Scottish Court of Session Decisions

12 March 1999

This application for judicial review came before me for a first hearing. The petitioner seeks reduction of a decision of the Secretary of State for the Home Department ("the respondent") set out in a letter written on his behalf to the petitioner's solicitors dated 6 March 1998. The petitioner had entered the United Kingdom illegally, and had applied for leave to remain exceptionally in the United Kingdom following his marriage to a British citizen on 2 September 1994. The letter dated 6 March 1998 stated that the respondent had decided to refuse this application and to proceed with arrangements for removal of the petitioner from the United Kingdom. On 17 March 1998 notice was given to the petitioner that he was to be removed from the United Kingdom on 31 March 1998. The petitioner originally sought reduction of this notice also, but since the respondent stated that he would not proceed with removal while the petition remained before the court the notice ceased to have effect and I need not consider it further.

The facts upon which I was asked to proceed are set out in statements 5, 6 and 7 of the petition. Since these are all admitted, I shall simply quote them:

The Immigration Act 1971 provides by section 3(1) inter alia that where a person is not a British citizen he shall not enter the United Kingdom unless given leave to do so in accordance with the Act, and that he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period. Subsection (2) provides inter alia that the Secretary of State shall from time to time lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of the Act for regulating the entry into and stay in the United Kingdom of persons required by the Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances. The current Immigration Rules are contained in H.C. 395 (as amended), which came into effect on 1 October 1994 and replaced H.C. 251(as amended). In addition to the Rules, guidance is provided to officials by the Home Office. The document which is applicable in the circumstances of the present case is DP 2/93. Although this instruction was superseded and cancelled by DP 3/96, the effect of the transitional arrangements under paragraph 10 of DP 3/96 is to require the petitioner's application to be considered under the terms of DP 2/93 because his marriage came to notice on or prior to 13 March 1996. The introduction to DP 2/93 includes this paragraph:

The instruction is divided into two sections, of which section A relates to marriage policy. Paragraph 1 thereof is in these terms:

Paragraph 2 states inter alia that as a general rule deportation action or illegal entry action should not be initiated or pursued where the subject has a genuine and subsisting marriage to a person settled in the United Kingdom if (a) the marriage pre-dates enforcement action and (b) the marriage has lasted two years or more or (c) the settled spouse has lived here from an early age or it is otherwise unreasonable to expect him/her to accompany on removal or (d) one or more children of the marriage has the right of abode in the United Kingdom. Paragraph 4 states inter alia that there will be a presumption to proceed with deportation action or illegal entry action (subject to consideration of other relevant factors) in marriage cases where there are no children with the right of abode in the United Kingdom if (a) neither partner is settled in the United Kingdom or (b) the marriage is one of convenience or (c) the couple are separated. It appears that in the letter dated 10 April 1996, which set out the previous decision to remove the petitioner, it was stated, under reference to paragraph 1 of DP 2/93, that "discretion is exercised sparingly and only in cases where the marriage pre-dates enforcement action". Lord Hamilton did not issue an opinion giving the reasons for reducing this decision, but I understand that it was recognised by the respondent that this passage in the letter dated 10 April 1996 might be construed as fettering the exercise of his discretion in such cases.

When the respondent came to reconsider the petitioner's application he had available to him information about the personal circumstances of the petitioner and his wife contained in notes of interviews with them on 13 March 1997 and in letters from the petitioner's solicitors dated 29 January, 1 May, 23 June and 25 September 1997. With the last of these letters there was sent a copy of the birth certificate of a daughter who was born to the petitioner and his wife on 8 September 1997.

In the letter dated 6 March 1998 the writer reviewed the previous history and then continued:

Counsel for the petitioner submitted that the decision set out in the letter was Wednesbury unreasonable (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). Neither of the presumptions contained in paragraphs 2 and 4 of DP 2/93 applied in the present case, and accordingly there was a middle ground in which a discretion fell to be exercised under paragraph 1. In support of this approach counsel referred to the construction placed upon DP 3/96 by Lord Eassie in Abdadou v Secretary of State for the Home Department 1998 S.C. 504. Counsel went on to submit that, having regard in particular to the reference to Article 8 of the European Convention on Human Rights in the introduction to DP 2/93, account required to be taken of the provisions of that Article in the exercise of the discretion. Article 8 provides as follows:

Counsel referred to a series of decisions of the European Court of Human Rights on the effect of Article 8: Berrehab v The Netherlands (1988) 11 EHRR 322, Moustaquim v Belgium (1991) 13 E.H.R.R. 801 and Beldjoudi v France (1992) 14 EHRR 801. It is sufficient for present purposes to quote paragraph 74 of the judgment of the court in Beldjoudi:

Reference was also made to Abdadou v Secretary of State for the Home Department, supra at p. 517, where Lord Eassie expressed the view that the discretion in the formulation and application of the immigration policy of a Contracting State had to be exercised having regard to the particular circumstances of the persons concerned, balancing those particular considerations against other considerations relating to the public interest. At one point in his submissions counsel for the petitioner appeared to suggest that proportionality, in the sense recognised by the European Court of Human Rights, could be relied on in an application for judicial review in this court as a concept separate from, and additional to, that of reasonableness. Having regard, however, to what was said in R. v Secretary of State for the Home Department, ex parte Brind [1991] AC 696, counsel's submission came to be that proportionality was an aspect of reasonableness. Counsel's final position on this matter, as I understood it, was that of adopting the approach of Lord Eassie in Abdadou at p. 518. In that passage Lord Eassie held that there was a decree of overlap between proportionality and Wednesbury unreasonableness, at least in a field such as immigration control and respect for family life. Proportionality might commonly involve a balancing of opposing interests and in applying the reasonableness test courts might in fact apply a proportionality test. A decision might thus be so disproportionate as also to be unreasonable in the Wednesbury sense. If a decision failed the test of proportionality with the consequence that it was in breach of Article 8, that might well support the view that the decision was unreasonable. However, while the fact that a decision was in breach of the Convention might thus assist in a contention that it was unreasonable in the Wednesbury sense, the ultimate test must be whether the decision fell outwith the range or span of decisions open to a reasonable decision taker.

Against this background, counsel submitted that the decision in the present case was so disproportionate as to be not only in breach of Article 8 but also Wednesbury unreasonable. Counsel submitted that the personal circumstances of the petitioner's wife were such that she was unlikely to accompany him if he was removed to India and the petitioner would accordingly be separated from his wife and child. Moreover, this separation was likely to be permanent because to obtain permission to enter the United Kingdom as the husband of his wife the petitioner would require to satisfy an entry clearance officer, on the balance of probabilities, that he was able to meet the requirements set out in rule 281 of the Immigration Rules H.C. 395 (as amended). This provides inter alia that the requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse of a person present and settled in the United Kingdom are that (i) the applicant is married to a person present and settled in the United Kingdom and (ii) the parties to the marriage have met and (iii) each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting and (iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively and (v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds. Counsel submitted that, while the petitioner would be able to satisfy requirements (i) to (iii), he would not be able to satisfy requirements (iv) and (v). The petitioner and his wife lived in a local authority house, where his wife would remain if he was removed to India and to which he would return if allowed to re-enter the United Kingdom. The petitioner was employed as a chef, but if he was removed from the United Kingdom he was unlikely to be able to return to the same employment if permitted to re-enter the United Kingdom. The petitioner's wife did not work and would be in receipt of benefits during his absence, and on his return it was likely that both he and his wife would have to claim benefits. Having regard to the definition of "public funds" in rule 6, it was accordingly unlikely that requirements (iv) and (v) would be met. In these circumstances it was likely that if the petitioner was removed from the United Kingdom he would not obtain leave to enter it and he would be permanently separated from his wife and child. In any event, the process of applying to the entry clearance officer and, if necessary, any appeal against a decision of the entry clearance officer would take at least six months. When account was taken of the provisions of Article 8 and the concept of proportionality the decision set out in the letter was for these reasons so disproportionate as to be Wednesbury unreasonable, and accordingly fell to be reduced.

Counsel for the respondent submitted, under reference to the terms of the letter dated 6 March 1998, that the respondent had properly considered all matters put before him and that his decision was neither Wednesbury unreasonable nor lacking in proportionality. Counsel accepted that, having regard to the terms of the introduction to DP 2/93 and the letter, account must be taken of the provisions of Article 8 of the Convention. For the purposes of the present case the respondent was content to argue that the effect of DP 2/93 was that the respondent had promulgated a policy to which, as his stated policy, he had to have regard, and that he had to consider the applications of illegal entrants who had families in the United Kingdom and wished to stay, on their individual merits, in terms of paragraph 1 of DP 2/93. The respondent had to look at the fact of a marriage on its individual merits and have regard to it as a compassionate factor. Insofar as the decision of Lord MacLean in Ravindra Singh, Petitioner, 11 November 1997 and of Lady Cosgrove in Mohammed Irfan Ul-Haq, Petitioner, 3 December 1998 (both of which have been reclaimed) reflected a different approach by the respondent, counsel did not seek to rely on them in the present case. Counsel did not take issue with the proportionality approach of counsel for the petitioner, but submitted that proper account had been taken of this, together with all other relevant factors, by the respondent in making his decision. While the writer of the letter appeared to recognise that the petitioner's wife was likely to remain in the United Kingdom if he was removed from it, and it was recognised that there would be a consequential effect on the petitioner's family life, this was justified in the wider public interest. Compassionate circumstances required to be completely out of the ordinary, or the policy reflected in DP 2/93 would have no content. The respondent's decision taken in implement of that policy did not of itself sentence the petitioner and his wife to permanent separation. It required no more than that the petitioner be removed from the United Kingdom and apply to an entry clearance officer with a view to obtaining leave to enter the United Kingdom. It was not possible to say what the decision of the entry clearance officer would be if and when such an application came to be considered, and it was no more than speculation to discuss at this stage whether or not the requirements set out in rule 281 would be met by the petitioner. In any event, given that the petitioner's wife had been tenant of a local authority house at all material times, there would be no recourse to public funds if the petitioner returned to live with her there and accordingly it could not be said that requirement (iv) would not be met.

As can be seen from the foregoing summary, there was little, if any, disagreement between counsel as to the applicable law, and I can therefore state my own views about it quite briefly. I shall start by saying that in considering the meaning and effect to be given to the provisions of DP 2/93 I do not regard it as legitimate to refer to the later, and materially different, provisions of DP 3/96, which were considered by Lord Eassie in Abdadou. The introduction to DP 2/93 states in terms that the instruction takes into account the effect of the European Convention on Human Rights, and refers in particular to Article 8. I have no difficulty, therefore, in accepting that it is appropriate to take account of the provisions of Article 8 and of decisions of the European Court of Human Rights on its meaning and effect, and in particular the concept of proportionality, in considering the meaning and effect of DP 2/93. That being so, I am content to adopt the approach of Lord Eassie in the passage on page 518 of Abdadou which I have previously summarised. I accept also that this is a case to which neither the general rule under paragraph 2 of DP 2/93 nor the presumption under paragraph 4 is applicable, with the result that in considering it the respondent required to exercise the discretion conferred on him by paragraph 1. I note that counsel for the petitioner did not seek to argue that paragraph 1, or indeed any other provision of DP 2/93, is in itself open to criticism. This involves an acceptance that when a deportation or illegal entry case is considered on its individual merits, and a judgment requires to be reached on the weight to be attached to a marriage as a compassionate factor, it may nevertheless be decided that the marriage, and the existence of any child of it, will be outweighed by other considerations. It cannot be, and was not, disputed that these considerations include the wider public interest of maintaining fair and effective immigration controls. Nor can it be, or was it, disputed that less weight might properly be attached to the marriage of an illegal immigrant who had married after the commencement of enforcement action than that of one who had married before it. This is reflected in the contrast between paragraphs 1 and 2 of DP 2/93. Counsel for the petitioners did not seek to argue that the respondent had not taken account of all the available information in deciding how to exercise his discretion under paragraph 1, or that the respondent had taken account of any irrelevant consideration. The argument for the petitioner turned on the inferences to be drawn from that information and the weight to be given to the considerations thus arising, and amounted in effect to the assertion that the respondent had failed to recognise, from the known facts, the likelihood that if the petitioner was removed from the United Kingdom, he would be permanently separated from his wife and child. I accept that, if this was indeed the likelihood, the decision would be so disproportionate as to be unreasonable; and counsel for the respondent did not seek to suggest otherwise. But I am not persuaded that the respondent ought properly to have recognised this as being the likelihood. On a fair reading of the letter dated 6 March 1998, it appears to me that the respondent has properly identified the manner in which the discretion under paragraph 1 of DP 2/93 falls to be exercised, taking account of the provisions of Article 8 of the Convention. The writer has recognised that after removal from the United Kingdom the petitioner would require to apply for entry clearance to return to the United Kingdom lawfully as a foreign spouse, and that in the meantime it is likely that the petitioner's wife and child would remain in the United Kingdom. The letter states that there is

The petition is for these reasons, in my opinion, irrelevant, and I shall, accordingly, sustain the first plea-in-law for the respondent and dismiss the petition.