a conclusion that the claimant has an arguable case and deciding that no reasonable Secretary of State could properly conclude that the case must clearly fail (see Richards J in Razgar at paragraph 14 and R (Changuizi) v Secretary of State of the Home Department  EWHC 2569 at paragraph 46. Once a court, exercising a judicial review jurisdiction, has determined that a claimant has an arguable case of a breach of his human rights it must follow that no reasonable Secretary of State could conclude that such an argument was bound to fail.
"The striking of a fair balance lies at the heart of proportionality. In Sporrong and Lonnroth v Sweden  5 EHRR 35, para 69, the court said "The court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights The search for this balance is inherent in the whole of the Convention." (See para 26 page 1161).
" . the function of the court in a case such as this is to decide whether the Secretary of State has struck the balance fairly between the conflicting interests of Mr Samaroo's right to respect of his family life on the one hand and the prevention of crime and disorder on the other. In reaching its decision the court must recognise and allow to the Secretary of State a discretionary area of judgment."
"In my judgment, in a case such as this, the Court should undoubtedly give a significant margin of discretion to the decision of the Secretary of State. The convention right engaged is not absolute. The right to respect for family life is not regarded as a right which requires a high degree of constitutional protection. It is true that the issues are not technical as economic and social issues often are. But the Court does not have expertise in judging how effective a deterrent is a policy of defaulting foreign nationals who have been convicted of serious drug trafficking offences once they have served their sentences."
"The court has clearly said that the issue for it is to determine whether the deportation struck a fair balance between the relevant interests. That is what proportionality requires. In my view, the margin of appreciation does not affect the nature of the test to be applied or the question to be asked." (Paragraph 24).
Similarly the question to be asked by an adjudicator, the test to be applied by him, in determining whether the Secretary of State has acted in breach of the claimant's rights under Article 8, remains the same as the test to be deployed by the Administrative Court or the European Court of Human Rights itself.