High Court of Justice in Northern Ireland Queen's Bench Division Decisions

1. In this case the applicant, Tina Lee Thomas, seeks judicial review of a decision, made on 4 December 1997, by the Secretary of State for the Home Department (“Secretary of State”) to deport the applicant from the United Kingdom.

2. The applicant is a national of the United States of America, having been born in Texas on 11 September 1965, and, in the course of an affidavit sworn on 12 February 1998, she furnished details of her childhood and adolescence. She stated that her parents divorced when she was very young and that she spent approximately two and a half years at an orphanage before going to live with her grandmother when she was four years of age. When the applicant reached the age of nine her grandmother died and the applicant spent the next eight years being, to use her own words, “farmed out” to various family friends and relatives. She has described her adolescent life as being “extremely chaotic and unhappy” and, from time to time, she received counselling and therapy for depression. The applicant has stated that, upon one occasion, she attempted suicide. The applicant attended the University of Texas and, ultimately, successfully completed a degree in Art History. Thereafter she worked “from time to time” supporting herself with the assistance of a small inheritance.

3. Miss Burden, a Social Worker employed by the North and West Belfast Health and Social Services Trust (“the Trust”) recorded in her report dated 27 October 1997 that:

4. The applicant became pregnant at the age of fifteen and subsequently underwent an abortion and, after becoming pregnant for a second time, at the age of seventeen, she arranged for the child to be adopted. At all times she has been acutely aware of her lack of a stable family background and she has expressed herself as being deeply frustrated by American “values”.

5. At paragraphs of her affidavit she stated that she decided to move to Ireland because she believed that she could find a “better, more nurturing, way of life” although she told Miss Burden that she had decided to come to Ireland “for a holiday”. Miss Burden recorded that the plaintiff told her that:

6. The applicant left America and arrived at Shannon Airport on 12 August 1996. At the airport her passport was stamped with a three-month entry permit although it seems that she subsequently lost her passport. On 15 August 1996 the applicant travelled from the Republic of Ireland into Northern Ireland thereby acquiring leave to enter the United Kingdom for three months in accordance with the Immigration (Control of Entry through Republic of Ireland) Order 1972. Her three months leave expired on 15 November 1996 and thereafter she has remained unlawfully within the United Kingdom.

7. It appears that the applicant became pregnant within a fairly short time of her arrival in Northern Ireland since, on 6 July 1997, she gave birth to a female child named Aoife Frances Thomas at the Royal Maternity Hospital in Belfast. The applicant had booked in for ante-natal care at the Royal Maternity Hospital in January 1997 and it appears that she was hospitalised on three occasions during her pregnancy.

8. During the course of compiling the report for the Trust the applicant told Miss Burden that in March 1997 she had contacted the Catholic Welfare Care Association Adoption Agency stating that, in the event of being deported, it would be preferable for her to arrange to have her baby adopted in Ireland and that she would then commit suicide.

9. During the course of the hospital admissions she was assessed by a Psychiatrist as being in need of emotional support and, on 25 April 1997, she presented to Night Staff at the Royal as very distressed and expressing suicidal thoughts. She was then assessed by a Clinical Psychologist who recommended referral to the Community Psychiatric Service. After the birth of Aoife, staff on the ward requested a further psychiatric assessment after becoming increasingly concerned at the applicant’s level of distress.

10. The applicant has stated in her affidavit that she has been in contact with the father of her child who is “an Irish/British citizen”, but it seems that he has at all times refused to acknowledge paternity.

11. The applicant first came to the attention of Social Services in January 1997 when she applied for financial assistance and, at a case conference prior to the birth of the child, the Trust decided that, in view of the applicant’s history of mental health problems, suicidal thoughts and history of disruption, the baby’s name should be placed on the Child Protection Register and the applicant should be asked to consider a placement in a hostel for assessment of her parenting skills. The applicant consented and, in due course, arrangements were made for her admission to Thorndale. The outcome of this assessment was very positive and Miss Burden noted that a strong bond existed between mother and daughter with the mother displaying good management skills and insight into the needs of the child. The child’s name was subsequently removed from the Child Protection Register.

12. In May 1997 the applicant wrote to the Immigration Office informing them of her continued presence in Northern Ireland and she subsequently consulted the Law Centre to pursue an application for leave to remain in the United Kingdom. On 24 July 1997 the Irish authorities confirmed that the applicant’s Declaration of Irish Citizenship on behalf of her daughter had been noted in the records of the department. On 4 December 1997 the applicant was interviewed by Bernard Langan at the Immigration Office in Belfast and a decision was made that she should be deported from the United Kingdom in accordance with Section 3(5) of the Immigration Act 1971. The circumstances under which that decision came to be taken have been set out in detail by John Hill Waddell of the Home Office Immigration and Nationality Directorate in his affidavit of 7 April 1998.

13. On 8 December 1997 the applicant lodged an appeal under Section 15(1) of the 1971 Act. As a matter of course, this appeal prompted a reconsideration of the decision of 4 December 1997, but the conclusion reached was that the determination had been properly made. The Order 53 statement in support of the application for judicial review was lodged on 13 February 1998 and, in the light of that application, the impugned determination was reviewed for a second time on behalf of the Secretary of State. The matter was reconsidered generally by Mr Stephen Still of the Home Department Immigration and Nationality Directorate and this included an assessment of the applicant’s grounds for judicial review together with the affidavits and exhibits thereto. The circumstances of this further review of the applicant’s case have been set out in detail by Mr Still in his affidavit of 14 April 1998.

14. On 17 July 1998 Dr Philip McGarry, Consultant Psychiatrist, lodged an affidavit on behalf of the applicant to which he exhibited a report on the applicant dated 9 July 1998. On 6 August 1998 Miss Burden, Social Worker, lodged a brief affidavit to which she exhibited an up-to-date report from the Trust relating to the applicant. On 27 August 1998 Miss Ann Grimes from the Law Centre lodged an affidavit exhibiting a report from “Legal Aid of Central Texas” relating to financial and psychological support that would be available for the applicant and her child in Austin, Texas.

15. These materials were all considered by Mr Still who lodged a further affidavit on 30 September 1998 indicating that these up-to-date developments had been taken into account and that, having done so, the original decision had been confirmed.

16. Part 1 of the Immigration Act 1971 (“the 1971 Act”) created the concept of “the right of abode in the United Kingdom” and, as a general rule, those possessing this right are:

17. The applicant has not possessed the statutory right of abode in the United Kingdom at any material time. Section 3(1) of the 1971 Act created the concept of “leave to enter” the United Kingdom. By virtue of Article 4(1) of the Immigration (Control of Entry through Republic of Ireland) Order 1972 (“the 1972 Order”) the applicant acquired leave to enter the United Kingdom by operation of law. The effect of Article 4(4)( a) of the 1972 Order is that such leave was limited to a period of three months. Thus, from 16 November 1996 the applicant’s status has been that of an illegal entrant. Section 3(5) of the 1971 Act, inter alia, provides that:

18. The Immigration Rules made by the Secretary of State in accordance with the provisions of Section 3(2) of the 1971 Act set out:

19. Part 13 of the Immigration Rules deals with Deportation. Paragraph 364 provides as follows:

20. The respondent’s consideration and application of Rule 364 has been set out at paragraphs 5-8 of Mr Waddell’s affidavit, paragraphs 5-7 of Mr Still’s first affidavit and paragraphs 2-7 of Mr Still’s second affidavit.

21. The applicant was represented by Mr John Larkin while Mr Bernard McCloskey appeared on behalf of the respondent. I am indebted to both counsel for the extent of their research and the degree of care and clarity with which they formulated their respective submissions.

22. Mr Larkin developed five main arguments in support of the application.

23. While he accepted that, apart from a small number of exceptions, the provisions of the Human Rights Act 1998 are not due to come into force until October 2000, Mr Larkin relied upon the provisions of Section 22(4) of that Act in support of a submission that it would be “irrational” in the Wednesbury sense to merely “have regard” rather than to apply Article 8 of the European Convention on Human Rights (“the ECHR”).

24. While accepting that in R v DPP ex parte Kebilene and others [1999] 3 WLR 972, the House of Lords rejected an argument in favour of a legitimate expectation as inconsistent with a clear statutory intent to postpone the coming into effect of the central provisions of the Human Rights Act – see the remarks of Lord Steyn at page 982  - Mr Larkin nevertheless sought to argue that it would be irrational not to apply Article 8 in these proceedings having regard to their likely duration, including the possibility of appeals and/or a reference to the Court of First Instance of the European Court of Justice.

25. I do not accept this argument. It does not seem to me that the decision in R v Kebilene has significantly altered the status of the Convention in domestic law which, in my view, at present, remains as set out by Sir Thomas Bingham MR, as he then was, in ex parte Smyth [1996] QB 517 at page 558E when he said:

26. It seems to me that to hold that it was irrational only to “have regard” to Article 8 would be tantamount to holding that rationality required the decision-maker to treat Article 8 as being currently in force which would result in the incorporation of the Convention into domestic law by the “back door” – see Lord Ackner in Brind v Secretary of State for the Home Department [1991] 1 AC 696 at 761H-762A. Furthermore, such an approach would be contrary to the intention of Parliament which is clearly not to bring into force the substantive provisions of the Human Rights Act 1998 giving effect to Convention rights in domestic law until 2 October 2000.

27. At paragraph 7 of his affidavit of 14 April 1998, Mr Still confirmed that he did have regard to Article 8 and to the jurisprudence of the European Court of Human Rights in the context of immigration cases and I would not be prepared to condemn his approach as Wednesbury irrational.

28. However, even if Mr Larkin was correct in his submission that the decision-maker ought to have applied Article 8 of the Convention rather than merely “having regard” to it, I remain far from satisfied that any breach of Article 8 has in fact been established in the course of this application. The approach of Mr Waddell, HM Inspector of Immigration for Scotland and Northern Ireland, is set out at paragraphs 4-8 of his affidavit of 7 April 1998 and, as I have already noted above, at paragraph 7 of his affidavit of 14 April 1998, Mr Still averred that he did have regard to Article 8 of the Convention and to the jurisprudence of the European Court of Human Rights in the context of immigration cases. In particular he referred to the decision in Sorabjee v United Kingdom [23 October 1995 – Application No 23938/94].

29. In relation to the applicant’s circumstance the Commission noted, at page 8:

30. The Commission specifically expressed the view that the possible shortcomings in healthcare in Kenya were not of such a nature or a degree to impinge on respect for family or private life and went on to hold that there were “... no elements concerning respect for family or private life which in this case outweighed the valid considerations relating to the proper enforcement of immigration controls.” In the circumstances, the Commission rejected the application as “manifestly ill-founded” within the meaning of Article 27 paragraph 2 of the Convention.

31. I also note the views of the learned authors of Harris and others “Law of the European Convention on Human Rights” expressed at page 332:

32. The one factor which might be argued to be of particular significance in this case in relation to a potential breach of Article 8 is the potential for the applicant to commit suicide and I propose to consider this aspect of the case in further detail later in the judgment.

33. Mr Larkin submitted that Article 8( a) created an autonomous substantive right to move and reside freely in community territory and that the impugned decision to remove the applicant would have the inevitable consequence of precluding her child, Aoife, from freely exercising her rights in accordance with Article 8( a). In support of this submission Mr Larkin relied upon the opinions of the Advocates General in Maria Martines Sala v Freistaat Bayern (ECJ 12 May 1998 Case No C-85/96) and Wijsenbeek v Netherlands (ECJ 12 October 1999 Case No C-378/97).

34. By way of response Mr McCloskey submitted that Article 8( a) did not have direct effect and was, at most, merely declaratory of existing European rights and that, in any event, on the facts of this case, there had not been any infringement of Article 8( a).

35. The significance of Articles 8 and 8( a) of the Treaty, as amended, was considered by the Court of Appeal in Phull v Secretary of State for the Home Department [1996] IMM AR 72. In that case the respondent sought to deport an Indian national who had married a British citizen. It was argued on behalf of the applicant that the right of residence in the Member State, enjoyed by the applicant’s British husband, carried with it a right to family reunion in that State. In giving the judgment of the Court of Appeal, Leggatt LJ expressed the view that the language of the Article did not support the argument that Article 8( a) had introduced a departure from the principle that the right to move freely and to reside with Member State was inapplicable in wholly internal situations and he noted that academic writers were virtually unanimous in the view that the new right created by Article 8( a) did not significantly extend the rights of free movement and residence enjoyed by nationals of Member States under the EC Treaty and Council Directives. He further pointed out, at page 77 of the judgment, that in all the cases cited before the Court of Appeal the right of a citizen to have his or her family residing with him or her was given not by an Article of the Treaty expressed in general terms, but by specific subordinate legislation such as Community Regulations or national legislation following a Directive. He went on to conclude that:

36. At page 78, in relation to a suggestion that the case should be referred to the European Court of Justice in accordance with Article 177 of the Treaty Leggatt LJ said:

37. A similar view of Article 8( a) was taken by a differently constituted Court of Appeal in Vitale v Secretary of State for the Home Department [1996] IMM AR 275 and that court also rejected a request for a reference under Article 177 noting that the House of Lords had refused leave to appeal in Phull’s case without making any reference under Article 177. Mr McCloskey also referred me to page 659 of Wyatt and Dashwood “European Community Law” (3 ^rd Edition 1993) where, in relation to Article 8( a), the learned authors observed:

38. At paragraph 18 of his opinion in Maria Martines Sala v Freistaat Bayern Advocate General La Pergola said:

39. Again, when dealing with the prohibition of discrimination on grounds of nationality he went on to say, at paragraph 20:

40. However, in the course of giving judgment, the court itself did not deal with the submissions of the Advocate General relating to Article 8( a) observing, at paragraph 60 of the judgment:

41. The European Court of Justice has demonstrated little enthusiasm for providing a definitive analysis of the “citizenship” provisions contained in Article 8( a) to ( e). In Skanavi [1996] ECR 1-929 the court expressed the view that Article 8( a) was a general expression of the rights provided under Article 52 (now Article 43 governing the freedom of establishment), and therefore secondary in importance to specific free movement provisions and the court noted that, as a consequence, “it is not necessary to rule on the interpretation of Article ( a)”. In Poukhalfa [1996] ECR 1-2253 Advocate General Léger described Article 8 as being of “considerable symbolic value” and suggested that it was the responsibility of the court to take citizenship from the constitutional twilight zone noting that “it is for the court to ensure that its full scope is attained” (page 2271 para 63 of the Advocate General’s Opinion). In the course of giving judgment the court made no reference either to Article 8 or to the Advocate General’s arguments. Advocate General Pergola’s Opinion in the Sala case was delivered on 1 July 1997 and I was helpfully furnished with a copy by the parties to these proceedings. There is no doubt that Advocate General Pergola considered that Article 8( a) was of considerable importance and, I have already referred to his remarks at paragraph 20 of the opinion. At paragraph 23 the Advocate General went on to say:

42. However, as I have already noted above, ultimately, the court steadfastly declined this invitation. I was also provided with a copy of The Times report of the decision of the European Court of Justice in Wijsenbeek – case C-378/97 in which Article 8( a) was referred to by the court, but only upon a hypothetical basis.

43. In the circumstances I am clearly bound by the authority of the Court of Appeal decisions and, accordingly, I reject Mr Larkin’s submissions in relation to Article 8( a). Despite the valiant efforts of the Advocates General, there is nothing in the European jurisprudence to which I have been referred that suggest to me that the decisions of Phull and Vitale should be reconsidered and, accordingly, bearing in mind the guidance afforded by R v International Stock Exchange of the UK ex parte Else [1993] QB 534, I do not consider that this is an appropriate case for an Article 234(177) Reference.

44. During the course of his helpful submissions Mr Larkin advanced the proposition that accession by a national State to an international agreement or treaty gives rise to a substantive legitimate expectation that the State will honour the terms of that agreement or treaty. In this context Mr Larkin referred to Article 3(1) of the United Nations Convention on the Rights of the Child (1989) (“the 1989 Convention”). Article 31 of the 1989 Convention provides:

45. Mr Larkin also referred to Articles 3(2), 5, 6(2), 7 and 9 of the 1989 Convention. In the course of developing this argument, Mr Larkin drew my attention to the recent Court of Appeal decision in R v North and East Devon Health Authority ex parte Coughlan [2000] 2 WLR 622: [2000] 3 All ER 850 upon which he relied as confirming the existence of the concept of substantive legitimate expectation and he referred to R v Secretary of State for the Home Department ex parte Ahmed and Patel [1999] IMM AR 22 and to R v Uxbridge Magistrates’ Court ex parte Adimi [1999] 4 All ER 520 as authority for the proposition that such a substantive legitimate expectation could be founded upon the provisions of an international Convention or treaty.

46. Mr Larkin accepted that a clear statutory intent to postpone the coming into effect of legislation seeking to apply the terms of such a treaty or Convention would prevent such a legitimate expectation from coming into existence noting the remarks of Lord Steyn in R v DPP ex parte Kebeline [1999] 4 All ER 801 at 833. However, he submitted that neither the Court of Appeal nor the House of Lords in Kebeline had rejected the proposition that a substantive legitimate expectation could be founded upon an international treaty or convention out of hand or condemned it as fundamentally flawed.

47. In the course of a carefully constructed submission advanced on behalf of the respondent in relation to this aspect of the case, Mr McCloskey urged upon the court the importance of returning to the historical origins of the doctrine of legitimate expectation and, in particular, the analyses contained in the judgments in Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374. Mr McCloskey also relied upon the detailed analysis of the doctrine of legitimate expectation contained in the judgment of Carswell J, as he then was, in Re Police Association for Northern Ireland’s application [1990] NI Reports 258 at 271 to 274. At the conclusion of this review Carswell J, as he then was, expressed the view that the doctrine of legitimate expectation was part of the corpus of law concerned with the duty to act in accordance with the rules of natural justice and went on to observe, at page 274:

48. Since the House of Lords decision in the GCHQ case the law relating to judicial review has undergone a period of widespread and rapid development and one of the recurring themes has been the debate as to whether the doctrine of legitimate expectation should be confined to the manner or procedure by which decisions are reached or whether it extends to securing a substantive benefit. Laws LJ has tended to espouse the former view eg R v Secretary of State for Transport ex parte Richmond LVC [1994] 1 All ER 577 – while the latter approach has been favoured by Sedley MJ eg R v Ministry of Agriculture, Fisheries and Food ex parte Hamble [1995] 2 All ER 714. In R v Secretary of State for the Home Department ex parte Hargreaves [1997] 1 All ER 397 the Court of Appeal in England rejected the concept of a substantive legitimate expectation. At page 4112 Hirst LJ said:

49. At page 416 Pill LJ observed:

50. In the course of giving judgment at first instance Carswell LCJ in Re Croft’s application [1997] NI Reports 1 referred to the depth of judicial and academic debate upon this topic and, after reviewing some of the more recent authorities and Articles, he held that if the doctrine of legitimate expectation extended to the upholding of substantive rights there would have to be a clear and unambiguous representation or statement of policy to give rise to an expectation. In his view there was nothing of that nature in Croft’s case. By the time that Croft’s application reached the Court of Appeal Hargreaves had been decided in England and the Northern Ireland Court of Appeal recognised the adverse impact of the latter decision upon the argument of those contending in favour of a substantive legitimate expectation. However, in the course of a lucid and careful analysis of the doctrine of legitimate expectation in Re Hampson’s application [1998] NIJB 188 Girvan J with reference to the decision in Hargreaves observed, at page 193:

51. It seems clear that in Kebeline the argument in favour of a substantive legitimate expectation was pursued more vigorously in the Court of Appeal than before the House of Lords. In the former both Lord Bingham CJ and Laws LJ referred to the argument in favour of legitimate expectation of substance based on the decision in R v Secretary of State for the Home Department ex parte Ahmed and Patel in which Lord Woolf MR had cited with approval the reasoning of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 at 385. In Ahmed and Patel Lord Woolf MR said, at page 583-584:

52. It is to be noted that Lord Woolf’s remarks expressed possibilities and that on the following page at 584F he found that there was no basis in fact, in the context of the relevant policies, for the legitimate expectation sought to be established on the part of the applicants. No doubt this was the reason while Laws LJ referred to Lord Woolf’s observations as obiter in Kebeline – see page 825 of his judgment.

53. At page 539 Newman J referred to the judgments of Mason CJ and Dean J in the Australian case of Teoh and went on to say:

54. Newman J recorded that no argument had been advanced on the basis that the facts gave rise to a substantive legitimate expectation, noted that this was a developing area, referred to Coughlan’s case and, in the absence of argument, he did not express any view.

55. In his able submissions on behalf of the respondent, Mr McCloskey criticised a number of the more recent authorities for failing to adequately analyse the historical origins of the doctrine of legitimate expectation. He argued that such analysis would inevitably confirm that the doctrine was restricted to procedural fairness. I accept entirely the wisdom of this submission, but I think that, as always, it is important to bear in mind that history is a continuous process and that the vital dynamic of the common law has been an enduring tension between stability and creative development. As SedleyLJ in England and Girvan J in this jurisdiction have both noted substantive legitimate expectation is well established in Community Law and the rules and jurisprudence of this system have served to substantially influence domestic law since the passage of Section 2(1) of the European Communities Act 1972. In the field of judicial review of administrative decisions a strict adherence to the formalities of jurisdiction has gradually given way to a much greater emphasis upon the concept of “fairness”. This concept lies at the heart of the doctrine of legitimate expectation in so far as it recognises that the particular circumstances of an individual case may have a significant impact upon the way in which a decision-maker exercises his powers and duties. In Coughlan’s case the Newcourt patients moved to Mardon on the strength of an assurance that Mardon would be their home as long as they chose to live there. This was an express promise or representation made on a number of occasions in precise terms. It was made to a small group of severely disabled individuals who had been housed and cared for over a substantial period in the health authority’s predecessor’s premises at Newcourt. It specifically related to identified premises which, it was represented, would be their home for as long as they chose. It was in unqualified terms. It was repeated and confirmed to reassure the residents. It was made by the health authority’s predecessor for its own purposes, namely to encourage Ms Coughlan and her fellow residents to move out of Newcourt and move into Mardon House, a specifically built substitute home in which they would continue to receive nursing care. The promise was relied on by Ms Coughlan. I note that these would appear to be precisely the type of circumstances anticipated by Carswell LCJ in the passage from Croft’s application cited above.

56. The judgment of the court in Coughlan’s case was delivered by Lord Woolf MR who identified three categories of legitimate expectation. These were:

57. In cases in the third category the court held that, once a legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy. Rather than asking whether the decision was ultra vires in the restricted Wednesbury sense the court went on to focus upon the issue as to whether, through unfairness or arbitrariness, it amounted to an abuse of power. I pause simply to note that whereas arbitrariness, or capriciousness, might well be understood by judicial review practitioners as forms of Wednesbury “irrationality”, “unfairness”, falling short of irrationality, would be regarded as a significant development by those taking a traditional view of legitimate expectation. At page 648 Lord Woolf, after noting that the court’s task was to ensure that the power to make and alter policy was not abused by unfairly frustrating legitimate individual expectations went on to say:

58. It is not altogether easy to see how a decision could be both described as rational, whether “bare” or otherwise, and at the same time be objectively “arbitrary”. Provided that it was rational the fact that it might also be seen as “unfair” by an applicant would not be sufficient to fall foul of the traditional Wednesbury test. I also note that, ultimately, the Court of Appeal found that the Health Authority failed to take into account that it had a legal obligation to provide Ms Coughlan with ‘a home’ thereby revealing territory much more familiar to the traditional Wednesbury practitioners. However, it is clear that the court did intend to revisit the Wednesbury limits in adopting the “abuse of power” test and at page 649 the approach was summarised in the following terms:

59. The court went on to confirm that fairness in such a situation, if it is to mean anything, must include “fairness of outcome”.

60. The final authority that I intend to mention is that of R v Secretary of State for Education and Employment ex parte Begbie [2000] 1 WLR 1115. This case is significant in the development of the doctrine of substantive legitimate expectation in so far as it appears to indicate a reconciliation between Laws LJ and Sedley LJ as well as some degree of reconsideration of Hargreaves. The issue was whether a child had established a legitimate expectation that her assisted place at an independent school would continue on the basis of various statements made by Ministers of the present Government both when in opposition and subsequent to election. The court comprised Peter Gibson, Laws and Sedley LJJ. At page 1124 Peter Gibson LJ, who, in Hargreaves, had agreed with his fellow Lord Justices in describing the doctrine as “heresy” and “wrong in principle”, accepted that the rule did operate in the field of substantive as well as procedural rights although he went on to emphasise that it would be wrong to understate the significance of reliance in this area of the law. In his view it was very much the exception, rather than the rule, that detrimental reliance would not be present when the court finds unfairness in the defeating of a legitimate expectation. At page 1129 Laws LJ said:

61. At page 1130 he went on to say:

62. In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players. Here, with respect, lies the importance of the fact in the Coughlan case [2000] 2 WLR 622 that few individuals were effected by the promise in question. The case’s facts may be discreet and limited, having no implication for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layer effects, upon whose merits the court is asked to embark. The court may be able to visit clearly and with sufficient certainty what the full consequence will be of any order it makes. In such a case the court’s condemnation of what is done as an abuse of power, justifiable (or rather, falling to be relieved of its character as abusive) only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power.

63. There will of course be a multitude of cases falling within these extremes, or sharing the characteristics of one or other. The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court’s supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoy expectations generated by earlier policy.”

64. It seems clear that, if the applicant in that case had been able to show reliance and detriment in consequence, Laws LJ would have been prepared to uphold the claimed legitimate expectation. Sedley LJ indicated his agreement with his brethren observing, in relation to the argument in relation to legitimate expectation, that the representation had not been made to the applicant and that it had been corrected before she had altered her position in reliance upon it. However, the circumstances in both Coughlan and Begbie are very different from the present case.

65. Applying the principles which appear to have emerged from the above review of authorities, I am quite satisfied that the applicant cannot establish a legitimate expectation that Article 31 or any of the other provisions of the 1989 Convention will be directly applied to her case. To permit her to do so would be to incorporate the provisions of the Convention by the “back door”.

66. In the Court of Appeal in Kebeline [1999] 4 All ER 801 Laws LJ said, in relation to a similar argument, at page 825:

67. However, as Laws LJ himself went on to say in Kebeline this does not necessarily mean that a relevant Convention is a “dead letter” in the law of England. In that case, dealing with Article 8 of the ECHR, Laws LJ went on to observe:

68. It is also important to note, at this point, that in the course of giving judgment in Minister for Immigration and Ethnic Affairs v Teoh [1995] 128 ALR 353 at 365 Mason CJ and Deane J in the High Court of Australia referred to the relevant Convention as an adequate foundation for legitimate expectation “absent statutory or executive indications to the contrary”. The 1989 Convention was adopted by the United Kingdom Government on 16 September 1991 subject to a reservation in the following terms:

69. As Mr Stephen Still of the Home Department Immigration and Nationality Directorate recorded in his affidavit dated 14 April 1998, the applicant appealed from the initial determination by Mr Waddell. This appeal prompted a reconsideration of the determination which concluded that the determination had been properly made. Subsequent to the application for judicial review the determination was reviewed for a second time on behalf of the Secretary of State and, upon this occasion this involved an assessment of the applicant’s grounds of challenge by way of judicial review together with her affidavits and exhibits thereto. At paragraph 8 of his said affidavit Mr Still confirmed that the Secretary of State did have regard to the provisions of the 1989 Treaty concluding that the domestic immigration laws and policies which had produced the impugned determination were broadly consistent with the thrust of the Convention. The Secretary of State also noted that the Convention did not form part of domestic law and that the reservation thereto was valid.

70. In relation to a similar argument based on the 1989 Convention in Gangadeen and another v The Secretary of State for the Home Department [1998] IMM AR 106 Hirst LJ observed, at page 116, that the reservation amounted to an “insuperable difficulty” in bringing into play the provisions of the 1989 Convention. After quoting the reservation he went on to say, at page 117:

71. Mr Larkin accepted the significance of the UK reservation to the 1989 Convention, but submitted that the proper way for this to be dealt with was for the decision-maker first to consider the interests of the child and then to determine whether, in the circumstances of a particular case, it was right to apply the domestic legislation ie the 1971 Immigration Act and Rules. He argued that the respondent’s affidavits did not disclose any material to indicate that the interests of the child had been properly considered. In my view this submission simply does not do justice to paragraphs 5-10 of Mr Still’s affidavit of 14 April 1998. I consider that any legitimate expectation enjoyed by the applicant would have been limited to an expectation that the provisions of the 1989 Convention, including the reservation, as interpreted by domestic law would be taken into account by the decision-maker in relation to her child. I am satisfied on the basis of Mr Still’s affidavit that this expectation has been fulfilled in this case.

72. While I accept the cautionary words of Laws LJ in Begbie’s case that the categories are not “hermetically sealed”, if it was necessary for me to do so, I would be quite satisfied that the facts of this case place any legitimate expectation which the applicant might enjoy in relation to the provisions of the 1989 Convention firmly in the first of the three categories identified by Lord Woolf MR at page 645 of the judgment in Coughlan’s case and that, consequently, the court is confined to reviewing Mr Still’s decision upon Wednesbury grounds. It will be clear from my previous remarks that I am quite satisfied that such grounds have not been established in this case. Accordingly, I reject Mr Larkin’s submissions in relation to this aspect of the case.

73. As he had in relation to Article 8 of the ECHR, Mr Larkin also argued that it was Wednesbury irrational to merely “have regard to” rather than to apply the provisions of the 1989 Convention. I reject this argument also for the reasons set out in the previous section relating to “Irrationality and Article 8 ECHR”.

74. During the course of setting out the applicant’s history I have already referred to an alleged suicide attempt together with subsequent threats to commit suicide. During the course of her hospital admissions she was psychiatrically assessed by both a Psychiatrist and a Clinical Psychologist with the latter recommending referral to the Community Psychiatric Service. As I have already noted, on 25 April 1997, she presented to the Night Staff at the Royal Victoria Hospital in a very distressed condition expressing suicidal thoughts. After the birth of her child, staff on the ward requested further assessment after becoming increasingly concerned at the applicant’s level of distress, although I have also noted that, ultimately, the child’s name was removed from the Child Protection Register.

75. In the course of his report dated 9 July 1998 Dr Philip Megarry, Consultant Psychiatrist, recorded that he had been involved in the applicant’s treatment during her stay in the Royal Maternity Hospital in July 1997 and that he had seen her again on 9/10 June 1998 for the purpose of carrying out a medical examination and recording a full personal, social and medical history. Dr Megarry noted that, upon that occasion, he found no evidence of psychotic symptoms, current suicidal thinking or clinical depression. The applicant told him that she could not face the possibility of being returned to America and that, if this happened, she thought that the best thing might be for her to give up the baby for adoption and commit suicide. Dr Megarry advised the applicant to continue on her anti-depressant medication and concluded his report in the following terms:

76. On 30 September 1998 Stephen Still lodged a further affidavit dealing with his consideration of the Report of Legal Aid of Central Texas as well as the affidavits sworn by Janique Burden and Dr Megarry. Mr Still referred to Dr Megarry’s negative findings on examination and, in relation to the applicant’s suicide threat, he said, at paragraph 4:

77. At paragraph 7 of the same affidavit Mr Still confirmed that the determination to deport the applicant remained unchanged stating, specifically in relation to the suicide threat:

78. Mr Larkin submitted that the content of paragraphs 4 and 7 of his second affidavit indicated that Mr Still had mis-directed himself with respect to the nature and gravity of the risk to the applicant’s life in the event of deportation as detailed in Dr Megarry’s report. By way of response, Mr McCloskey refuted the suggestion on any mis-direction and reminded the court that Mr Still had indicated that he had taken into account the risk and Dr Megarry’s report. In such circumstances, according to Mr McCloskey, the relevant test was that of Wednesbury unreasonableness with weight being a matter for the decision-maker.

79. The right to life is recognised as fundamental not only by Article 2 of the ECHR but, I venture to suggest, in common with a number of other Convention rights, also at common law. In practice, the applicant in these proceedings is a “single mother” and consequently the risk of her suicide also has devastating implications for her child. In Austin’s application [1998] NI Report 327 I respectfully adopted the approach of Sir Thomas Bingham MR, as he then was, in R v Ministry of Defence ex parte Smith [1996] QB 517 when he approved the test of irrationality in this type of circumstance in the following terms:

80. I would also refer to the judgment of Lord Woolf MR in R –v- Lord Saville ex parte A [1999] 4 All ER 860 at 870g-872e and 881f to 882c.

81. The correct approach to this type of issue has been recently further considered by the Court of Appeal in R v Secretary of State for the Home Department ex parte Turgut (The Times, February 15, 2000). Turgut’s case concerned a potential violation of Article 3 of the Convention not to be subjected to torture or inhuman or degrading treatment or punishment. In the course of giving his judgment, Simon Brown LJ concluded that the domestic court’s obligation on an irrationality challenge in an Article 3 case was to subject the Home Secretary’s decision to rigorous examination and it did that by considering the underlying factual material for itself to see whether or not it compelled a different conclusion to that arrived at by the Home Secretary. Only if it did would the challenge succeed. However, he observed that the court would not pay any special deference to the Home Secretary’s conclusion of the facts firstly, because of the fundamental nature of the Article 3 right and secondly because the court was hardly less well placed than the Home Secretary to evaluate the risk once the relevant material was placed before it. His Lordship rejected the applicant’s contention that the Home Secretary had knowingly mis-represented the evidence or shut his eyes to the true position, but accepted that the court must recognise at least the possibility that the Home Secretary had:

82. In this context I note that Dr Megarry’s report was exhibited to his affidavit dated 17 July 1998 subsequent to three considerations of the issue each of which was determined against the applicant.

83. Taking into account the fundamental nature of the right concerned and subjecting the decision to anxious and rigorous scrutiny in accordance with the decisions of the Court of Appeal in Smith and Turgut I have come to conclusion that the Secretary of State has mis-directed himself in relation to the risk of the applicant’s suicide. It is clear from paragraph 4 of Mr Still’s second affidavit that he did depreciate the evidence of this risk by reason of the fact the applicant expressed it only in terms of a possibility, that Dr Megarry did not analyse in detail the prospect of the threat materialising and that he did not analyse or discuss in any detail the motivation or genuineness of the threat. In my view this simply does not reflect a proper or balanced assessment of the opinion expressed by an eminent Consultant Psychiatrist who, after taking into account his personal knowledge of the applicant, together with a detailed personal, social and medical history, came to the clear conclusion in relation to the risk of suicide that it was “clearly a major concern if she is to be deported”. In my view this opinion in itself was quite capable of providing firm evidence that the risk would occur.

84. Accordingly, I will make an order of certiorari quashing the decision of the Secretary of State upon this ground.