Scottish Court of Session Decisions

The petitioner is a citizen of India who was born on 5 March 1955. On 2 July 1989 he was given leave to enter the United Kingdom for a period of six months. According to Mr Bowen who appeared for the petitioner, on 21 December 1989 the petitioner came to this country and applied for political asylum. That application was refused. The petitioner, having appealed unsuccessfully against that decision, was made the subject of a deportation order dated 5 March 1996. On 28 March 1996 he married S.M. in Glasgow. He had known her for about two years before the marriage. She is a United Kingdom citizen and is the mother of two children, M. who was born on 13 May 1983 and G. who was born on 17 July 1992. They, too, are citizens of the United Kingdom and are the children of a relationship which the petitioner's wife had with one N.S. The petitioner, following his marriage, sought leave to remain in the United Kingdom as the spouse of S.M. by an application made on his behalf dated 16 April 1996 and sent by an immigration and nationality consultant, David Williams. With that application were enclosed the parties' marriage certificate, a letter of support from the petitioner's wife, and photographs. On 24 July 1996 the deportation order of 5 March 1996 was served on the petitioner.

Between 16 April 1996 and August 1996 the petitioner changed his representation from Mr Williams to Mr Dilip Deb who is a solicitor who practises in Glasgow. On the petitioner's behalf Mr Deb wrote two letters, both addressed to the immigration officer at Abbotsinch, Paisley. In these letters Mr Deb set out a series of what he referred to as "further mitigating circumstances" in order that the decision to deport the petitioner might be reconsidered. The first of these letters is dated 13 August 1996. In that letter Mr Deb referred first to the circumstances affecting the petitioner's step children. He referred to them as being "of white race" who were in attendance at local Glasgow education establishments and whose relatives lived in Glasgow. He said:

The petitioner had no job to return to in India. Nor was there any prospect of his wife obtaining a job. She was in full-time employment in Glasgow and was well regarded in it by her employers. The children spoke only English. They had no facility in Punjabi which was the language in which they would be taught if they went to India. If they went to India they would enter an educational and social life that would be alien to them. The children very much liked the petitioner and treated him as their parent. If the petitioner were deported, it would mean that the family would be separated.

Mr Deb wrote again on the following day. In that letter he drew attention to certain health concerns. The petitioner's wife felt that she would be unable to live in a village in India on health grounds. Her children suffered from asthma. Indeed, G. had been admitted to Yorkhill Hospital, Glasgow, after a sudden asthma attack. The climate "in India" could be injurious to their health. As for herself, she suffered when in hot conditions. She also had dietary problems in relation to food cooked in mustard oil with spices, which she understood to be how the Indian food would be cooked.

On behalf of the respondent, a representative of the Immigration Service Enforcement Director replied to Mr Deb's letters in a letter dated 25 October 1996. The writer points out in that letter that the deportation order was made since the petitioner had remained in the United Kingdom without leave since 7 April 1992, and it was only in the most exceptional circumstances that a deportation order would be revoked before the person subject to it had been abroad for at least three years. The Secretary of State did not consider the circumstances relating to the petitioner's wife and children and their rights as United Kingdom citizens were sufficiently compelling or compassionate to justify immediate revocation of the deportation order - that is, before three years had elapsed during which the petitioner was abroad.

Then what follows is a key paragraph.

What I understand to be said on behalf of the respondent in this paragraph is that the petitioner's wife knew when she married him that he was subject to deportation proceedings. She knew then that he might be deported with the result that either she would accompany him with her children to the Punjabi village whence he had come, or, for at least three years, she would remain in the United Kingdom with her children and not live in family with the petitioner. It would, presumably, be understood that if she could afford it, she would visit him in India. There is no indication that she and the petitioner in any way intended to rely upon the need to establish "most exceptional circumstances" applicable to their case in order to justify the revocation of the petitioner's deportation order.

In the penultimate paragraph the writer of the decision letter indicates that Mrs S. and the children may choose to remain in the United Kingdom or travel with the petitioner to India. The Secretary of State's view was that "the consequent interference with family life would be justified when balanced against the public interest", namely the need to maintain a firm but fair immigration control. As I read this paragraph the respondent clearly understood and considered that, in light of what was advanced in the letters of 13 and 14 August 1996, the carrying into effect of the deportation order might well result in a separation of the family - at least for a period. But given the need to maintain firm but fair immigration control, that was justified in the circumstances of this case, which included all the circumstances relating to the petitioner which were known when he and his wife married.

With that introduction I turn to consider the policy which the respondent had to apply, in light of the parties' submissions. The policy document referred to is entitled "Marriage Policy" DP 3/96. Two paragraphs in this policy document are applicable in the circumstances of this case - paragraph 7 which deals with children, and paragraph 8 which deals with marriages which post-date enforcement action. It is convenient to deal with paragraph 8 first. It provides that where a person marries after the commencement of enforcement action, removal should normally be enforced. Because of the terms of paragraph 284 of the Immigration Rules, marriage in itself cannot be considered a sufficiently compassionate factor to militate against removal. The onus is on the person seeking revocation of the enforcement action to put forward any compelling, compassionate factors that he wishes to be considered which must be supported by documentary evidence. (I pause to observe that no such evidence was made available in this case.) The paragraph concludes thus:

This, of course, was a marriage which was entered into subsequently to the enforcement action taken against the petitioner. There is no suggestion that the petitioner's wife at the time of their marriage was unaware of the enforcement action to which the pursuer had been subjected. The children fall to be considered as a consequence of the marriage. Paragraph 7 provides that their existence is a factor to be taken into account if they have a right of abode in the United Kingdom. The crucial question is whether it is reasonable for the child to accompany his or her parents abroad. In that connection factors to be considered include the age of the child. The older the child the less adaptable the child could be expected to be to live abroad. Another such factor is serious ill health for which treatment was not available in the country to which the family was going.

Mr Bowen submitted that the writer of the decision letter failed to have proper regard to the needs of the children. She had placed on behalf of the Secretary of State undue emphasis upon the fact that Mrs S. knew her husband was subject to a deportation order and therefore should have appreciated the consequences for herself and her children. There was no reference to the terms of paragraph 7. In this case one of the children was 13 and both had health problems. There was no acknowledgement in the letter that those factors had been considered. In short, it appeared that the decision-maker had failed to apply the policy set out in paragraph 7. Instead the respondent had confined his consideration to Mrs S. Mr Bowen also referred me to Abdadou v Secretary of State for the Home Department 1998 S.C. 504, but, apart from some general guidance in relation to the approach to a policy document such as DP 3/96, I did not find the case of much assistance in considering Mr Bowen's submission with regard to the children. Mr Bowen further submitted that the decision was unreasonable in the Wednesbury sense. The respondent had to consider the effect of a deportation order on the petitioner, his wife and the two children. It was clearly very difficult, if not virtually impossible, for the family all to go to India, given the circumstances set out in the two letters dated 13 and 14 August 1996. The alternative, namely the separation of the family, with the petitioner re-applying for re-entry to the United Kingdom after three years, was unreasonable because it would show lack of respect for family life.

Mrs Stacey, who appeared for the respondent, concentrated her submissions in reply upon the terms of the decision letter itself. And this I will now do, while taking account of her submissions. It is correct to observe that paragraph 7 of the policy document is not referred to in terms. Nor is paragraph 8 either. But, under reference to the letters of 13 and 14 August 1996, the decision letter records that the respondent had reconsidered the petitioner's case in light of the matters raised with regard to the children, and there is a reference to paragraph 390 of H.C. 395. It relates to an application for revocation of a deportation order and it provides as follows:

The letter then makes clear that the circumstances of Mrs S. and her children have been considered against the terms of paragraph 390 but they did not in the opinion of the respondent constitute a sufficiently compelling or compassionate factor to warrant revocation of the order. Despite an absence of any direct reference to the policy document I think Mrs Stacey is well founded when she said that it is clear from the terms of the decision letter that the position of the children was separately considered and the reference to "the most exceptional circumstances" indicates that paragraph 8 of that document was considered and applied. The respondent also considered Article 8 of the European Convention on Human Rights and the need to respect family life. He then sought to balance what is referred to as "the consequent interference with family life" if the family was physically separated, against the need to maintain a firm but fair immigration policy which, as can be seen from paragraph 390 quoted above and from R v Secretary of State for the Home Department ex parte Irfan Ahmed (1993) Imm. A.R. 210, is a legitimate factor to weigh in the balance. He faced up to the strong possibility in this case that the petitioner's wife and his step-children would elect to remain in the United Kingdom if the petitioner were deported, and he justified that outcome of his decision on the basis that, when the petitioner's wife married him, she was well aware of the possible consequences for herself and the children, namely that he would be deported and they would have the very difficult decision whether to accompany him to India or to remain in this country thereby bringing their family life to an end, at least for a period. While the interests of the children do have separately to be considered, in this case it is not possible to consider them without reference to those of their mother. She has submitted that the climate and food in Punjab would be injurious to her health. If she were deterred from travelling with the petitioner to India, so also would the children be, because they would obviously wish to remain with her. As I read the decision letter, the respondent took all this into account. Since there plainly may be cases where families are split up, that possibility by itself, as it seems to me, cannot be one of "the most exceptional circumstances". Similarly, if this is an anticipated outcome in some cases, it cannot be unreasonable in the Wednesbury sense for the respondent to reach a decision that may have this outcome. At all events, I am satisfied, as Mrs Stacey submitted, that the decision reached by the respondent in this case was within the band of reasonable decisions open to him. It is not proper for me to consider the period since the date of the decision letter, namely 25 October 1996, until the present in relation to the fact that the petitioner may be continuing to live happily with his wife and step-children. If that be the case, only the respondent can now take account of that.

In these circumstances I will sustain the second and third pleas-in-law for the respondent and dismiss the petition.