QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
on the applications of
MAHMOUD BAIAI & IZABELA TRCINSKA
JOINT COUNCIL FOR THE WELFARE OF IMMIGRANTS
Written submissions were supplied on 19,24 and
26 May 2006
Crown Copyright ©
(This does not form part of the judgment).
The Honourable Mr. Justice Silber:
"as to whether the Secretary of State was entitled to refuse the application of the claimant Mahmoud BAIAI (CO/1460/2005) for a Certificate of Approval ("COA") without infringing his rights under the European Convention on Human Rights"
II. The Chronology.
a. the first claimant was born on 2 September 1971. He was and remains an Algerian national. According to his witness statement of 2 March 2005, he entered the United Kingdom as an illegal immigrant in February 2002. In about October 2004 he started living with the second claimant, whom he had met two months earlier. She is a Polish national who was born on 2 July 1979 and who is working in the United Kingdom following Poland's accession to the EU and so she is an EEA/EEC national;
b. under cover of a letter of 31 January 2005, the first claimant applied to the Home Office for a COA and this was refused by the Secretary of State in the first refusal
letter dated 15 February 2005 in which it was explained that he had no valid leave to enter or remain in the United Kingdom and that there were no exceptional compassionate circumstances applicable in his case;
c. the immigration authorities first became aware of the first claimant's presence when he applied for a COA to marry after what he described as his illegal entry to the United Kingdom. When he received the first refusal letter, the first claimant was notified that he was required to make his own arrangements to leave the United Kingdom immediately;
d. by a letter dated 11 April 2005, the Secretary of State requested the first claimant to attend an interview to ascertain his immigration status in accordance with the usual practice of the Secretary of State when a person present in the United Kingdom comes to the attention of the authorities;
e. on 12 April 2005, the first claimant's legal representatives replied stating that they did not consider such an interview to be appropriate in the light of the judicial review application which the first claimant had instituted on 8 March 2005 in order to challenge the first refusal letter and the section 19 regime;
f. in his judicial review application , the first claimant advanced reasons not only why the section 19 regime was unlawful but also why the Secretary of State ought to exercise his discretion to grant him a COA notwithstanding the fact that he did not satisfy the relevant criteria. The Secretary of State considered these matters and he issued the second refusal letter dated 15 April 2005, giving additional reasons for maintaining his refusal to grant a COA to the first claimant;
g. in response to the letter of 12 April 2005, the Secretary of State sent a status questionnaire on 9 May 2005 which the first claimant was asked to complete and to return so that the Secretary of State could determine the immigration status in the United Kingdom of the first claimant. The first claimant was also informed that his failure to complete and return the form or to attend an interview which he had already declined to do would result in the Secretary of State considering him to have entered and remained in the United Kingdom illegally;
h. the first claimant did not complete the questionnaire but in a letter dated 16 May 2005, the first claimant's legal representatives explained that
"Our client has never claimed asylum and does not intend to do so. It is conceded that he entered the UK as an illegal entrant in or about February 2002. No doubt you are aware that our client has obtained permission to apply for judicial review. His case will be fully argued before the court and we do not believe that it is appropriate to return this questionnaire to you at this stage";
j. as the first claimant had admitted through his legal representatives that he had entered the United Kingdom illegally, the Secretary of State did not pursue his request for the first claimant to attend for an interview or to complete the questionnaire as the purpose of interviewing the first claimant was to ascertain whether he had entered the United Kingdom lawfully;
k. by letter dated 24 May 2006, the Secretary of State served on the first claimant form IS96ENF, which specifically stated that the papers which granted him temporary admission were served on the first claimant "as an illegal immigrant" and the first
claimant was informed of the reporting and residence restrictions imposed on him. He was also notified that he was liable to be detained;
l. on 15 May 2006, the first claimant was provided with form IS 75 and he was asked to provide the immigration authorities with any reason why he might consider himself eligible to remain in the United Kingdom and any justification as to why he should not be removed or required to leave the United Kingdom;
m. by a letter dated 20 June 2006, the representatives of the first claimant returned the form IS 76 stating that the first claimant had already explained why he should be allowed to remain in the United Kingdom and confirming why he did not wish to advance any other grounds; and
n. on 23 April 2006, the first claimant was granted an extension to his temporary admission.
III. The Section 19 Scheme
immigration control is able to marry, otherwise than in accordance with the rites of
the Church of England under Part II of the Marriage Act 1949. A person "subject to
Immigration control" is a person who is not an EEA national and who requires leave
to enter or remain in the UK: section 19(4) (a). The first claimant, who is a national of Algeria, is such a person.
"(3) The superintendent registrar shall not enter in the marriage notice book notice of marriage to which this section applies unless satisfied, by the provision of specified evidence, that the party subject to immigration control-
(a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom;
(b) has the written permission of the Secretary of State to marry in the United Kingdom, or
(c) falls within a class specified for the purpose of this paragraph by regulations made by the Secretary of State."
application for immigration status or an appeal outstanding for 18 months or third have compelling compassionate circumstances, which make it unreasonable to expect the couple to travel and marry abroad, the expectation is that either the couple should travel abroad and marry, and then for the partner requiring entry clearance to obtain this from abroad on the basis of his or her marriage; or for the individual requiring entry clearance to travel abroad (with or without his or her fiancée) to obtain entry clearance, from abroad, on the basis of his intended marriage in the UK. The compassionate circumstances may be seen to be applicable where neither expectation is reasonable.
IV. The Background to the Refusal Letters.
V. The Relevance of the First Judgment.
"..(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made"
19. It follows that the fact that an applicant for a COA is an illegal immigrant must be a relevant factor on the issue of whether the grant of the COA would be consistent with effective immigration control. When I was given the agreed list of issues to be resolved in the first judgment, none were specifically concerned with the position of the illegal immigrant applicant. Thus, the specific consequences of an applicant being an illegal immigrant were not considered in the first judgment and nothing in it resolves the convention rights and in particular the article 12 rights of a person in that position. In consequence, the declaration of incompatibility does not mean that the Secretary of State was obliged to grant a COA to an illegal immigrant such as the first claimant or that that his decision to refuse a COA to the first claimant can be quashed.
Secretary of State considered carefully the first claimant's application for a COA including his personal circumstances and second that he refused the application after having considered the first claimant's full circumstances and his representations as is particularly clear from the second refusal letter.
VI .The Article 12 Claim.
"Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right"
(i) "In my view, the jurisprudence of the European Commission on Human Rights permits the introduction of legislation for the purpose of avoiding immigration control notwithstanding that this legislation might interfere with the right to marry." (paragraph 57 of the first judgment);
(ii) "…'the legislative objective [of preventing sham marriages entered into so as to avoid immigration control] is sufficiently important to justify limiting the fundamental [article 12 right]'" ...paragraph 73 of the first judgment); and
(iii) "...the article 12 claim succeeds as the section 19 regime is not proportionate and it constitutes a substantial interference with article 12 rights…" (paragraph 110 of the first judgment)
26. The reason why the section 19 regime was not proportionate in respect of those who were lawfully in the United Kingdom was because I concluded that that the regime failed to comply with two of the three requirements of proportionality specified in the classic approach propounded by Lord Steyn in R v Secretary of State for the Home Department ex parte Daly  2 AC 532, 547, namely the requirements that:
"..(ii) the measures designed to meet the legislative objectives are rationally connected to it;
and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective".
"I would obtain permission to remain in the United Kingdom under EU law and EU residence document".
period in the light of the serious delays in the immigration and the immigration appeal system.
(ii) Are "the measures [in the section 19 regime] designed to meet the legislative objectives … rationally connected to it" for an illegal immigrant?
"there is a distinction between (i) those who have leave to enter or remain (albeit short-term or limited leave) and so have a right to be present in this country; and (b) those who have no such right, being either illegal entrants or over-stayers".
"..considers that the importance of maintaining effective immigration control provides a powerful justification for his policy in relation to someone in[the claimant's] position, who is an illegal immigrant, having no leave to enter or remain in the [United Kingdom]" .
i."A state has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations" per Lord Phillips of Worth Matravers MR at 861g ;
ii."Firm immigration control requires consistency of treatment between one aspiring immigrant and another" per Laws LJ at 850g ; and that
iii."if the established rule is to the effect- as it is- that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited to remain in the United Kingdom) must obtain an entry clearance in his country of origin , then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no legitimate claim to enter, would in the exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin" per Laws LJ at 850 g-h .
"disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin".
38. All these consequences follow from the need to have a proper and fair system of immigration control, which precludes any form of queue-jumping by illegal immigrants over those having to apply from abroad for permission to come to the United Kingdom. It follows that a policy of precluding illegal immigrants from obtaining COAs and in consequence from obtaining further rights is rationally connected to the policy of immigration control as otherwise, in the words of Laws LJ which I have just quoted, it would be "manifestly unfair to other would-be entrants".
41. In reaching that conclusion, I have considered, but rejected, the submission of JCWI that "nothing
in the case law shows an ability to refuse to allow an individual to enter into a genuine marriage on the basis of his or her immigration status rather than a decision that the marriage is not genuine". It is clear that the article 12 right does not mean that person is entitled to marry in the country of his or her choice and there is no case which supports such a proposition.
"Article 12 of the Convention does not guarantee the right to marry in a particular country, or under a particular legal system."
66 (which I explained in paragraphs 53 and 54 of the first judgment) establish the right of a state to refuse to consent to a marriage on the basis of immigration control. In the light of this conclusion and the factors set out in paragraphs 33 to 40 above, I conclude that that the approach of the Secretary of State to refusing a COA to an illegal immigrant was "rationally connected" to the objective of effective immigration control. In reaching that conclusion, I have also considered the application to an illegal immigrant of the five reasons which I outlined in paragraphs 78 to 89 of the first judgment as preventing the section 19 regime being compatible with the article 14 right of those who were lawfully in this country. Those reasons are not applicable to those (like the first claimant) who are not lawfully in the United Kingdom as their application for COAs can be refused lawfully on thee discreet and cogent ground of being pursuant to the policy of immigration control against those who have no right to be in the United Kingdom and which I have explained in paragraphs 33 to 40 above. It is this crucial factor, which "trumps" or overrides the five reasons set out in the first judgment. The second reason set out in paragraphs 79 to 86 of the first judgment (which is probably the most important reason for my decision) relates to the treatment of religious non-Anglican marriages but that reasoning does not apply where the applicant for a COA, like the first applicant, intends to marry in a registry office; as I explained in paragraph 71 of the first judgment, there was a great deal of evidence which shows that such marriages are regularly used for sham marriages.
47. As I explained in the first judgment, I concluded that the section 19 regime for those lawfully in this country was not rationally connected to meet its legislative objectives. In my view, the position is different for those illegal entrants in the United Kingdom as the need for proper immigration control would mean that a policy of refusing to give COAs to those who are illegally in this country (in the absence of compassionate circumstances) would be rationally connected to the objectives of having proper immigration control and of
avoiding queue-jumping, as I have described in the last two paragraphs.
"As I have concluded for the reasons which I have set out, the measures in the regime designed to meet the legislative objectives are not rationally connected to it, and so it follows that the regime is not proportionate and that it constitutes an infringement of Article 12 rights".
(iii)Are "the means used to impair the right or freedom ... [in the section 19 regime] no more than is necessary to accomplish the objective" for an illegal immigrant?
"70. In approaching this issue, as noted in R v Johnstone  1WLR 1736, 1750, Para 51, courts should have in mind that theirs is a reviewing role. Parliament is charged with the primary responsibility for deciding whether the means chosen to deal with a social problem are both necessary and appropriate. Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a
matter for Parliament. The possible existence of alternative solutions does not in itself render the contested legislation unjustified: see the Rent Act case of Mellacher v Austria ...1989) 12 EHRR 391, 411, para 53. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person's Convention right. The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation. The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene".
53. If this were not so and illegal immigrants were entitled to marry and obtain rights of residence, then in the words of Laws LJ in Mahmood (supra),which I have quoted in paragraph 36 above, this would "disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin". In addition, there would be every incentive for prospective immigrants to avoid the need to apply for and then wait for permission to enter the United Kingdom because once they were here as illegal immigrants, they could marry an EEA national and obtain a right of residence. In my view the approach of the Secretary of State to the application by the first claimant as an illegal immigrant for a COA to marry in a registry office was "necessary to accomplish that objective [of firm immigration control]".
(iv) Conclusions on the article 12 claim.
VII. The Article 14 claim
"The enjoyment of the rights and freedom set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
(ii) Was there unjustified discrimination on grounds of religion and nationality against the first claimant in refusing his applications for a COA ?
place in registry offices as I pointed out in paragraph 71 of the first judgment. In my view this difference constitutes very weighty reasons, which would and do justify the difference in treatment.
(iii) Conclusions on the Article 14 claim.
VIII. The Effect of the First Claimant having been granted Temporary Admission
(ii) The statutory regime relating to temporary admission
"(1) A person liable to detention or detained under paragraph 16 above may, under the written authority of an immigration officer, be temporarily admitted into the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him."
"Construction of references to entry, and other phrases relating to travel
A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks and on disembarkation at a port shall be further deemed not to enter the United Kingdom so long as he remains in such area(if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to, do so as long as he is detained or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to this Act".
(iii) The submissions.
as an illegal immigrant because temporary admission is not a positive immigration status. It is contended on behalf of the first claimant that once he was granted temporary admission, then he was "at large" and in consequence entitled and able to obtain a COA because:
(a). those who have been granted temporary admission are deemed not to have entered the United Kingdom illegally: section 11(1) Immigration Act 1971;
(b). once a person who is granted temporary admission, he is "at large" in the United Kingdom: paragraph 21(2) Schedule 2 Immigration Act 1971;
(c). a person, who has temporary admission and is "at large", is lawfully present in the United Kingdom;
(d). the grant of temporary admission does not disqualify the person concerned from obtaining a COA because the person concerned is here pursuant to the express authorisation of an immigration officer under paragraph 21 of Schedule 2 Immigration Act 1971; and
(e). Reliance for that proposition is placed on the comments in Szoma v Secretary of State for Works and Pensions  3 WLR 955 [24-28] of Lord Brown of Eaton-under Heywood, who when considering the effect of section 11 of the Immigration 1971, stated (with my emphasis added) that:
"25…In my opinion, however, section 11's purpose is not to safeguard the person admitted from prosecution for unlawful entry but rather to exclude him from the rights (in particular the right to seek an extension of leave) given to those granted
leave to enter…, it would in my judgment be quite wrong to carry the fiction beyond its originally intended purpose so as to deem a person in fact lawfully here not to be here at all….
27…Unless, submits [counsel for the Secretary of State], the applicant's presence in the United Kingdom has been positively authorised by a specific grant of leave to enter, rather merely than by temporary admission, his disqualification from the benefits should not be found displaced.
28. I would reject this argument…."
"…'illegal immigrant' means a person (a) unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, or (b) entering or seeking to enter by means which include deception by another person, and includes also a person who has entered as mentioned in paragraph (a) or (b) above"
his convention rights as before he was granted temporary admission.
IX. General Comments.
incompatible with the ECHR particularly (but not exclusively) because there is no reason or evidence put forward to explain why those wishing to marry in various non-Anglican religious marriages (whether in a Catholic, Hindu, non-conformist or any other non-Anglican ceremony) require COAs while those marrying pursuant to Anglican rites do not. Furthermore, as it appears that the Secretary of State did not consider whether non-Anglican religious ceremonies were being used for sham marriages, an additional reason why the section 19 regime is incompatible with the ECHR is because the Secretary of State is not entitled to deference for his views as a claim to deference is dependent on the person to whom deference is due using his knowledge or status consciously considering an issue and then reaching a conclusion on it. In any event, those covered by the section 19 regime have to pay £135 with their application for a COA and if the period of their right to remain is not for a long enough period, their application for a COA is automatically refused in the absence of compassionate circumstances.
all matters in dispute were not set out in the list of issues which I was asked to determine in the first judgment. The long list of 22 issues and many sub-issues, which I was asked to resolve for the purpose of the first judgment, surprisingly did not deal with the position of illegal immigrants even though it has always been the case for the Secretary of State that the first claimant was an illegal immigrant and the position of illegal immigrants was mentioned during submissions. In future, it is imperative that if and when a list of issues for determination by a judge is being compiled, counsel should ensure that all the necessary issues are covered without the need for further submissions and a further judgment.
counsel's other commitments before the time when my decision was required. So it came about that I was required to give the present judgment without an oral hearing. Although I received helpful written submissions, I was deprived of the great benefits of an oral hearing and this made my task substantially harder than it would have been if there had been an oral hearing. I hope in future that this case will not be regarded as a precedent for obtaining judgments without oral hearings.