Scottish Court of Session Decisions

[1] This petition is brought in order to challenge the validity of a decision of a chief immigration officer ["the CIO"] dated 23 July 1998 to refuse the petitioner leave to enter the United Kingdom on the basis of his marriage to Afshan Nasir Ahmed, a UK citizen whom he married on 25 February 1996. The respondent is the Secretary of State for the Home Department, on whose behalf the decision of the CIO was taken.

[2] The petitioner is a national of the Republic of Pakistan. From the materials available to me his immigration history appears to be as follows. The petitioner arrived in the United Kingdom on 4 January 1991 and sought leave to enter as a business visitor. He was given temporary admission pending consideration of that application but leave to enter was refused on 6 January 1991. An appeal was taken against that refusal but that appeal was in due course dismissed on 18 June 1991. Meantime, in February 1991, the petitioner had submitted an application for political asylum. His request for political asylum was refused on 21 April 1995. The petitioner appealed against that refusal. While that appeal was current, he contracted marriage to his spouse, Afshan Nazir Ahmed, and on 18 April 1996 applied by letter for leave to enter the United Kingdom on account of his marriage. That application was refused on 23 June 1996. On 22 November 1996 the Special Adjudicator refused the petitioner's appeal respecting his application for asylum and on 10 December 1996 the Immigration Appeal Tribunal refused to grant him leave to appeal against the decision of the Special Adjudicator.

[3] It appears that thereafter, in January 1997, removal directions were served upon the petitioner. He consulted the Member of Parliament for the constituency in which he then lived (Mr Alistair Darling, M.P.) who wrote to the then Home Secretary on 24 January 1997 seeking deferral of the execution of the removal directions to enable further representations to be made. In that letter, having referred to certain matters concerning the application for asylum, Mr Darling wrote -

By letter of 18 February 1997 the Parliamentary Under-Secretary of State at the Home Office replied to Mr Darling. Having narrated the circumstances of the application for asylum, the Under-Secretary's letter continued thus:

Mr Darling in turn replied to the Under-Secretary by letter of 28 February 1997 in which, having chiefly addressed the asylum aspects, he enclosed a letter from the petitioner's wife. The enclosed letter extended over some three pages and set out in some detail the family circumstances and what Mrs Ahmed saw as the practical consequences for her and her two daughters by her previous marriage were the petitioner to have to return to Pakistan. The Under-Secretary responded by letter of 25 March 1997 in which he stated that he had passed the letter from Mrs Ahmed to the Immigration and Nationality Directorate. He also invited Mr Darling or the petitioner's representatives to present any further information to the Immigration Office at Edinburgh Airport.

[4] On 17 June 1997 fresh removal directions were issued and very shortly thereafter the petitioner presented a petition - "the 1997 petition" - seeking judicial review of both the refusal of leave to enter on account of his marriage and also the decisions of the Special Adjudicator and the Immigration Appeal Tribunal respecting his claim for asylum. Prior to the first hearing of the 1997 petition on 28 April 1998 the Secretary of State agreed to look again at the decision refusing leave to remain on account of the marriage and to consider any further representations which those acting for the petitioner might choose to make to him. In relation to the asylum claim, a separate application was made for legal aid to pursue an appeal to the court under section 9 of the Asylum and Immigration Act 1996 and that matter remains outstanding.

[5] Following the agreement of the Secretary of State to look again at the refusal of leave to enter on account of marriage, the petitioner and his wife attended for further interview by an immigration officer at Edinburgh Airport on 15 July 1998, the notes of those interviews being No.7/2 of process. Thereafter on 23 July 1998 the CIO wrote to the petitioner declining to reverse the decision refusing leave. The decision communicated in the letter of 23 July 1998 (No.7/3 of process) is the decision against which this petition is directed. The letter is in these terms:

In seeking to impugn the validity of the decision communicated by the CIO in that letter counsel for the petitioner, Mr Sutherland, put forward a number of submissions.

[6] The first of these, as I understood it, was directed towards the nature of the exercise said by counsel to have been carried out by the CIO. According to counsel the CIO had merely looked to see whether the previous decision was legitimate. He had not looked at the whole matter afresh, which, said counsel, was what he required to do. He had in effect carried out a "judicial review exercise". This was particularly apparent from the three opening sentences of the second paragraph of the letter, the last of which stated, - "I have looked at the papers again and I think that this conclusion was right."

[7] The second submission put forward by Mr Sutherland was that in reaching his decision the CIO had failed to apply the proper tests in respect that he had omitted to investigate and consider whether there might exist particular compelling and compassionate circumstances. As I understood counsel, the particular compelling circumstances were those set out in the 1997 petition which, in summary, were - (a) the marriage was genuine and subsisting; (b) the petitioner's wife had two children by her previous marriage; (c) if the petitioner's wife were to follow him to Pakistan there was a risk that her former husband might seek and obtain custody of the children in the Pakistani courts; (d) the children, and the wife, would have difficulty in settling in Pakistan. There was no discussion in the letter of these particular factors. In the light of such matters the removal of the petitioner to Pakistan would deprive him, his wife and her children of the right to family life in breach of Article 8 of the European Convention on Human Rights. No mention was made in the letter of the Convention or Article 8 which had been the subject of reference in the 1997 petition. The letter thus did not address in its terms the matters raised in the 1997 petition. If the CIO had considered Article 8, one did not know whether or how he had carried out the balancing exercise envisaged in Article 8(2).

[8] As a third submission, counsel for the petitioner went on to submit that the letter of 23 June 1998 thus did not contain a sufficient statement of reasons. The test for sufficiency of reasoning was, he said, that set out in Wordie Property Co Ltd v Secretary of State for Scotland 1984 S.L.T. 345. The letter from the CIO did not achieve the requirement of not leaving the informed reader in any real and substantial doubt as to the reasons for the decision or the material considerations taken into account in reaching it. The decision accordingly fell to be quashed for lack of a sufficient statement of the reasons upon which it was based.

[9] Counsel for the petitioner further referred to the fact that while no mention was made of Article 8 in the letter of the CIO the answers to the present petition lodged on behalf of the respondent Secretary of State contained a statement that the CIO "took into account the United Kingdom's obligations under the European Convention on Human Rights Article 8". In view of this averment counsel suggested that it would be appropriate for the CIO to be adduced as a witness to be examined, and cross-examined, as to the reasoning which he had followed regarding Article 8, which was not included in his decision letter. If, as was averred, the CIO had in fact considered Article 8, it was open to the court to look at the substance of his decision to see whether he had correctly understood, interpreted and applied the Convention. In that regard counsel referred to R v Director of Public Prosecutions ex parte Kebilene and Others [1999] 3 WLR 972 for the purpose of citing a passage in the speech of Lord Steyn wherein his Lordship quoted with approval an observation by Lord Hope of Craighead in R v Secretary of State for the Home Department ex parte Launder [1997] 1 WLR 839, 867. The observation quoted, and the succeeding sentence, were in these terms:

In the unreported decision of R v Secretary of State for the Home Department ex parte Ali (28 October 1999) - a case in which the Secretary of State had stated in his decision that he considered his refusal of the application for leave not to constitute a breach of the Convention - Collins J had stated that the observation of Lord Hope was not confined to deportation or extradition cases and had gone on to consider Article 8 and how it had been taken into account in the decision in that case. In the present case, however, nothing had been said about the ability of the petitioner's wife and her children to go to Pakistan, or of the risk of her former husband seeking custody of the children were she to do so. It was unclear whether the issue of proportionality under Article 8(2) had been considered. It was therefore unclear whether there were grounds for challenging the reasoning of the CIO respecting Article 8.

[10] In a final, essentially unrelated, criticism of the CIO's decision, counsel for the petitioner focused on the sentence in the letter of 23 July 1998 which reads -

In the first place, although it was accepted that the application for leave was made outwith the Immigration Rules, the terms of the Rules were relevant to what was meant by "public funds". Paragraph 6 of the Immigration Rules define "public funds" as including "income-based jobseeker's allowance under the Jobseeker's Act 1995". That statute provided for two kinds of jobseeker's allowance, namely "income-based" and "contribution-based" jobseeker's allowance respectively - see section 1(4) of the 1995 Act. Counsel submitted that it might possibly be that the petitioner was in receipt of contribution-based jobseeker's allowance and not income-based jobseeker's allowance and the CIO had not distinguished between the two. In the second place, however, the petitioner's wife, not being in employment, was entitled to housing benefit and jobseeker's allowance in her own right. Notwithstanding the apparent terms of the Immigration Rules, the Immigration and Nationality Department had made a concession to the effect that it was not an objection in itself that the settled spouse was in receipt of public funds in his or her own right, and the question was whether the presence of an applicant in the UK would create an additional entitlement or recourse to public funds. (Various letters setting out the "public funds concession" were printed in Butterworth's Immigration Law Service, p.D165). Accordingly, said counsel, the CIO had not addressed the correct issue whether the petitioner's continuing in the United Kingdom would give rise to a claim on public funds additional to those received by the wife. In support of this aspect, counsel further referred to the unreported decision of Ali.

[11] In her response Mrs Stacey, who appeared on behalf of the respondent, addressed first the public funds point with which counsel for the petitioner had concluded his submissions. She observed at the outset that since the application for leave was made outwith the Immigration Rules, within whose terms the petitioner could not bring himself, the issue of funds also fell to be looked at outwith the Rules. In any event, although the Immigration Rules distinguished income-based jobseeker's allowance as part of "public funds" it was not averred or stated on behalf of the petitioner that the jobseeker's allowance which he was receiving was in actual fact contribution-based jobseeker's allowance. On the second aspect of the public funds issue, counsel for the respondent submitted that at interview the Immigration Officer was fully entitled to enquire as to the whole family circumstances and the income and resources of both spouses. The information that the wife was dependant on housing benefit and jobseeker's allowance was an element in concluding that without employment on his own the petitioner required to receive funding from the State in the shape of jobseeker's allowance. At all events, the financial circumstances of both the petitioner and his wife were part of the whole circumstances and it was the whole circumstances to which the Chief Immigration Officer had regard.

[12] Having reviewed the petitioner's immigration history, counsel for the respondent stressed that at the time of his marriage the petitioner's application for leave to enter and for asylum had both been refused and he had no lawful basis for his presence within the United Kingdom. He had no entry clearance required by the Immigration Rules and his application was thus outwith the Rules. Applications made outside the rules are considered but only granted in exceptional circumstances, as an exercise of discretion, only if there were sufficiently compelling, compassionate circumstances. Such circumstances had not been present in the petitioner's case.

[13] Following presentation of the 1997 petition, the Secretary of State had agreed to look at the case again. It did not, however, follow that the officer looking at it again was to ignore the existence of the earlier decisions and the earlier correspondence. He needed to look at the whole file and the up-to-date circumstances and consider whether, seen on its merits, the decision not to grant leave were right or wrong. By July 1998 the CIO knew of the terms of the 1997 petition and had the fresh interviews of the petitioner and his wife. However, the test which the CIO had to apply remained that of whether the compassionate circumstances put forward were sufficiently compelling to warrant an exercise of discretion in the petitioner's favour. The circumstances had to be particularly compelling before an applicant, such as the petitioner, might be permitted to "jump the queue". What the CIO had recorded in his letter was effectively that there had been no real alteration in the petitioner's circumstances, at least in the direction of being more favourable to his application, and that those compassionate circumstances remained insufficiently compelling to justify the exercise of discretion in his favour. It was indeed the case that the petitioner's circumstances had not altered materially in his favour. The CIO had accordingly not adopted a wrong approach or applied a wrong test.

[14] In relation to the criticism of the adequacy of the statement of reasons given in the letter, counsel for the respondent submitted that the letter of 23 July 1998 had to be read in the context of, among other things, the previous correspondence. In the unreported case of Harinder Singh (11 November 1999) Lord Bonomy had also treated the final decision letter in that case as part of the chain of letters. Although the letter of 23 July 1998 was perhaps not the best of letters, it referred back to the letter of 18 February 1997, wherein the need for exceptional and compelling circumstances was stated and it made plain that the petitioner's circumstances had been considered again; that they had not altered materially; and that they remained insufficiently compelling. The basis for the decision was accordingly explained and seen in the context of previous correspondence, particularly the letter of 18 February to which it referred, the informed reader could be left in no significant doubt as to the terms of the decision and the basis upon which it was reached.

[15] Counsel for the respondent accepted that no mention was made in the letter of Article 8 or of the European Convention on Human Rights. She opposed the suggestion that the author of the letter of 23 July be called as a witness to be examined with a view to supplementing the terms of the letter. Where the adequacy of a statement of reasons was in issue, as regards the validity of the decision, the decision-taker generally had to stand or fall by the terms of the decision which he had issued.

[16] That said, according to counsel the inclusion in the answers of an averment that the CIO had in fact had regard to the United Kingdom's obligations under the Convention could hardly come as a surprise, given the many decisions in which the Home Office had stated that regard was had to the Convention. However, treating that averment as a statement by the decision-taker that Article 8 had been taken into account which in light of the observation in Launder might enable the court to consider the substance of the Convention argument, the test still remained one of whether the ultimate decision was invalid by reason of irrationality. The petitioner really required to aver that no decision-maker having regard to Article 8 could reasonably reach the decision taken by the CIO in this case. No such averment, or submission, had been made. That, said counsel, was no doubt for good reason given, among others, the fact that the petitioner was in the United Kingdom without leave and he and his wife had married in that knowledge. It was not necessarily a breach of Article 8 for the authorities to take an immigration decision which might interfere with family life. That was plain from decisions of the European Court of Human Rights, including, in particular, Abdulaziz v United Kingdom (1985) 7 EHRR 471. It was clearly open to the decision-taker to take the view in the present case that no breach of Article 8 was involved and it accordingly could not be said that the decision was irrational on the ground that it must on any view necessarily involve a breach of Article 8.

[17] Counsel for the respondent therefore submitted that the petition should be dismissed as irrelevant.

[18] In my view, the first submission advanced by counsel for the petitioner to the effect that the CIO had simply carried out a review of the earlier decision attracts the short answer that the submission proceeds upon a misreading of the letter. As was observed by counsel for the respondent in her submissions the CIO was looking again at the case which necessarily implied looking at the file, which naturally included the earlier decisions adverse to the petitioner previously communicated to him. There is, in my opinion, nothing in the letter which suggests that the CIO has done other than satisfy himself of the continuing substantive soundness of the refusal to grant leave to enter on account of marriage rather than confining himself to considering whether the original decision was one which might properly have been reached by another officer. That the CIO has also reached the view that the earlier decision was correct does not mean that he has merely carried out a "Judicial Review" exercise. It is also plain that the CIO considered the fresh material in the form of the July 1998 interviews of the petitioner and his wife. That fact, in itself, appears to me to be destructive of counsel for the petitioner's assertion in relation to the nature of the exercise.

[19] I turn next to the second submission for the petitioner to the effect that the CIO applied the wrong test in respect that he had failed to consider the particular circumstances mentioned in the 1997 petition and had failed to have regard to Article 8 of the Convention. It appears to me that this submission proceeds effectively on the basis that because the CIO has not made specific and discrete reference to each of the particular circumstances referred to in the petition and has not mentioned Article 8, it was to be assumed that all of those averred circumstances had been overlooked. Seen in that way, this submission to a fair extent merges with the third submission to the effect that the decision taken by the CIO was not supported by a textually adequate statement of reasons because the letter did not refer specifically to those matters.

[20] In regard to these propositions I think it is important to bear in mind that the decision taken by the CIO, like that of his predecessor dealing with the case, was one taken on behalf of the Secretary of State in relation to a request that a discretion be exercised in favour of someone who could not satisfy the Immigration Rules. The CIO was not adjudicating inter partes. Yet at times the argument advanced by counsel for the petitioner appeared to assume that the CIO was vested with a quasi judicial function or task requiring him separately to consider and discuss each of the assertions contained in the 1997 petition. Insofar as the argument made such an implication I consider it to be misplaced. There is no general common law duty to provide a statement of reasons of an administrative discretionary decision though, as was pointed out by Lord Keith in R v Secretary of State for the Department of Trade and Industry ex parte Lonrho plc [1989] 1 W.L.R. 525, 539 the ".... significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker, who has given no reasons, cannot complain if the court draws the inference that he had no rational reason for his decision." In the present case the CIO could no doubt have discussed the petitioner's circumstances more extensively, but as was pointed out by counsel for the respondent the letter makes plain the writer's view that the personal circumstances of the petitioner and his wife, previously seen as not being sufficiently compelling to persuade the granting of leave, had not altered materially and that the writer too thought them insufficiently compelling to make it appropriate to grant leave as part of the exercise of the Secretary of State's discretion. Particularly when seen in the context of what had been written in the letter of 18 February 1997, the nature of the decision and the basis upon which it has been reached are evident to the reader. Even assuming that the standard indicated in Wordie for tribunals bound by statute to give reasons for their decision were also appropriate in the present context, I have come to the view that counsel for the respondent is correct in her submission that in their exposition of the decision and its basis the terms of the letter of 23 July are legally sufficient. That being so, one then moves to the issue whether the decision is in itself irrational in the Wednesbury sense. The weight and force to be attached to the petitioner's compassionate circumstances and the assessment whether they were sufficiently compelling was a matter for the respondent and his officials. Counsel for the petitioner did not advance any distinct submission that the decision was irrational in the Wednesbury sense and, while the decision presents evident difficulties for the petitioner, his spouse and her children, in light of the public interest considerations underlying the policy of the Secretary of State I do not consider that such a submission could be successfully advanced.

[21] A substantial part of the argument for the petitioner concerned the treatment - or absence of treatment - by the CIO of Article 8 of the Convention. As already mentioned, no reference is made to it in the letter of 23 July 1998. I did not understand counsel for the petitioner to submit that, in the current state of the law, Article 8 gave to the petitioner any direct right (unless perhaps the breach of Article 8 were to coincide otherwise with Wednesbury unreasonableness). In a passage referred to by counsel for the petitioner in the judgment in Ali it was said by Collins J -

In the absence of reference to Article 8 in the letter, counsel for the petitioner relied upon the averment in the answers as material, or a key, opening up what might be described as a "Launder approach" to whether the Convention had been properly applied. I am prepared to assume for present purposes that it is appropriate to make such use of that averment. But even so, it seems to me that counsel for the respondent is correct in her submission that what is involved is not merely a matter of the court looking independently at Article 8 and imposing its own decision on the Secretary of State. That would be to import the Convention directly, in advance of the coming into force of the Human Rights Act 1998. What is being reviewed in a petition for judicial review, in the current state of the law, is a decision of the Secretary of State, or an officer on his behalf, regarding the application of Article 8 and given the nature of Article 8 a petitioner would require to demonstrate that the breach claimed was sufficiently manifest that no reasonable Secretary of State could conclude otherwise. That view appears to me to be consistent with Lord Hope's observation in Launder, respecting the examination of the substance of the Convention argument, that the "ordinary principles of judicial review permit this approach because it was to the rationality and legality of the decisions and not some independent remedy that [counsel for Launder] directed his argument."

[22] It is clear from the judgment of the European Court of Human Rights in Abdulaziz that an immigration decision which may have an effect on the ability of family members to live together does not by that simple fact constitute a breach of Article 8. The wider public interest in and underlying a system of immigration control may justify a measure which affects family life and in the assessment of that justification and the degree of interference, the State authorities enjoy a wide area of discretion, one of the factors entering into such an assessment being whether the marriage was contracted when it was known that one of the spouses had no right to permanent residence in the country in question.

[23] Counsel for the petitioner did not submit that the decision under challenge could only be seen as such a plain breach of Article 8 that no contrary view could reasonably be tenable. His ultimate position was that in the absence of an exposition by the decision-taker of his thought processes concerning the application of Article 8, it was possible that he had not properly understood the law which he was applying; that one could not be entirely satisfied that it had been properly applied; and that the petitioner did not know what possible grounds might exist upon which the decision-taker's reasoning might be challenged.

[24] In these circumstances I do not consider that what was said by counsel for the petitioner regarding Article 8 of the Convention constitutes a relevant challenge to the validity of the decision of the CIO.

[25] I turn finally to the "public funds" issue, the first branch of which related to the reference by the CIO to jobseeker's allowance simpliciter without distinction being drawn between whether the jobseeker's allowance was income-based or contribution-based. In my opinion the point does not begin to have any significance unless it be the case that the petitioner was in fact receiving contribution-based jobseeker's allowance. The implication of the argument is that the CIO had proceeded on a mistaken factual basis. However, counsel for the petitioner did not make that submission. He could not go so far as to state either in averment, or at the Bar, that the petitioner was in fact receiving contribution based jobseeker's allowance. Although the matter must presumably be within the knowledge of the petitioner or his advisers, counsel only put it forward as a possibility. In my view, that is not sufficient to found a contention of mistaken fact on the part of the decision-taker. The second branch is also, I think, unsound. As counsel for the respondent pointed out, it was necessary to have knowledge of the financial circumstances of the petitioner's wife as part of the overall circumstances of the case and as a way of seeing whether the presence of the petitioner would result in additional charge upon the public funds. It is not hard to see that if the wife is without income or funds and dependent upon the State and the petitioner is also without employment, then his presence is likely to result in an additional charge upon the State. It is also to be noted that counsel for the petitioner did not suggest that granting leave to the petitioner would not in fact have resulted in any additional charge on public funds. The highest at which he put it was that the extent to which there might be an additional charge on public funds was not explored. He did not suggest that, assuming the concession to which he referred were applied, the petitioner could yet have satisfied the provisions of the Immigration Rules regarding public funds. Accordingly, even assuming in the petitioner's favour that the CIO had not appreciated the existence and content of the concession founded upon by the petitioner, it does not appear to me that awareness of the concession could have affected his conclusion.

[26] In the whole circumstances I do not consider that the petitioner has set forth any relevant basis for the reduction of the decision of the CIO of 23 July 1998 against which this petition is directed. No issue is of course taken in this petition concerning his separate claim for asylum which is subject to separate procedures of appeal or review.

[27] I must accordingly refuse this petition by upholding the first and second pleas-in-law for the respondent.