Scottish Court of Session Decisions

The petitioner is an Indian citizen. On 5 January 1995 he entered the United Kingdom concealed in an H.G.V. from Belgium. He was in possession of a passport to which he was not entitled. On 16 January 1995 he made an application for political asylum. On 3 July 1996 his application for political asylum was refused. On 16 July 1996 he married Salinder Kaur. On 25 July 1996 directions for his removal to India were served on him. His appeal against these directions was heard on 16 January 1997. He failed to attend or be represented at the hearing. On 4 March 1997 the special adjudicator dismissed his appeal. The petitioner did not seek leave to appeal to the Immigration Appeal Tribunal against said dismissal. Removal directions providing for his removal from the United Kingdom were served on him on 24 March 1997. He was taken into custody. He was liberated by order of this court granted on 27 March 1997.

That order was made in this petition, which initially sought merely declarator that the detention of the petitioner was unreasonable and an order for his liberation. His circumstances have since changed on two occasions. A child of his marriage was born on 10 February 1998: the petitioner ceased to cohabit with his wife on 15 July 1998. He remained in Glasgow; his wife and child moved to England. The petition has evolved to reflect these developments, and the subject of the first hearing before me was a decision intimated by letter dated 28 September 1998 to refuse an application by the petitioner for leave to remain in the United Kingdom on account of his domestic circumstances.

In the course of submissions I was also addressed on two other similar applications.

The petitioner had first sought leave to remain in the United Kingdom on account of his domestic circumstances following his marriage. That application was refused and the decision was intimated in a letter from the respondent's office dated 12 August 1996 stating, inter alia, the following:

Following the birth of his child the petitioner applied again for leave to remain in the United Kingdom. Representations in support of the application were sent to the respondent in letters dated 27 January, 3 March, 22 April and 5 June 1998. A letter from the respondent's office refusing the application and explaining why was sent on 5 July 1998. That letter set out a brief history of events and enclosed copies of previous correspondence including the letter of 12 August 1996. The letter continued:

The petitioner again applied for leave to remain following the breakdown of his marriage. His initial application of 10 August 1998 was returned to his solicitors because it was not accompanied by all necessary documents. The application was resubmitted by letter dated 21 August 1998. It is in the following terms:

The respondent's decision to refuse the application is set out in letter dated 28 September 1998 (No. 9/8 of process). That letter contained a brief historical introduction and enclosed copies of previous correspondence. It continued:

It is the decision set out in that letter that the petitioner challenges.

At the outset of his submission Mr Bovey Q.C. for the petitioner indicated that, as well as declarator and reduction in terms of paragraph 4(d) and (g), he also sought declarators in terms of paragraph 4(e) and (f) that the removal would constitute an unnecessary interference with the petitioner's right to respect for his family life and would contravene his right to a fair hearing in the determination of his civil rights. In the end he did not invite me to make declaratory orders in terms of paragraph 4(e) and (f). His refined submission was that I should grant declarator in terms of 4(d) and reduction in terms of 4(g) on two grounds:- (1) the respondent failed to take account of relevant material in reaching his decision, viz. the rights enshrined in Articles 8 and 6 of the European Convention on Human Rights; and (2) the decision, which was effectively to order the removal of the petitioner from the United Kingdom, was one which no Home Secretary acting reasonably would have made since it would deprive the petitioner of the opportunity to pursue and obtain an order for contact with his son.

The relevant Convention rights are in the following terms:

The refining of Mr Bovey's submission followed a review without any clear-cut theme of a number of cases touching upon the effect to be given to the Convention before the material parts of the Human Rights Act 1998 are brought into force. These were R. v Secretary of State for Home Department ex parte Gargadeen [1998] Imm. A.R. 106, Camelot Group plc v Centaur Communications Limited [1999] QB 124, R. v Secretary of State for Home Department ex parte Hargreaves [1997] 1 All E.R. 397, Abdadou v Secretary of State for Home Department 1998 S.C. 504 and the extraordinary case of R. v DPP ex parte Kebiline [1999] 3 WLR 175. While these cases indicate a number of ways in which the Convention may be said to be relevant at the present time to the decision-making process in a domestic law situation, they were no more than an interesting diversion in the present case. Indeed, even Mr Bovey's assertion that the Convention would be a fully fledged part of our domestic law "before this case reaches the Division" added nothing to the argument, since the respondent's case was quite simply that Articles 8 and 6 should be taken into account so far as relevant in arriving at a decision such as the one challenged. That had been the respondent's declared position in another similar case to which Mr Bovey referred in the same context, viz. R v Secretary of State for Home Department ex parte Zighem [1996] Imm. A.R. 194 at 198-199. In that case the question was whether the respondent had considered the case properly in the light of Article 8 of the Convention. Letham J. observed:

The letter in which the respondent referred to Article 8 in that case was written on 5 August 1994.

It was, therefore, unsurprising to hear Mr Lindsay for the respondent make it clear at an early stage in Mr Bovey's submission that the respondent accepted that in this case there was a family relationship between the petitioner and his son to which Article 8 applied and state expressly that the respondent's decision was made in recognition of that relationship. That was simply to recognise what was established by a series of cases in the 1980s, including Abdulaziz v United Kingdom (1985) 7 EHRR 471, W. v United Kingdom (1987) 10 E.H.R.R. 20, Berrehab v The Netherlands (1989) 11 EHRR 322 and Keegan v Ireland (1994) 18 EHRR 342, that relationships between spouses and between a spouse and child may fall within Article 8 even though the parties do not cohabit.

It was the petitioner's submission with reference to Article 8 that his removal from the United Kingdom would make it impossible for him to continue any family relationship with his son. Since that was an interference with the right to respect for family life in terms of Article 8(1), it required to be justified by reference to Article 8(2). The requirements of Article 8(2) were three-fold. The removal must first of all be shown to be in accordance with law. No question arose over that. It must then be shown that the interference was in pursuit of a legitimate aim, i.e. one of the interests listed in Article 8(2). Thirdly, it must be shown that the interference was necessary in a democratic society in pursuit of that legitimate aim; for that there must be shown to be a pressing social need proportionate to the legitimate aim pursued. That that was the correct approach was clearly illustrated in Berrehab particularly at pages 329-331. The petitioner's contention was that the respondent had failed to have any regard to the two issues of whether this particular interference with his right to respect for family life was in respect of any of the legitimate interests set out in Article 8(2) or reasonably proportionate to the pursuit of that legitimate aim. One such legitimate aim was maintenance of firm immigration control in the interests of the economic well-being of the country. The respondent's decision letter disclosed that the sole test he had applied was one of "compelling compassionate circumstances" and he had applied that on the basis that it was for the petitioner to overcome some presumption in favour of his removal. He had also by his reference to the possibility of the correct entry clearance being obtained erroneously proceeded on the basis that there was some prospect that the petitioner could obtain readmission to the United Kingdom to exercise his right of contact with his son. The letter of 28 September 1998 was the sole document to which reference should be made to understand and explain the respondent's approach. He was then dealing with a situation entirely different from either of the petitioner's earlier applications for leave to remain since they were made in the context of a family unit which could continue family life either in the United Kingdom or India. The situation on breakdown of the marriage was entirely different since there was no longer any question of the petitioner's wife moving to India; so there was no prospect of contact between the petitioner and his son continuing there. It was also unrealistic to imagine that he would be able to do so by visiting the United Kingdom since there was no evidence that he had any significant assets.

In response Mr Lindsay for the respondent submitted that the letter of 28 September 1988 was simply the final piece of a chain of correspondence showing how on three occasions the petitioner's evolving domestic situation had been considered by the respondent each time an application for leave to remain was presented. It was clear from the letter of 6 July 1998 that the respondent had taken full account of the terms of Article 8. That letter was referred to in the letter of 28 September 1998. It was plain that Article 8 had been taken into account, not only in reading the decision challenged, but also in arriving at the policy to refuse leave to remain in the United Kingdom to the spouse of a citizen where the spouse entered the country illegally and married when he knew that his application for political asylum had been refused and he was to be removed from the country. That policy recognised the requirement of Article 8 that the refusal of leave should be justified as necessary in a democratic society in the interests of one of the legitimate aims set out in Article 8(2). That aim was stated to be the maintaining of a firm immigration control which fell within the "interests of the economic well-being of the country". In addition it was plain from the letter of 6 July 1998 that the respondent had considered the particular circumstances of the petitioner in the light of the policy and Article 8 and had decided that the interference with his family life was fully justified as necessary in the wider public interest of maintaining a firm immigration control. The letter made it clear that the petitioner's marriage and the birth of his child had been taken into account but had been given little weight. It was Mr Lindsay's submission that the letter of 28 September 1998 should be read against that background and also in the light of the petitioner's letter of application. What that letter presented to the respondent was a statement of a change of circumstances involving his separation from his wife and child and his assertion of his wish to exercise his right to enjoy contact with his son which he had instructed the solicitor to establish. The respondent was presented with circumstances in which he was entitled to regard the petitioner as having no better claim to leave to remain than before. Indeed his position was weaker in that he was no longer cohabiting with either wife or son. Against that background the respondent was entitled to determine the issue against the overall background of the previous applications. By referring to the previous correspondence he demonstrated that he had considered Article 8 entirely appropriately in the context of the petitioner's case.

In my opinion the petitioner has failed to establish that the respondent acted unreasonably by failing to take account of Article 8 of the Convention in an appropriate way. Of all the authorities cited I found most assistance in the judgment of Letham J. in R. v Secretary of State for Home Department ex parte Zighem. The applicant there was an Algerian citizen whom the Secretary of State had decided to remove to Algeria as an illegal immigrant. During a previous visit, when he became an overstayer, he had had a relationship with a British citizen and a daughter was born. The mother became mentally ill, the child was made a ward of court and the applicant had limited access to the child. In refusing his application for leave to remain the Home Secretary initially made no reference to Article 8. When that was pointed out to him he simply asserted that he remained firmly of the opinion that the removal of the applicant did not constitute a breach thereof. Having decided that that assertion did not indicate how the Home Secretary had approached the issue of Article 8 and its relevance, and that in any event he had erroneously had regard to rule 246 of the Immigration Rules which did not apply to parents who were not married, he then gave an example of the sort of decision that the court would not interfere with at page 199 in these terms:

That is how the respondent dealt with the application in the present case. The respondent was entitled, in my opinion, to consider the latest application for leave to remain against the background of the earlier ones and the decisions made thereon. The petitioner presented material indicating the breakdown of the marriage, his separation from his child and his efforts to secure contact with the child. The respondent assumed in his favour that he would be able if he remained in the United Kingdom to enjoy regular contact with his child. In my opinion the statement in the letter of 28 September 1998, "Inadvertently, Mr Singh's marriage has broken but wishes to remain in the United Kingdom to enjoy regular contact with his child", is not simply a reflection of the wish and intention of the petitioner, but indicates an acceptance by the respondent that the aim of securing contact was genuine and that interference with that contact would be a consequence of refusing the petitioner's application. That that interference was being weighed against the need to maintain firm immigration control in the interests of the economic well-being of the country is clear from the reference to "our previous correspondence" and the reference to others in similar situations who have to obtain correct entry clearance to come to the United Kingdom. That was not in my opinion an erroneous and misconceived reference by the respondent to the possibility of the petitioner applying in terms of rule 246 to return to see his son but plainly a reference to the very legitimate aim which the respondent considered justified his interference with the petitioner's right to respect for his family life, namely the orderly control of immigration in accordance with rules which allow entry to those who qualify and comply with the rules. Having accurately identified the issues to be considered, it was for the respondent to weigh the degree of interference with the petitioner's aim to maintain contact with his son against the legitimate aim of securing the economic well-being of the country in accordance with the right of the United Kingdom to control the entry, residence and expulsion of aliens. No circumstances have been identified in relation to the respondent's duty to have regard to Article 8 in the present case to entitle me to interfere with his decision that refusal of leave to remain was justified.

While the argument in relation to Article 6 can conveniently be dealt with separately from that in relation to Article 8, the two are linked by the terms of the petitioner's solicitor's letter of 21 August 1998 intimating that court proceedings were to be taken to establish contact with the child. It was not in dispute that what the petitioner sought to do was assert a civil right and that he was entitled in terms of Article 6(1) to a fair and public hearing within a reasonable time of that issue in court. It was also not in dispute that a contravention of Article 6(1) might arise not only because of a legal impediment to such a hearing but also from any physical impediment thereto, that is some hindrance in fact preventing the exercise of the right to a fair and public hearing. These propositions were vouched by reference to Golder v United Kingdom (1975) 1 EHRR 524, Stanford v United Kingdom, [1994] T.L.R. 130, Raymond v Honey [1983] 1 AC 1, R. v Lord Chancellor ex parte Witham [1998] QB 575. In addition, under reference to Dombo Beheer B.V. v The Netherlands (1993) 18 E.H.R.R. 213, the petitioner submitted that the principle of "equality of arms" which was a feature of the right to a fair hearing by an independent and impartial tribunal applied to the proposed litigation between him and his wife in relation to contact. On the strength of these various propositions he submitted that the petitioner could not obtain a fair and public hearing in court of his case for contact if his application was refused and he was removed from the country. Following upon the refusal of leave to remain in September 1998 it had emerged that the petitioner's conduct of litigation was likely to be materially handicapped if he was required to go to India. He proposed raising an action for divorce for which he was only now about to apply for legal aid. He was unlikely to get legal aid if he was in India. The respondent would not admit him to the United Kingdom to conduct litigation. He was unlikely to obtain an order for contact if he were unable to exercise regular contact. Averments of these and other difficulties were added by adjustment in November 1998. On the day of this first hearing an inventory was tendered including an affidavit in support of these contentions with a letter from an English solicitor stating that in his experience of acting in the Bradford area for clients from the Asian sub-continent for over twenty years he had never known of a case being successfully pursued by a father living in the Asian sub-continent whilst his child was in England. Mr Bovey submitted finally that by refusing the petitioner's application so that he would be removed from the United Kingdom the respondent had effectively prevented him from obtaining a fair hearing of his claim for contact before an impartial tribunal.

Mr Lindsay's response was short and simple. The petitioner did not place before the respondent the material set out in the adjustments and in the affidavit letter and accompanying documents. The terms of the petitioner's application so far as relevant are set out earlier in this Opinion. The respondent could only be expected to decide the application which was presented to him. Unless an applicant told the decision maker all the relevant facts, he could not complain if he did not get the decision he wanted. Mr Lindsay contended that it was illegitimate for the petitioner to try to turn what was at the time it was made a legitimate decision retrospectively into an illegitimate one on the basis of material coming to light afterwards. If the petitioner wished the respondent to consider these factors, then he should and still could submitted a fresh application citing them.

In my opinion it is a complete answer to the petitioner's contention in respect of Article 6 that he did not indicate to the respondent any of the features which he now claims render his removal from the United Kingdom an effective barrier to the securing of his right to a fair hearing before an impartial tribunal. For reasons which I have already given, I consider that the respondent proceeded on the basis that the petitioner's claim to contact was a good one and that he would genuinely exercise his right of contact. There is not a hint in the petitioner's solicitor's letter applying for leave of the difficulties which it is now said stand in the way of his claim. The respondent had no reason to anticipate that contact would not be established either by agreement between the petitioner and his wife or by early determination of his claim in court. The respondent had also no reason to think that the petitioner had done otherwise than fully instruct solicitors on his case which is of a type often decided on the strength of ex parte submissions. Surprisingly the affidavit of 21 October 1999 sets out a catalogue of events covering a period in excess of a year during which there are long periods when nothing is recorded as happening in connection with the petitioner's claim for contact.. In my opinion the respondent should not be expected to have speculated about how the petitioner's claim for contact might proceed, bearing in mind that the affidavit discloses that at various stages proposals for contact have been made, that, in the words of Mr Bovey, it was "not practicable for the petitioner to accept these in view of his poor relationship with his wife's family", and that over the period of over a year since the respondent's decision was made there have been long periods of apparent inactivity on the part of the petitioner. Indeed at the outset of the hearing the most up-to-date information available was confused. I was initially advised that the petitioner was about to apply for legal aid to raise divorce proceedings in Glasgow, including an application for a residence order, and that there would be separate proceedings in the course of this month in Huddersfield in respect of contact. I was also advised that on 4 October 1999 the petitioner had had contact with his son by informal agreement with his wife. Later in his submission Mr Bovey clarified the position and explained that the divorce action to be raised in Glasgow would not include a crave for a residence order, but legal aid had been applied for in England for a claim to be made for a residence order which would include the lesser possibility of contact; that application had been refused; the petitioner's solicitors had then advised him that he should seek contact alone with a view to building up a relationship with the child and apply for a residence order thereafter. In my opinion the respondent cannot be faulted for failing to take account of later emerging difficulties in the petitioner's claim for contact (or indeed residence). What is plain from the letter of 28 September 1998 is that he recognised the petitioner's right to contact with his child and his genuine intention to maintain that right. He accordingly cannot be said to have acted unreasonably by failing to take account of the petitioner's right to a fair hearing before an independent tribunal in Article 6. Nor can he be said to have acted unreasonably by making a decision which would effectively prevent him from exercise his right to obtain a fair hearing before an impartial tribunal when the difficulties which are said to have since beset his attempt to exercise his right were no part of the application the respondent had to decide.

I shall accordingly repel the fourth, fifth and sixth pleas-in-law for the petitioner, sustain the third plea-in-law for the respondent and refuse the prayer of the petition.