England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		7 April 2009

Mr Justice Nicol:

1. The Claimant is a citizen of the USA. His father was American. His mother was British. He and his family settled in Northern Ireland in 1967 when he was aged 7. He married and had children. He was granted indefinite leave to remain in the UK. In 2006 he was extradited to the Irish Republic to answer a charge of sexual assault on a child. He was tried, convicted and sentenced to 9 months imprisonment. On 12^th November 2006 he was deported to the USA. On 19^th November 2006 he flew to Glasgow. He was detained by an Immigration Officer, initially for further investigations to be made. On 21^st November 2006 he was refused leave to enter the UK on the ground that his presence was not conducive to the public good. He was held in detention until he was granted bail (on stringent terms) by McCombe J. on 7^th March 2007 shortly after the present application for judicial review was issued on 27^th February 2007. The application originally sought to compel the Secretary of State to reconsider the refusal of leave to enter. The Claimant's subsequent successful appeal and the later decision of the Secretary of State to restore his indefinite leave to remain made that superfluous. What remains of the application is his claim that he was unlawfully detained between 21^st November 2006 and 7^th March 2007.
2. The Claimant argues that he had an overwhelmingly strong claim to be granted leave to enter as a result of Article 8 of the European Convention on Human Rights. The Immigration Officer ought to have appreciated this and that, if the Claimant was refused leave, he would have had an unanswerable case on appeal to the Asylum and Immigration Tribunal. Since an appeal was bound to succeed, it should have been apparent to the Immigration Officer that, in the words of Woolf J. in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 at p.706E-F, "he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period." In consequence, it was not lawful for the Immigration Officer to authorise his detention.
3. Immigration Act 1971 s.4(1) authorises immigration officers to grant or refuse leave to enter the UK. Section 3A gives a parallel power to the Secretary of State, but it was Immigration Officers who took the decisions in this case. An immigration officer may also authorise the detention of a passenger pending his examination and pending a decision as to whether to refuse leave to enter – see 1971 Act Schedule 2 paragraph 16(1) . That was the power which was used against the Claimant between his arrival on 19^th November 2006 and the refusal of leave to enter on 21^st November 2006. The Claimant had initially contended that his detention during this period was unlawful, but that was not pursued by Mr Cox on behalf of the Claimant. When a person has been refused leave to enter an Immigration Officer may give removal directions – see 1971 Act Schedule 2 paragraph 8. Then paragraph 16(2) provides:

"If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under paragraph 8 …, that person may be detained under the authority of an immigration officer pending:

(a) a decision whether or not to give such directions;

(b) his removal in pursuance of such directions."

It was under this power that the Claimant was detained between 21^st November 2006 and 7^th March 2007. It is during that period that the Claimant maintains he was unlawfully detained.

4. Before I turn to the facts in a little more detail, it is convenient at this stage to examine the competing arguments as to the test which I should apply. Mr Cox accepts that the lawfulness of the decision to remove has to be gauged against the facts known to the immigration authorities. He would not distinguish between the actual immigration officer who took the decision, the Secretary of State or any of her other officials.
5. Mr Palmer, on behalf of the Secretary of State takes issue with two aspects of Mr Cox's formulation of the test. He accepts that the decision to detain can be rendered unlawful if the underlying refusal of leave to enter is tainted. However, he argues, the taint must take the form of either bad faith (which is not alleged in this case) or irrationality. Thus, he submits, if the refusal of leave to enter is one which no reasonable immigration officer could make in the traditional Wednesbury sense, the decision to detain which is dependent on it, will also be unlawful and the claim for unlawful detention can succeed. His first disagreement with Mr Cox's formulation is because, on his submission, it is unhelpful and unnecessary for the Immigration Officer to have to go through the exercise of trying to predict whether an appeal against refusal of leave to enter was bound to succeed.
6. I agree with Mr Palmer on this matter. There are some circumstances where the immigration authorities do have to consider the possibility of an appeal succeeding. The Secretary of State must make such an assessment in deciding whether further representations constitute a fresh claim for the purposes of Immigration Rules r.353. She must do so as well before certifying that an asylum or human rights claim is clearly unfounded for the purposes of Nationality, Immigration and Asylum Act 2002 s.94. However, these decisions are made necessary by the express wording or necessary implication of the Rules or legislation. There is nothing comparable in the power to detain in the 1971 Act Schedule 2. It is also notable that these two cases also relate to decisions by the Secretary of State (rather than an immigration officer). It is true that either the Secretary of State or an immigration officer may certify a claim under 2002 Act s.96 as being one which either was or could have been made in the course of an earlier claim or application. But a certificate under that section does not require a projection as to the likely success of a future appeal. A Wednesbury test protects passengers against detention which is consequent on refusals of leave to enter that are bizarre or wholly unreasonable. Mr Cox's test either adds nothing to this – in which case it would add superfluous complexity – or it sets a more stringent limitation - in which case I can see no statutory or other authority for it. In addition, Mr Palmer's test is applicable across the board. Mr Cox's test presupposes that there will be a right of appeal, but that will not always be so in the case of a refusal of leave to enter - see for instance 2002 Act ss.88, 89 and 96. Indeed, on the morning of the second day of the hearing, Mr Cox was inclined to agree that the test I should apply was a straightforward rationality one.
7. Mr Palmer's second disagreement with Mr Cox's formulation concerns the identity of the holder of the information in respect of which a rationality judgment is to be made. Mr Cox, as I have said, submits that I should look at the facts known to the Secretary of State, in other words, knowledge held by any immigration official. Mr Palmer argues that this is too wide. What matters is the information available to the actual immigration officer who took the decision to refuse leave to enter. Of course, immigration officials will consult their colleagues, but the Home Office is a vast repository of information and even diligent and conscientious officials will not always be aware of something which is held elsewhere in the organisation. There are examples of that in this case. On 4^th November 2006 (i.e. before the Claimant was deported from Ireland) his wife wrote to the Immigration and Nationality Directorate of the Home Office at Lunar House in Croydon with information about his background in Northern Ireland. On 9^th November 2006 an official in the correspondence team replied asking for information which would enable the Home Office to know who it was she was referring to. It is not known whether the Claimant's wife ever did reply. By the time (very much later) that the Claimant made a Data Protection Act request, this letter had been married up with the Claimant's file, but it cannot be shown that the Immigration Officer who authorised the Claimant's detention was aware of this. Mr Palmer would say that the rationality of the decision should not therefore be judged by reference to it. Another letter from the Claimant's wife which was written on 24^th October 2006 attached a number of documents which supported his claim to have had a long residence in Northern Ireland, including in March 2005. This letter has no addressee and so it cannot be known for certain to whom it was sent. This, also, was produced in response to the DPA request. But it as well cannot be shown to have been known to the Immigration Officer who authorised detention. Mr Palmer would say that this, too, should be ignored in considering the rationality of the decision to refuse leave to enter.
8. Again, I agree with Mr Palmer on this matter. It is, of course, always open to an applicant for leave to enter to provide the Immigration Officer with any information which he or she considers will assist their case. If information or documents have already been sent to the Home Office that can be drawn to the Immigration Officers' attention. In other situations there may be a question as to whether the Immigration Officer has made sufficiently diligent inquiries in order to obtain information held elsewhere in his or her organisation, but in this case I do not think that any such criticism could be made.
9. This conclusion means that it is necessary to examine the information which was available to the Immigration Officer at various stages.
10. On or about 2^nd November 2006, the Irish immigration authorities had contacted the Immigration Service in Belfast and Liverpool to ask about the UK's response to the Claimant's request that he be deported to Northern Ireland instead of the USA. He was said to have been convicted of child rape^[1], to be an American citizen with ILR and to be living in Northern Ireland with his wife. By 12^th November 2006 some further information was obtained. The Claimant had been convicted of sexual assault on a minor. The offence had taken place in Ireland on 11^th August 2002. He was arrested in Ireland on 5^th October 2002 and later extradited from Northern Ireland to face trial. He had been sentenced on 4^th April 2006 to 9 months imprisonment and his custodial term came to an end on 26^th October 2006. This had been his first offence in the Republic of Ireland. His wife had written to the Garda to say that they no longer lived together and the social services had obtained an order to stop him returning to the family home. The Immigration Service contemplated asking the Secretary of State to make an order excluding the Claimant from entering the UK in advance of him coming here. In the event that idea was not pursued.
11. When the Claimant was first questioned at Glasgow Airport on 19^th November 2006 he produced three passports: one had expired in 1984; one had expired in 1994; the third had been issued on 6^th December 1995 and had expired on 5^th December 2005. The latter had had no endorsements. The Immigration Officer noted that there was no evidence that he had resided in the UK within the previous 2 years. This was relevant because someone who has had indefinite leave to remain may be given leave to enter as a returning resident if they have not been away from the UK for more than 2 years – see Immigration Rules r.18.
12. The Claimant explained that he suffered from Guillian-Barre Syndrome which meant that he sometimes had to use a wheelchair. He said that he had lived in Northern Ireland since his childhood. He said that his passport had been stolen. On further questioning he said that he had no criminal convictions either in the UK or in Ireland. The Immigration Officer said he wanted to search the Claimant's luggage. The Claimant became extremely agitated. He tried to reverse his wheelchair into the airside area and then began to suffer a seizure or similar attack. Medical assistance was summoned and the Claimant was taken to hospital.
13. In the meantime his luggage was searched. A further US passport was found. This had been issued on 6^th November 2006. It contained an Irish refusal stamp dated 12^th November 2006 and a USA entry stamp the same day. The passport was valid until 5^th December 2006. Later that morning, the Immigration Officer went to the hospital and served a form authorising the Claimant's detention on the grounds that his release was not considered to be conducive to the public good and it had been taken into account that he had failed to give satisfactory or reliable answers to the Immigration Officer's inquiries. That night the Claimant tried to commit suicide, but was unsuccessful. Watch was kept on him and he was discharged from hospital on the following day. He was moved to an immigration reception centre.
14. On 21^st November 2006 he was interviewed again by an Immigration Officer. On this occasion, he explained that he had come to Northern Ireland as a 7 year old child in 1967. He gave the addresses where he had lived. He said he had married in 1982 to a British Citizen. He said he had 4 children (but was not asked and did not give their ages). He said that he moved out of the matrimonial home in 1985. The Claimant says that was a mistake and that he in fact moved out only in 2005. Mr Palmer notes that each page of the interview notes was signed by the Claimant and the Immigration Officer was therefore entitled (at least for the time being) to rely on that information. In any event, the Claimant said that he and his wife still had a relationship. He was asked to explain how he came to be extradited from Northern Ireland to the Republic of Ireland. He said simply that the events had happened in August 2002 in the course of a day trip to the Republic.
15. On 21^st November 2006 an Immigration Officer refused the Claimant leave to enter the UK. No copy of that decision has survived, but a report by the Immigration Officer dated 30^th November 2006 records that this was because the Claimant's exclusion was considered to be conducive to the public good. This was a reference to the power of refusal in Immigration Rules r.320(19).
16. The Immigration Officer considered the impact of Article 8. He said:

"In respect of the Human Rights Act 1998, consideration was made under Article 8 -- Right to Respect for Private and Family Life. It is submitted that there would be no interference in this regard. The passenger has lived alone for over 21 years. Whilst cohabitation is not a pre-requisite to the subsistence the relationship, the reason for separation was cited as an issue over care for the passenger, and their children. Given the number of years that have passed, this should no longer be an issue, yet the passenger has continued to reside alone, actively choosing to live separately from those closest family members. Furthermore, the passenger does not necessarily have the right to enjoy family life within the UK when he and his family members can have a family life in the USA. It would be open to the passenger to have his family visit or join him in the USA, where he would be able to maintain current levels of contact by telephone or other medium, seek the same employment and attain the same standard of living to that of the UK. If it is considered that removal of the passenger were to cause interference with family life, it is further submitted that such action is permitted provided it is in accordance with the law, a legitimate aim is pursued and the action is proportionate. In this case, the decision is lawful in accordance with the Immigration Rules, with a legitimate aim of maintaining an effective immigration control. The passenger's refusal and removal from the UK is proportionate and necessary on the grounds of public safety, the prevention of disorder or crime and for the protection of rights and freedoms of others, and would offset such interference."

17. Authority for the Claimant's detention was continued. It was made clear that the Claimant would have a right of appeal against this decision.
18. At or shortly after this time, the Claimant's wife contacted the Immigration Officer to say that she and her husband had a subsisting relationship and she wanted him to return to Northern Ireland. A review of the decision to detain was recommended. Nonetheless on 23^rd November 2006 it was decided to continue to detain the Claimant. An Immigration Officer said that this was because of 'the circumstances of this case, together with the serious nature of the offences, the existence of an extant Deportation Order in the Republic of Ireland and the potential for community impact and adverse publicity.'
19. The Immigration Officers made efforts to contact the Claimant's solicitors. They wrote on 24^th November 2006. They emphasised the Claimant's long connection with the UK and the absence of any continuing link with the USA. They noted that

"In consequence of this chronic medical condition and as a result of the allegations and subsequent conviction for the sexual offence Mr Kullas has been living apart from his family, although there has been supervised contact in respect of the youngest child through the Social Work Department in Northern Ireland. Mrs Kullas has also had contact with her husband before and after such supervised contact meetings and there has been intermittent contact with the other three children."

They said that the Claimant's own parents and siblings lived in the UK. They invoked the Claimant's rights to both Family and Private Life under Article 8. All that the letter said of the Irish conviction was that it was for an offence "of a sexual nature".

20. On 27^th November 2006, the Claimant's solicitors wrote again to say that the offence had been "the forcible kissing on the lips of a young girl." The Immigration Officer seemed to be aware of this but asked for further enquiries to be made as to the nature of the offence. Decisions were made to continue the Claimant's detention on or about 29^th November 2006 because of the Claimant's conviction, his dishonesty when interviewed, a fear that he would abscond and that he may be a risk to the public.
21. On 29^th November 2006 the Immigration Officer was also told by the Irish Garda that the victim of the Claimant's assault had been a 12 year old girl.
22. On 1^st December 2006 the Police Service of Northern Ireland provided information to the Immigration Officer about the Claimant's previous UK convictions. Two were very old and minor. On 30^th April 2002 the Claimant had been convicted of common assault on an adult and bound over in the sum of £500 for two years. It was also noted that he had (allegedly) breached a non-molestation order when he entered his wife's house on 14^th July 2005 although this had not yet been dealt with.
23. On 2^nd December 2006 it was appreciated that the Claimant's indefinite leave to remain had to be cancelled. This was done on 'conducive' grounds – see Immigration Rules r.321A(5). As he was entitled to do, the Claimant appealed against this decision on 6^th December 2006. His detention was continued on the same day. The Claimant applied for bail and a hearing was set for 14^th December 2006. The Claimant withdrew the application because his wife could not attend the hearing. His continuing detention was again authorised on 17^th December 2006 and again on or about 17^th January 2007.
24. The substantive hearing of the Claimant's appeal had been listed for 4^th January 2007 but the Tribunal put this off and re-fixed it for 1^st February 2007.
25. In the meantime the Immigration Officer made repeated efforts to find out further details of the Claimant's offence from the Irish authorities. This was eventually received on 19^th January 2007. The Garda said that the girl was befriended by the Claimant. There was evidence that he had groomed her over the course of the weekend before the assault took place. He had forcibly kissed her. He had moved her hand over his trousers above his penis and asked her if she wanted to play with it. He said he loved her, she was mature for her age and told her not to play with anyone else and that she was his. The conviction had been in a district court. His appeal against conviction had been dismissed, but time served on remand had been counted towards his sentence of 9 months.
26. Authority for detention to continue was given again on 22^nd and 29^th January 2007. By the latter date the hearing of the appeal had been adjourned at the request of the Claimant's new (and present) solicitors. On 7^th February 2007 those solicitors asserted that the Claimant was entitled to exercise rights as the wife of an EEA national. This was on the basis that his wife was not only a British Citizen but was also an Irish citizen by operation of Irish law. This letter also drew attention to what it said was an error in the record of the 21^st November 2006. The Claimant had moved out of the matrimonial home in 2005, not 1985.
27. The Immigration Officer responded to the EEA claim. He said that the Claimant's wife did not presently hold Irish citizenship. If she acquired this, the matter would be reconsidered. On 16^th February 2007, the Claimant's solicitors asked for the appeal hearing (then scheduled for 26^th February 2007 to be adjourned). They subsequently submitted on 1^st March 2007 that an adjournment should be allowed because "there would be little point in the hearing proceeding before the issue of our client's wife's Irish nationality was resolved." The AIT acceded to this request.
28. Meanwhile, the Claimant had again applied for bail. The hearing had been due to take place on 19^th February but was withdrawn in the absence of sureties. It was relisted on 23^rd February 2007. For this hearing the Claimant provided a report from a Chartered Psychologist dated 16^th February 2007. The author's view was that the Claimant was at low or very low risk of committing a sexual offence. However, the Immigration Judge was unpersuaded by the report which she considered to be self-contradictory. The Immigration Judge was also influenced by the seriousness of the Irish offence, and the fact that the Claimant had not told the truth at the airport led to grave concerns as to whether he would comply with bail conditions.
29. The application regarding EEA rights was renewed on 24^th February 2007. The present claim for judicial review was issued on 27^th February 2007.
30. On 6^th March detention was again reviewed and its continuation approved. The Assistant Director noted the following:

"Mr Kullas has launched a JR application regarding the decision to refuse him leave to enter. He claims to be the spouse of EEA national as his wife, though British, has a claim to Irish nationality as she was born on the island of Ireland. We have received incomplete advice from T Sols and LAB . They opine that should Mrs Kullas establish her Irish citizenship Mr Kullas should be considered the spouse of an EEA national and that if he satisfies the IO that the marriage is subsisting then he would qualify for entry. They consider that to refuse entry on the grounds of public policy would not be proportionate (citing precedent B v SSHD 18th May 2000, in which an Italian national was sentenced to 5 years imprisonment and sexual crimes against his son, but it was considered disproportionate to deport him). We have asked for this JR application to be considered expeditiously.

We wait advice from LAB and T Sols on a) what evidence of Mrs Kullas is Irish nationality is acceptable (we have undertaken to consider any applications made under the EEA regulations and told the solicitors on the 15th of February that we had referred the matter for legal advice);"

31. As I have already noted, on 7^th March 2007 McCombe J. granted bail. He did so on conditions. They were unusually strict and included the following. The Claimant had to report to the police three times a week. He had to observe a curfew. He had to permit the police entry to his home to check on his presence. He was not to have unsupervised contact with any minor under the age of 16 except for immediate family relations.
32. The Tribunal did subsequently allow the Claimant's appeal on both EEA and Article 8 grounds.
33. The advice received by the Assistant Director on 6^th March had referred to the case of B v Secretary of State for the Home Department [2000] Imm AR 478 CA. A central part of Mr Cox's case is that the present case was so close to the facts of that case that there was no prospect of a refusal of leave to enter being maintained on appeal to the AIT. He would no doubt say that if the test is a simple rationality one then the refusal of leave to enter was irrational.
34. B was an Italian national. He had come to the UK with his parents in 1955 at the age of 7 and had lived here ever since. He married and had two children. In 1994 he was convicted of a series of acts of gross indecency against his child and sentenced to 5 years imprisonment. His wife divorced him and neither she nor the children had anything to do with him. His parents continued to live in the UK. The Secretary of State decided to deport him to Italy. He appealed against that decision. At the time, this first instance appeal lay direct to the Immigration Appeal Tribunal. The IAT dismissed the appeal. He appealed to the Court of Appeal. Then (as now) the Court could only reverse the decision if the Tribunal had erred in law.
35. The Court of Appeal gave judgment on 18^th May 2000. This was 4 ½ months before the commencement date of the Human Rights Act. B could not therefore rely directly and simply on Article 8 of the ECHR. However, as an Italian national he enjoyed rights of free movement. These could be subject to limitations on grounds of public policy but only where the personal conduct of the individual justified such action and previous criminal convictions could not in themselves be a reason for exclusion (see then Directive 64/221 Article 3. The current equivalent is the Council Directive 2004/38/EC Article 27). These conditions themselves imposed restraints on the deportation of EU citizens. However, the Court of Appeal held that Article 8 also had a bearing. That was because it is a principle of EU law that fundamental human rights should be observed in relation to decisions affecting EU matters. Thus, even in advance of the commencement of the Human Rights Act, B could rely on Article 8. Nonetheless, the Court endorsed the common view of the parties that the two sets of restrictions flowed through a common channel. Both EU law and Article 8 meant that deportation was only permissible if it was a proportionate response to the Appellant's offending (see para 17 of Sedley LJ's judgment). On the facts of the case it concluded that removal was not proportionate.
36. The Court of Appeal had to consider the standard of review by the IAT and the Court of Appeal.

(a) It held that the IAT had to consider for itself whether removal was proportionate. In Blessing Edore v Secretary of State for the Home Department [2003] 1 WLR 2979 the Court of Appeal said that was too demanding a standard of review and the appellate authority should merely decide whether the Secretary of State's decision was within a reasonable range of responses. However in Huang v Secretary of State for the Home Department [2007] 2 AC 167 the House of Lords held that an adjudicator (and now Immigration Judge) does indeed have to consider for himself or herself whether removal would be proportionate.

(b) So far as the Court of Appeal's role was concerned, the Court in B argued that whether removal was proportionate was a matter of law. Accordingly, the Court again had to consider for itself whether removal in the instant case was proportionate and therefore lawful. It was not confined to a Wednesbury review of the Tribunal's decision. So far as this aspect is concerned, the case law has also moved on – see most recently, albeit in the context of Article 3, RB (Algeria) v Secretary of State for the Home Department [2009] 2 WLR 512 and a less interventionist role is given to the Court of Appeal. I do not think that this evolution of the jurisprudence matters. Mr Cox is still able to say that the decision in B illustrates the views of the Court as to what was not a proportionate removal.

37. Mr Cox submits that B goes further. He says that it is not just an illustration of the application of the principle of proportionality but stands for the proposition of law that if a person has lived in the UK since being a young child and is now a man of some age, committing even a very serious offence of child abuse over a long period is not sufficient to justify deportation. But, in my judgment, Mr Palmer is right to say that this is not a proposition of law. It is picking out certain features of the case. There are principles of law that can be taken from B: the length of residence in the UK, the age at which the person concerned came to the UK, the degree of connection with the UK and the lack of (or minimal) connection with the country of origin are all relevant circumstances. Obviously, the greater those individual factors are the more weight they ought to receive. But none of these principles are controversial.
38. Mr Cox refers to the decision of the Grand Chamber in Uner v Netherlands (2007) 45 EHRR 14. In that case a Turkish national had lived in the Netherlands since the age of 12. He was convicted of manslaughter. At the age of 27 he was deported. He argued that this infringed his right under Article 8. The Grand Chamber held by 14 votes to 3 that there had been no violation of Article 8. The Grand Chamber said this:

"54. In the case of [Boultif v Switzerland (2001) 33 EHRR 50] the court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria, as reproduced in [40] of the Chamber judgement in the present case, are the following:

-- the nature and seriousness of the offence committed by the applicant;

-- the length of the applicant's stay in the country from which he or she is to be expelled;

-- the time elapsed since the offence was committed and the applicant's conduct during that period;

- the nationalities of the various persons concerned;

-- the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of the couple's family life;

-- whether the spouse knew about the offence at the time when he or she entered into a family relationship;

-- whether there are children of the marriage, and if so, their age; and

-- the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.

55. The court would wish to make explicit two criteria which may already be implicit in those identified in the Boutif judgement:

-- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and

-- the solidity of social, cultural and family ties with the host country and with the country of destination.

...

As to the second point, it is to be noted that, although the applicant in the case of Boultif was already an adult when he entered Switzerland, the Court has held the "Boultif criteria" to apply all the more so (a plus forte raison) to cases concerning applicants who were born in the host country or who moved there at an early age ... Indeed, the rationale behind making the duration of a person's stay in the host country one of the elements to be taken into account lies in the assumption that the longer a person has been residing in a particular country the stronger his or her ties with that country and the weaker the ties with the country of his or her nationality will be. Seen against that background, it is self-evident that the court will have regard to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and receive their education there." [emphasis added]

39. Mr Cox argues that the final sentence of paragraph 55 which I have emphasised shows that there is a step change in such situations. He accepts that such persons are not immune from deportation. That concession is inevitable in view of what the Grand Chamber had said earlier in its judgment. It noted that certain Member States had given long-term immigrants born in their states an absolute right not to be expelled, but it added at para [53],

"The Court considers nevertheless that, even if a non-national holds a very strong residence status and has attained a high degree of integration, his or her position cannot be equated with that of a national when it comes to the above-mentioned power of the contracting states to expel aliens…for one or more of the reasons set out in para 2 of Article 8 of the Convention."

40. I do not agree that the final sentence of paragraph 55 does show a "step change" that embodies some new principle of law. It was an elaboration of the second additional criteria which the Court had identified earlier in that paragraph. There will be a continuous spectrum of cases where the "solidity of social, cultural and family ties with the host country" become stronger, depending (among other things) on the length of residence. The similar ties with the country of destination will, correspondingly, become progressively weaker. There is no artificial stage along that continuum where the exercise of judging proportionality becomes qualitatively different. I do not therefore accept that B stands for the proposition for which Mr Cox contends.

.

41. Of course, there is another general principle of good administrative practice: it is desirable to achieve consistency between cases and treat like cases alike. But, again as an abstract principle, that is uncontroversial. Yet it is subject to at least three important caveats: the first is so obvious that it is almost banal. Facts of individual cases vary greatly. There is no unfairness in treating different cases differently. Second, the decision-maker's attention needs to be drawn to the comparator. It is expecting too much of an administrator (certainly one operating in as large an organisation as the Home Office) to have in mind without prompting all the previous decisions that have been taken in that organisation. The decision maker's attention may be drawn to the comparator by the applicant or, sometimes, internally. Third, it may be open to the decision maker to justify different treatment of even superficially similar cases.
42. In this case, the reference to B v SSHD appeared in a minute of 6^th March 2007. That was just one day before the Claimant was released on bail. If the case had expounded a new and relevant principle of law, the lateness of the stage at which it was drawn to the Immigration Officer's attention would have been immaterial. The Secretary of State cannot invoke his officials' ignorance of the law. But I have held that B did not incorporate a new principle of law. As a comparator, there is nothing to show that it was brought to the Immigration Officer's attention any earlier. For these reasons, I do not think that it has the significance which Mr Cox attaches to it.
43. But in any case, Mr Palmer submits, there were material differences between the two cases. In the first place, B was exercising free movement rights accorded by EU law. That gave an added weight to his claim to remain in the UK over and above the provisions of Article 8(1). Second, Mr Palmer submits, that while B's offending had been more serious than the Claimant's, it had been exclusively against his own children. Any risk of re-offending was confined to those children and that risk could be managed and contained by restricting his contact with them and the vigilance of the local social services. Accordingly, in the view of Sedley LJ at para 20 "there is no perceptible risk of repetition of what was intra-familial abuse." The absence of any practical risk of re-offending was a matter which influenced the Court. Mr Palmer submits that the present case was different. Initially, very little was known about the offence which the Claimant had committed in Ireland. When information was obtained in the middle of January 2007, it was not encouraging. The victim was not, apparently, a member of the Claimant's family but a girl whom he had befriended and there was some evidence of grooming. Mr Cox argues that the Secretary of State knew that this offence had been committed in 2002 and there had been no allegation of any sexual offending thereafter. Mr Palmer responds that the Claimant had been arrested in 2002, would presumably have known that charges were or might be pending and these may have acted as a restraining influence. On the information provided by the Claimant at the interview on 21^st November 2006, he had separated from his wife for some 21 years. There was also information that the Claimant had (about 18 months previously) broken a non-molestation order. Both the order and the alleged breach could give the Immigration Officer cause for concern. The Chartered Psychologist's report saying that the Claimant presented a low or very low risk of reoffending was not produced until just before the bail hearing on 23^rd February 2007 and then, as I have said, the Immigration Judge did not find it persuasive.
44. I agree that there were these differences so that, even if the Immigration Officer had been aware of the B case at an earlier stage, it would not necessarily have followed that the only rational decision which he could have made was to allow the Claimant to enter.
45. Mr Palmer draws attention to a further feature of the B case which he says assists the Secretary of State. As I have noted, the Court of Appeal considered that it would itself have to decide whether removal was proportionate. Sedley LJ expressly considered what the position would have been had he been applying a Wednesbury review. He said at para [36] "I have no doubt that the Home Secretary's view that deportation was nevertheless merited was legitimately open to him: even the additional factor of near-lifelong residence here would not necessarily have led this court to intervene on traditional public law grounds." Mr Cox argues that Sedley LJ was here considering the decision absent an assessment of proportionality. I do not agree. In the immediately preceding paragraph, His Lordship had been considering the proportionality of the decision to deport and the factors which told against it being disproportionate. He noted that the Home Secretary's view was that deportation was "nevertheless" merited. This appears to be a reference back to the assessment of whether deportation was proportionate. In other words it incorporates rather than excludes the consideration of proportionality. In any case, it is difficult to see how Sedley LJ could have considered that the Home Secretary's view was "legitimately open to him" if the assumption had been that proportionately had not been taken into account. Accordingly, I agree with Mr Palmer. If, contrary to what I have said above, the present case is indistinguishable from B , the view of the Court of Appeal was that on such facts a rational Secretary of State could conclude that deportation was appropriate. If B has any precedential value, therefore, it is against rather than in favour of the Claimant.
46. The advice from the Home Office's lawyers which was recorded in the memo of 6^th March 2007 does not take the Claimant very far. The advice is expressly said to be incomplete. It was contingent on the Claimant's wife establishing her Irish citizenship (and thus the Claimant having a presumptive right of residence under EU law as well as Article 8(1)). It was the adviser's view as to what would then be the right course. It did not purport to be a conclusion that any other view was irrational.
47. Drawing all of this together, I reject the submission by Mr Cox that the only rational decision that the Immigration Officer could have taken was to allow the Claimant leave to enter. I would reach that conclusion whether or not the Immigration Officer's decision should be subjected to "anxious scrutiny." I do, though, have doubts as to whether "anxious scrutiny" is the right test. Of course it was a decision which could and did lead to the Claimant's detention. Any decision involving the legality of deprivation of liberty will be looked at closely by the Court. However, the merits of the decision to refuse leave to enter would, in due course, be fully considered by an Immigration Judge on appeal. This was not, therefore, a final decision. Moreover, as Mr Cox accepted, the Claimant had a statutory right to apply for bail. On such an application it would have been open to him to argue that the merits of the appeal against refusal of leave to enter were so strong that he had no incentive to abscond and he should for that reason be granted bail. I appreciate that bail hearings are not the place for an extended examination of the merits of the underlying immigration decision, but it has been the Claimant's case that his Article 8 right to remain in the UK was so clear and overwhelming that it would be perverse for him to be refused leave to enter. That argument could be presented to the Immigration Judge hearing a bail application. As I have described, a number of bail applications were listed but, for a variety of reasons they were adjourned until 23^rd February. Similarly, the hearing of the substantive appeal was first listed extremely promptly for 4^th January 2007. This, too, was put off from time to time for a number of reasons. It is open to Mr Palmer to comment that there is some inconsistency between the Claimant's present position that Article 8 gave him certain prospects of succeeding and his advisers' wish to postpone both bail hearings and the substantive appeal until their client's case could be fortified.
48. The Claimant did have a claim to be entitled to be allowed to remain in the UK because of Article 8. That claim ultimately succeeded before the AIT. However, in my judgment the various decisions by Immigration Officers that Article 8(2) allowed his exclusion were not perverse or irrational. It follows that the decisions to detain the Claimant cannot be impugned as unlawful.
49. Mr Cox had a further argument that there had been no proper assessment of the Claimant's Article 8 case by the Secretary of State or the Immigration Officers. This argument would have been superfluous if Mr Cox had succeeded on the rationality challenge. Having failed in that argument, I do not think that this secondary argument takes him anywhere. Besides, it was not until late January 2007 that the Secretary of State received full information from the Garda about the Claimant's offence and, as I have said, there were some disturbing features about the details which were then disclosed.
50. It follows that this application for judicial review is dismissed.

Note 1   This was a misunderstanding which arose from the title of the Irish statute under which the Claimant had been convicted. The offence as had become apparent by 12th November 2006 was sexual assault on a minor. Further information was obtained about this later (see below).    [Back]