Scottish Court of Session Decisions

The facts in this petition are not in dispute. The petitioner is a citizen of Pakistan who was born on 22 June 1966. When he arrived in the United Kingdom on 5 January 1991 he was given leave to enter as a visitor until 26 August 1991. On or about 8 August 1991 he applied for leave to remain in the United Kingdom on a working holiday. That application was refused on 15 April 1992 and an appeal against that decision was refused by an adjudicator on 28 April 1993. On 12 July 1993 the petitioner was advised by the respondent that he would be liable for deportation if he failed to leave the United Kingdom voluntarily. On or about 19 July 1993 the petitioner applied for political asylum. This application was refused on 2 November 1994. On the same date the respondent gave notice of an intention to make a deportation order in respect of the petitioner under section 3(5)(a) of the Immigration Acts 1971 and 1988. That notice constituted enforcement action against

the petitioner as defined in Home Office Guidance Policy DP/2/93. On 4 January 1995 the petitioner married a citizen of the United Kingdom. By letter dated 26 January 1995 an application was made by the petitioner to the respondent for exceptional leave to remain in the United Kingdom on the basis of his marriage to a United Kingdom resident. A questionnaire completed by the petitioner in support of this application stated that he and his wife had lived together only from the date of the marriage on 4 January 1995. The petitioner's application for exceptional leave to remain on the basis of his marriage was refused by letter from the respondent dated 4 January 1996 and a deportation order was served upon the petitioner on that date. The petitioner then raised a petition for judicial review of that decision which was dismissed on 17 October 1996. On 20 November 1996 a child was born of the marriage entered into by the petitioner on 4 January 1995. Following upon the birth of the said child a further application was made on behalf of the petitioner to the respondent for leave to remain in the United Kingdom on the basis of his right to respect for his settled family life. That application was refused by letter from the respondent dated 17 January 1997. On 14 February 1997 a first order was granted in respect of the present petition.

The petition called for a first hearing before me on 13 November 1998 when the petitioner sought declarator that the respondent erred in law on 4 January 1996 and 17 January 1997 in refusing the petitioner indefinite leave to remain in the United Kingdom and for reduction of his said decisions. The decision letter of 4 January 1996 is in the following terms:

Although the respondent in his answers has a plea to the effect that the petitioner having unreasonably delayed to challenge the validity of the said decision of 4 January 1996 is now barred from challenging it, counsel accepted that the two letters from the respondent should be considered together as forming part of the one decision. The decision of the respondent dated 17 January 1997 is in the following terms:

It is clear that the petitioner's marriage took place after a decision had been made to deport him and, indeed, after he had been served with a deportation order. It was a matter of agreement between the parties at the hearing before me that in terms of Rule 284 of the Immigration Rules (HC395) the Secretary of State was entitled to refuse any application for an extension of stay on the part of the petitioner as the spouse of a person present and settled in the United Kingdom. The Secretary of State has, however, a general discretion as to whether or not to enforce that Rule and what he sought to do was to consider and apply the departmental policy guidelines in marriage applications which are contained in the document DP/2/93. These guidelines have been replaced by the policy statement DP/3/96 but since the marriage in the present case came to the attention of the Secretary of State before 13 March 1996 policy DP/2/93 applies.

Mr Bovey for the petitioner submitted that the Secretary of State had misunderstood and misapplied the policy set out in DP/2/93. In particular, it was apparent from the terms of the letters that the respondent had taken the view that the fact that the petitioner's marriage post-dated the enforcement proceedings excluded any consideration of the merits of the marriage and that was an erroneous interpretation of the policy document. The introduction to the document is in general terms and indicates that the guidance applies to all cases involving marriage and children in the light of Article 8 of the European Convention on Human Rights and recent decisions of the European Court of Human Rights. This approach was apparent in paragraph (1) of the guidelines where it is declared that all deportation and illegal entry cases must be considered on their individual merits and that where enforcement action is under consideration or has been initiated and the offender is married, a judgment will need to be reached on the weight to be attached to the marriage as a compassionate factor. Mr Bovey's principal submission was that both the said decision letters demonstrate the same error on the part of the respondent, namely a failure to reach a judgment as to the weight to be attached to the petitioner's marriage as a compassionate factor in terms of paragraph (1) of the policy document. Reference was made to R. v The Secretary of State for the Home Department ex parte Ekewuba [1995] Imm.A.R. 89 and R. v The Secretary of State for the Home Department ex parte Kumar [1996] Imm.A.R. 190 where Sedley J said (at p.193):

Mr Bovey also relied on certain passages in the opinion of Lord Eassie in Abdadou v The Secretary of State for the Home Department 1998 S.C. 504. It is clear however that in that case the policy document under consideration was DP/2/96 and since there are clearly differences between the two documents, the latter laying down a stricter policy, I do not find consideration of that case particularly helpful.

I do not consider that Mr Bovey's submission is well founded. The policy document is, in my view, concerned only with marriages which pre-date any enforcement proceedings. Paragraph (1) does no more than set out the general approach which would be taken by the Secretary of State in line with Immigration Rule 364. The policy document has to be read in conjunction with the relevant immigration rules and it is inappropriate to make a closely analytical assessment of its terms (Secretary of State for the Home Department ex parte Hastrup [1996] ImmAR 616 per Lord Justice Russell at p.623). When the petitioner's application for exceptional leave to remain in the United Kingdom on the basis of his marriage was presented he was required to complete a marriage questionnaire. The information as to the facts and circumstances of the marriage contained in his response to the questionnaire was before the respondent. It follows that the respondent has fulfilled the duty incumbent upon him of taking into consideration the fact of the petitioner's marriage. I consider that that was all that was required of him and I do not read the decisions in Ekewuba or Kumar (supra) relied upon by Mr Bovey as authority for the view that he had to do more. Thereafter, the weight to be attached to the marriage was a matter entirely within the respondent's discretion and his decision, as expressed in his letters, that the weight to be attached was not sufficient to bring it outwith the rule against post-enforcement marriage (which would require wholly exceptional circumstances) was one he was entitled to reach; the respondent's decision could only be challenged on the ground of it being unreasonable in the Wednesbury which was not suggested in this case.

The rationale for drawing a distinction between pre and post-enforcement action marriage is not difficult to understand: a person who enters into a marriage in the full knowledge that enforcement proceedings have been commenced cannot expect that his marriage will offer him protection or confer an advantage on him. As Sedley J puts the matter in R. v The Secretary of State for the Home Department ex parte Balwant Singh [1997] Imm.A.R.331 at p.334:

The view that the policy set out in DP/2/93 has the blanket effect of shutting out all post-enforcement action marriages however genuine appears to be well settled and has been applied by Lord MacLean in the petition of Ravindra Singh (11 November 1997) and by the Court of Appeal in England in Adebiyi v Secretary of State for the Home Department [1997] Imm.A.R. 57; R. v Secretary of State for the Home Department ex parte Urmaza 1996 C.O.D. 479 and R. v Secretary of State for the Home Department ex parte Mohammed Hussain, Ahmed and Others, an as yet unreported decision dated 30 July 1998.

It follows from what I have said that the respondent when issuing the said decision letters did not misunderstand or misapply the policy set out in the guidance document. On the contrary, what is contained in these letters and, in particular, his view that the fact that enforcement action pre-dates the petitioner's marriage is fatal to his application, correctly reflects the policy set out in the guidelines. I will accordingly refuse the petitioner the remedy he seeks in terms of paragraphs (3)(c) and (d) of the petition and uphold the respondent's second plea-in-law; I will repel the petitioner's pleas-in-law and dismiss the petition.