Scottish Court of Session Decisions

This petition for judicial review is concerned with the refusal of the respondent Secretary of State for the Home Department to revoke a deportation order made in respect of the petitioner. The proceedings have followed a protracted course, a first order in the petition having been made on 4 July 1995. The petitioner's immigration history is also rather lengthy. It is fully set out in the Home Office letter of 10 August 1998 (19/1 of process). It is not necessary to rehearse that history in full but the chronology of the principal events material to the matters raised in this petition is as follows.

The petitioner is a national of the Republic of Pakistan. She was formerly known as Mrs Naz and as such she obtained a visa allowing her to come to the United Kingdom for a period of 12 months as the foreign spouse of Mr Arshad Mahmood. She was admitted to the United Kingdom on that basis on 12 July 1990. On 23 November 1990 the Home Office were informed by Mr Arshad Mahmood that the petitioner had left the matrimonial home on 31 October 1990; that she had refused his request to return; and that the marriage was irretrievably broken down - a view confirmed later by the petitioner's own solicitors in a letter of 11 February 1991. The marriage to Mr Arshad Mahmood having broken down, the petitioner was advised on 15 January 1991 that she could no longer remain in the United Kingdom as the spouse of Mr Mahmood. Thereafter a number of representations were successively made to the Home Office with a view to the petitioner's obtaining leave to remain in the United Kingdom on various bases but such leave was always refused. The refusal of the Home Secretary to grant leave was appealed to an Adjudicator and in due course on 11 November 1992 the Adjudicator determined the appeal adversely to the petitioner. Leave to appeal the Adjudicator's dismissal of the appeal to him was refused by the Immigration Appeal Tribunal on 28 January 1993.

On 14 May 1993 the petitioner's then solicitors were advised by the Home Office that the petitioner should make arrangements to leave the United Kingdom or she would be liable to be deported. Since the petitioner did not respond to this invitation by leaving the United Kingdom voluntarily, she was served with a notice of the intention of the Secretary of State to make a deportation order against her in respect that she was overstaying her leave in terms of section 3(5) of the Immigration Act 1971. That notice was served upon the petitioner on 28 September 1993. (In terms of the Immigration Rules and the Department Policy document DP2/93, to which reference will be made later, that date - 28 September 1993 - is accepted as the date at which "enforcement action" began.) The petitioner appealed against the decision of the Home Secretary to make a deportation order but that appeal was dismissed by the Adjudicator on 3 February 1994. Some days later, on 11 February 1994, a Member of Parliament wrote on the petitioner's behalf representing inter alia that the petitioner had been prescribed anti-depressants and was considering certain proposals for marriage, one of which was of interest to her. In view of the suggestion that the petitioner was suffering from depression the Home Office invited the submission of a psychiatric report. None was submitted. A deportation order was duly made on 5 July 1994 but it was not until 30 April 1995 that immigration officials were able to locate the petitioner in order to serve the deportation notice upon her.

When the deportation order was served upon her the petitioner, for the first time, informed the immigration officials that for the preceding 16 to 17 months she had been co-habiting with a Mr Jamil; that she and Mr Jamil had undergone a religious marriage ceremony on 30 January 1994; but that they had not contracted any civil marriage because the divorce proceedings between Mr Jamil and his spouse had not yet been concluded. Mr Jamil, it appears, comes from Pakistan but is a citizen of the United Kingdom. By letter of 26 June 1995 (8/10 of process) a request was made on behalf of the petitioner by the Ethnic Minorities Law Centre in Glasgow that the deportation order be revoked on the basis that Mr Jamil had obtained decree nisi of divorce on 21 June 1995 and that he and the petitioner intended to marry on 10 July 1995. At that time practical arrangements had been made for the petitioner to be deported to Pakistan on 3 July 1995. The request for a revocation of the deportation order was refused by the respondent by Home Office letter of 29 June 1995 (8/11 of process). In the summary, the principal ground of refusal was that since the petitioner's relationship with Mr Jamil had begun after the date of enforcement action the petitioner had no claim to remain in terms of the Immigration Rules and in relation to the Secretary of State's discretion she could not, for the like reason, benefit from the terms of the Policy Document DP2/93.

Following the issue of the Home Office letter of 29 June 1995, the present petition for judicial review was commenced. For various reasons, including the obtaining of legal aid and a change in agency, which it is not necessary to describe in detail, time elapsed before a first hearing in the petition was fixed for 20 March 1997. In the meantime the petitioner had given birth to a child by Mr Jamil on 15 September 1996. By letter of 16 October 1996 her solicitors wrote to the Home Office requesting that she be allowed to remain in the United Kingdom by reason of the birth of the child (who had United Kingdom nationality). That request was refused by Home Office letter of 12 November 1996. On the day preceding the date fixed for the first hearing the petitioner's solicitors intimated adjustments to the petition to reflect these developments and it appears that, of consent, the first hearing did not proceed. A further first hearing was fixed for 7 May 1998. That hearing did not however take place because, following discussions, the respondent agreed to a request that he consider the petitioner's case of new and take a fresh decision on whether the deportation order should be revoked. During that reconsideration of the petitioner's case the respondent was aware that the petitioner was expecting a further child by her husband, Mr Jamil. Consequent upon the re-consideration there was issued the decision letter No 19/11 of process of 10 August 1998 refusing to revoke the deportation order. The petitioner thereafter lodged a Minute of Amendment directing the terms of the petition towards the lawfulness of that decision and a further first hearing was fixed for 10 June 1999.

Although in the course of his submissions at that hearing Mr McDonald, who appeared for the petitioner, advanced certain criticisms of the decision letter of 29 June 1995, as explained in the affidavit of Miss Fiona M Ferguson (16/1 of process), and also the letter of 12 November 1996, he rightly acknowledged that in order for the petitioner to succeed it was necessary for him to establish that the later decision of 10 August 1998 fell to be reduced. I shall accordingly consider the submissions made as respects those two earlier letters to the extent that they were adopted or might otherwise be applicable in the case of the crucial letter of 10 August 1998. Mr Murphy, who appeared for the respondent, agreed that the only decision which now mattered was the decision of 10 August 1998 in which the Secretary of State again declined to revoke the deportation order. I shall refer to that letter as "the Decision Letter".

The Immigration Rules (HC395) contain certain provisions concerning the revocation of a deportation order. Thus Rules 390-392 provide as follows:-

For completeness I would also mention that I was referred by both counsel to other provisions of the Immigration Rules, particularly those relating to the requirements for leave to enter as a spouse of a person settled in the United Kingdom (281); for extension of such leave (284); for leave to enter as a fiancée (290); and the factors considered in deciding whether to make a deportation order (364). However, counsel for the petitioner accepted that the petitioner had no claim under the Immigration Rules to be given leave to remain in the United Kingdom and I did not understand him to contend that the decision in issue was other than a matter of the exercise of the Secretary of State's discretion.

In order to assist his officials in the evaluation of compassionate circumstances where marriage is one such circumstance to be taken into account in the exercise of discretion in deportation or illegal entry cases, the Home Secretary issued in 1993 a Policy Document known as DP2/93. It was subsequently replaced by a further document known as DP3/96 but the earlier document remains the one relevant to the petitioner's case. For present purposes the pertinent parts of DP2/93 are in these terms:-

In the course of his submissions counsel for the respondents referred to certain authorities in which the nature of the Secretary of State's extra statutory discretion and the policy guidance in DP2/93 have been discussed, particularly Jordan Iye v Secretary of State for the Home Department [1994] Imm. A. R 63, Gangadeen v Secretary of State for the Home Department [1998] Imm. A. R 106 and R. v Secretary of State for the Home Department ex parte Ahmed & Patel [1998] INLR 570. In one of the passages to which counsel for the respondent referred, Lord Wolffe, M.R. in his judgment in Ahmed & Patel said, at 577, in relation to the policies contained in DP2/93 and DP3/96 -

Counsel for the respondent also referred to the later passage in that judgment dealing with the relevance of the ECHR and counsel referred to the decisions in Abdul Aziz & Others v UK (1985) 7 EHRR 471 and Lukka v United Kingdom 9 EHRR 513.

I turn now to the criticisms made of the Decision Letter.

In the Decision Letter, having fully set out the petitioner's immigration and personal history and before going on to set out the terms of Rule 390 and his reasoning, the Secretary of State says that he

Counsel for the petitioner sought to place emphasis on the employment of the word "uniquely". As I understood it, his contention was that the Secretary of State had applied too high a test by requiring the presence of "unique" circumstances whereas all that Rule 390 indicated was a consideration of compassionate circumstances generally. I consider that contention to be unsound. Apart from the fact that the terms of Rule 390 were plainly in the decision taker's mind since their terms are set out immediately after the quoted excerpt it is clear from a reading of the Decision Letter as a whole that the adverb is not used in a literal or absolute sense but simply to convey the view that the petitioner's personal and compassionate circumstances were not judged sufficiently weighty to justify revocation of the deportation order.

In a further chapter of his submissions counsel for the petitioner challenged the view of the Secretary of State that the petitioner did not benefit from DP2/93. Counsel said that the criteria listed in sub-paragraphs (b), (c) and (d) of para. 2 were met and also that paragraph 3 might be of guidance. If I correctly comprehended the essence of this submission it was to the effect that the decision taker, in adopting the view that DP2/93 assisted an applicant only if the marriage had taken place prior to the taking of enforcement action had misunderstood or misapplied the guidance in DP2/93. Counsel referred to my decision in Abdadou v Secretary of State for the Home Department 1998 SC 504 but since that case was concerned with a marriage pre-dating enforcement action and the later guidance, DP3/96, I do not consider that it assists the petitioner in this submission. In my opinion the decision taker correctly understood and applied DP2/93 in the present case. The provisions of DP2/93 indicate circumstances in which the weight to be attached to marriage as a compassionate circumstance will, as a general rule, be such as to bring the scales down on the side of not pursuing or initiating deportation action. However, an essential condition of DP2/93 is that the marriage shall have pre-dated enforcement action (which is not the position in the present case). In his judgment in Ahmed & Patel, Lord Wolffe, M.R. observed, in relation to DP2/93 that, "If enforcement action pre-dates the marriage, this will be fatal" (578B). As it was put by Lady Cosgrove in her Opinion in Mohammed Irfan Ul-Haq (3 December 1998, unreported) -

Lady Cosgrove thereafter referred to a passage from the judgment of Sedley J. in R. v The Secretary of State for the Home Department, ex parte Balwan Singh [1997] Imm. A. R 331 at 334 proceeded to observe under reference to authority in Scotland and England that the policy of excluding all post-enforcement marriages, however genuine, was well settled.

Counsel for the petitioner went on to contend that the Secretary of State had misdirected himself by wholly excluding the existence of the marriage as any part of the matrix of compassionate circumstances to which regard was owed under Rule 390. The basis for this submission appeared to be a passage on page 4 of the Decision Letter in which, having noted that DP2/93 could not avail the petitioner because her relationship with Mr Jamil post-dated enforcement action, the decision taker said -

I do not consider that the passage has the meaning or effect which Mr McDonald sought to attribute to it. Put in proper context, the point being made is that neither the genuineness of the marriage not the ability of Mr Jamil to support the family have any bearing or relevance to the view that DP2/93 does not avail the petitioner. That does not mean however that the existence of the marriage, the birth of the daughter and the child in utero were not compassionate circumstances to be balanced against the public interest.

Finally, counsel for the petitioner put forward a number of points which he said had not received sufficient weight and which thus rendered the refusal to revoke the deportation order unreasonable in the Wednesbury sense. In summary the points were (a) the petitioner had initially come to the UK with leave, to become the spouse of a UK national and although she had married a different person her situation was not greatly different from that in which she had received leave; (b) although the petitioner's husband was from Pakistan, he had come to this country some time ago with the intention of making his life in this country and was a UK citizen; (c) the petitioner's daughter and the child then in utero but now born had a right of abode in the UK and insufficient attention had been paid to their interests; (d) the whole period of the existence of this family unit had been spent in the United Kingdom; (e) the decision taker had allegedly overlooked the probability that if deported the petitioner would require to wait three years before seeking leave for readmission to the United Kingdom to join her husband; and (f) while the Secretary of State had offered to pay the costs of the whole family's removing to Pakistan he had not specifically considered whether the petitioner and her husband could support themselves in that country. For his part, counsel for the respondent stressed the need for the Secretary of State to balance such factors against the public interest in proper immigration control and fairness to those who abided by the rules.

I do not consider that there is any substance in the contention that the Decision Letter is invalid by reason of irrationality. The decision taker was clearly aware of the petitioner's immigration history and the basis upon which she was originally admitted to the United Kingdom. He was aware of and refers to the policy whereby other than in exceptional circumstances a deportation order will not be revoked until the person concerned has been absent from the UK for three years. He was fully aware of the family circumstances current at the time of the decision. So far as the petitioner's child was concerned, the Secretary of State had ascertained that she would be admitted with her mother to Pakistan and, in my view, he was well entitled to form the opinion "that at the age of one year and ten months, she remains young enough to adapt to life in Pakistan without undue hardship or detriment to her overall development". The decision did not necessarily involve the separation of the family since the State would bear the costs of the family removing to Pakistan. With particular regard to the last point mentioned above, there was nothing in the material before the Secretary of State to suggest in any way that the petitioner and Mr Jamil (who comes from Pakistan) would be unable to support themselves in that country.

As already mentioned, the Secretary of State had to weigh the petitioner's personal circumstances against the public interest. In the penultimate paragraph the Secretary of State writes that he

It is apparent that the Secretary of State has given careful consideration to Mrs Jamil's position but, in my opinion, having regard to the nature of his responsibilities, the decision which he has reached is one which he was entitled to take in the exercise of his discretion.

The petition falls to be dismissed.