Scottish Court of Session Decisions

[1] The petitioner is a national of Nigeria who entered the United Kingdom on or about 10 January 1991. He had leave to enter the United Kingdom as a visitor for a period of six months which was extended until 23 February 1993. Thereafter he remained within the United Kingdom as an overstayer. In 1995 he was convicted of a benefits fraud and sentenced to three months imprisonment. By letter dated 16 May 1995 which was served on the petitioner when he was in prison, the respondent intimated to the petitioner that he had decided to deport him. The petitioner made an application for asylum within the United Kingdom on 30 June 1995. By letter dated 26 July 1995 the IND intimated to the petitioner that the respondent had decided to refuse the petitioner's application for asylum. The petitioner appealed the respondent's decision to a Special Adjudicator. On 22 September 1995, while he was still in prison, the petitioner married Tracey Jane McPherson whom he had met earlier in 1995 before he entered prison. The marriage was a genuine one. By determination dated 24 October 1995 the Special Adjudicator dismissed the petitioner's appeal. The petitioner sought leave to appeal the determination to the Immigration Appeal Tribunal. By determination dated 7 November 1995 the IAT refused leave to appeal. The pleadings do not make clear what thereafter was the petitioner's immigration status, although I note from Dr Brenda Robson's report of 22 September 2000 that the petitioner was released from prison on 20 December 1995.

[2] A son, Chukwuemeka Nnebeolisa Nwokoye, who is called Emeka, was born of the marriage on 17 February 1998. Thereafter, the petitioner, his wife and son lived in family at an address in Edinburgh. In her action of divorce raised in the Sheriff Court at Linlithgow the petitioner's wife avers that the parties separated in May 1998 and have not lived together since then. According to the respondent's pleadings, on 16 August 1998 the petitioner's wife contacted the Immigration Service to advise them that she had not seen the petitioner since May 1998 and that she wished to have nothing further to do with him. According to the petitioner's averments, the parties separated in October or November 1998, and from that point on the marriage broke down irretrievably. Without proof, it is impossible to determine which is the correct date. After the parties separated, the petitioner's wife took their son to live with her. By letter dated 24 July 1998 the IAS made an application on behalf of the petitioner for exceptional leave to remain in the United Kingdom on the basis of his marriage. In November 1998 the IND intimated to the petitioner that the respondent had decided to refuse his application for exceptional leave to remain within the United Kingdom. On 8 December 1998 the petitioner lodged a petition for judicial review. The respondent maintains that the petitioner's solicitors then withdrew from acting, and, because the petitioner failed to respond to Form 30.2 which was served upon him, the petition was dismissed on 12 January 2000. The petitioner maintains that the proceedings for judicial review became redundant as a consequence of the breakdown of the marriage, and the petition was dismissed in about March 2000. The date of the parties' separation and the date of the breakdown of the marriage, may yet have some materiality.

[3] It is, however, accepted that the petitioner last had direct contact with his son, Emeka, in March 1999. It is apparent from the pleadings in the petitioner's wife's divorce action, as well as from Dr Robson's report, that the petitioner and his wife are not in agreement about how regularly the petitioner saw his son from the time when he and his wife separated, and March 1999. In late November 1999, however, he sought contact with Emeka through Family Mediation Lothian but his wife did not respond to that organisation's approach to her. After his wife raised her action for divorce and custody, the petitioner instructed his agents to seek contact with his son which they did by letter dated 19 January 2000 sent to the petitioner's wife. No reply was received to that letter.

[4] Solicitors acting for the petitioner wrote by letter dated 10 April 2000 to the Chief Immigration Officer of the Immigration Service at Edinburgh. They intimated that another firm of solicitors had been instructed to act on behalf of the petitioner in relation to the divorce action and in relation to the Court proceedings for contact with his son. They wrote:-

They went on:-

[5] It was also maintained on behalf of the petitioner in the letter that there was a potential breach of Article 6 since the petitioner was in the process of litigation to ensure contact with his son and he had a reasonable and legitimate expectation that he would be allowed to proceed with his litigation in order to establish contact, as he required to protect his rights of contact and perform the responsibilities required of him under and in accordance with the Children (Scotland) Act 1995.

[6] This letter was responded to by a letter dated 27 April 2000 from the IND. It stated that the respondent was not satisfied that it would be right to defer arrangements to deport the petitioner. So exceptional leave to remain should not be granted. The letter went on:-

[7] It is to be noted that no reference was made in that letter to the potential breach of Article 6. Subsequent to the decision letter which is the subject of the present petition, the petitioner obtained legal aid and raised an action in the Sheriff Court at Linlithgow for contact to his son. It was in response to an interlocutor of the sheriff in that action that Dr Brenda Robson produced her report to which I have already referred. Her conclusion about contact naturally turns on whether the petitioner continues to be resident in this country or is deported.

[8] Mr Devlin who appeared for the petitioner, submitted firstly that the reasons given by the respondent in his letter of 27 April 2000 disclosed an error in law because the respondent obviously believed that there was no family life between the petitioner and his son in terms of Article 8 since there had been no direct contact between the two since March 1999. He further submitted on this branch that the respondent failed to consider whether, if there was family life, interference with the petitioner's right to respect for that family life was justified in terms of Article 8(2) of the Convention. The respondent also appeared to be asserting in the second sentence of the third paragraph of the letter that there would be no interference with family life unless family life was established when the petitioner's presence in the United Kingdom was lawful. That was wrong in law. There did not need to be cohabitation for there to be family life. Counsel then referred to Berrehab v The Netherlands 1989 11 EHRR 32, and Keegan v Ireland 1994 18 EHRR 342. Counsel drew my attention also to the decision of the ECHR sitting as a Chamber on 22 June 1999 as to the admissibility of the application by Theodora Ajayi and Others v United Kingdom. The Court in that case said (on page 9 of the transcript):-

The Court said further:-

It was, said counsel, a question of balancing considerations and the decision maker in this case had failed to do that.

[9] Counsel for the petitioner's second main submission was that the respondent had failed to have regard to all the considerations relevant to the application for exceptional leave. No mention was made in the letter of 10 April 2000 that the petitioner had applied for legal aid to defend his wife's action with regard to contact and to raise his own action for contact. That letter also made no reference to the potential breach of Article 6. The considerations relating to Article 6 and 8 were not the same. The challenge the petitioner made was not simply to the adequacy of the reasons: it was also to their validity and whether an error in law was revealed in them. Counsel referred to R v Secretary of State for the Home Department ex parte Meftah Zighem 1996 Imm.A.R.194 in which Latham, J. noted that Article 8(2) required consideration of two separate questions: the first being whether or not there had been any interference with family life, and the second being whether or not that interference was justified in terms of the Convention. He went on (at page 198):

On this submission counsel concluded that the reasons did not demonstrate a proper consideration of the factors advanced. These were relevant and important, but the respondent had, it appeared, failed to take them into account.

[10] The third central submission made on behalf of the petitioner was that the respondent's decision was unreasonable since it involved violations both of Article 6 and 8. By virtue of these violations, said counsel, there was a duty incumbent on the respondent to justify with reasons his decision and to demonstrate that those reasons were rational. Counsel referred to R v Ministry of Defence ex parte Smith 1996 1 QB 517 in which Sir Thomas Bingham, M.R. (as he then was) at page 554 approved the following formulation:-

In Abdadou v Secretary of State for the Home Department 1998 S.C.504 Lord Eassie at page 518 adopted this formulation and said:

See also R v Secretary of State for Home Department ex parte Isiko, a decision of the Court of Appeal dated 20 December 2000 per Schiemann, L.J. at para.31 to which I refer later below.

[11] Counsel submitted that in the light of these authorities the rationality of the reasons will be more carefully scrutinised, the greater is the breach of the individual's rights. It was in reality a balancing exercise in which the scales started even without any paramountcy being given to the interests of the child. (See Gangadeen & Others v The Secretary of State for the Home Department 1998 Imm.A.R.106 per Hirst, L.J. at page 119). In this case there would be insurmountable obstacles in the way of continuation of family life for the petitioner. If he were to be deported to Nigeria, family life could not be continued there since the parties' marriage had irreconcilably broken down, and it was highly unlikely that he would ever be able to return to the United Kingdom. (c.f. Poku v UK 1996 20 EHRR - Commission Supplement 94; Application of Vida McKenzie, a decision on admissibility dated 9 April 1997). Counsel maintained that the fact that proceedings for contact had been raised also weighed in the balance. These proceedings were entitled to some weight independently in determining where the balance lay. In this connection counsel referred to the unreported decision by the ECHR sitting as a Chamber in Ciliz v The Netherlands (July 2000). Counsel said that the petitioner was effectively debarred from the contact proceedings which, he conceded, were only projected when the respondent intimated his decision on 27 April 2000. Counsel also accepted that there was a public policy implication from the fact that the petitioner had been sentenced on a charge of fraud and imprisoned for three months. Nevertheless, the respondent's decision was in all the circumstances unreasonable.

[12] Finally, counsel for the petitioner maintained that Article 6 applied to the contact proceedings. The decision to deport violated three of these rights; namely, (1) the right to a fair hearing, (2) the right to equality of arms, and (3) the right to a hearing in the petitioner's presence: see X v Sweden 1959 2 Y.B.354. The petitioner could not afford to travel between Nigeria and Scotland and so he could not be present at any hearing in Linlithgow Sheriff Court. In any event, the right to equality of arms also precluded any action on the part of the State which would influence the determination of the proceedings. (See Stran Greek Refineries and Stratis Andreadis v Greece1995 19 EHRR 293). This also applied to the potential effect on rights in the future.

[13] Miss Carmichael, who appeared for the respondent, informed me that the decision to deport the petitioner was because he was an overstayer and not because he had been convicted of fraud. The deportation order was in fact served on the petitioner while he was in prison. She also told me that the previous petition for judicial review had been dismissed because the petitioner's solicitors withdrew from acting, and not because the petitioner's marriage had broken down. She also accepted that the petitioner was genuinely concerned to make contact with his son.

[14] She submitted that the decision of the respondent did not disclose an error of law or irrationality as contended for by the petitioner. In the critical paragraph of the decision letter the respondent was saying that the petitioner's removal would not breach Article 8. The extent to which family life had been disrupted was a relevant matter. The family was sought to be established when the petitioner's presence was not lawful. It was important, she said, to focus on the decision itself and not to subject it to textual analysis. She commended to me what Lord Eassie had said in Mohammed Akhtar (23 March 2000) at para.17 of his Opinion:

[15] Miss Carmichael also referred me to another judgment of Lord Eassie, namely Nisar Ahmed 2000 S.C.C.R.761. She drew a parallel between both these cases and the present case, in that the decisions in each were administrative and not quasi judicial. Rather, as Lord Eassie pointed out in both cases, they were decisions taken in response to a request that a discretion should be exercised in favour of someone who could not satisfy the immigration rules.

[16] In reaching his decision the respondent had acted in accordance with his published policy DP4/96, and in particular paragraphs 6-8. It was to be noted that the respondent's policy was not under attack: only the actual decision. Paragraph 8 provides:-

According to counsel, the respondent assessed the quality and regularity of the petitioner's access to the child in deciding how much weight should be attached to it as a compassionate factor, and he disclosed that in the letter. She submitted that the petitioner was misreading the letter. The factors taken into account were proper factors and proper factors also in relation to Article 8 since the respondent was entitled to conclude that family life had broken down. Were I to adopt Lord Eassie's approach, the decision was in satisfactory terms. The respondent did not dispute that cohabitation was not a sine qua non of family life even if someone was in the country unlawfully.

[17] Miss Carmichael also referred me to R v Secretary of State ex parte Mahmoud, a decision of the Court of Appeal dated 8 December 2000, as well as Isiko cited above. She accepted from these cases that where the Convention was directly in play, any decision by the respondent effecting human rights must, as the Master of the Rolls said in the former case at paragraph 39, be subjected to most anxious scrutiny. But the approach in R v Smith, cited above would still stand even after the introduction of the Human Rights Act. In Isiko Schiemann L.J. said in paragraph 31(2):

So substantial justification still came into play, said Miss Carmichael.

[18] Turning to the matters raised in terms of Article 8, counsel said that three particular matters were legitimately to be taken into account. The first was the proper control of immigration. The second was the fact that marriage and family relationships were entered into when immigration status was perilous. The third was the need to take proper account of the extent to which the family relationship was ruptured. The first was not disputed in this case, and in this connection Miss Carmichael reminded me of what was said in Ajahi which I have set out above. She also referred me to the case of Abdulaziz and Others v United Kingdom 1985 7 EHRR 471 where the Court said in paragraph 67 on page 497:

What was in issue in this case, said Miss Carmichael, was the petitioner's relationship with his son. She found support from the case of Vida McKenzie (cited above) and in particular the passage on page 8 of the report where the European Commission, in considering family life, emphasised that "the father of the child must be taken to have been aware of the applicant's precarious immigration status and the probable consequential effects on his relation with any children resulting from the relationship, with the application of the deportation order". In that case the Commission found that there were no elements concerning family or private life which outweighed the valid considerations relating to the proper enforcement of immigration controls.

[19] Ciliz could be distinguished on a number of material points. First, there was no history of breaches of immigration rules. Secondly, it was like Berrehab, in that the case involved a policy of the Dutch government to make it difficult for those persons to remain in the country whose marriages had broken up. The marriage had not been contracted when the immigration status was perilous. The problem only arose on divorce. All that fell to be contrasted factually with the petitioner's position in this case.

[20] So far as Article 6 was concerned, when the respondent made his decision, the proceedings were only in prospect and it had merely been stated that an application for legal aid was going to be made. I should ignore the later developments set out in the petition and I should follow the line taken by Lord Bonomy in Harinder Singh (23 February 2001 unreported). In contrast with the case of R v Immigration Officer ex parte John Quaquah 2000 INLR 196 in which the Secretary of State was himself a party to the civil litigation which the applicant raised, this was a case in which there was a much stronger argument for the maintenance of immigration policy and control. That, in this case, was a compelling countervailing circumstance. Besides, while the contact proceedings related to family life, one could readily get into a circular position - the petitioner could remain in this country to pursue the contact proceedings, but the sheriff would not determine the question of contact, following Dr Robson's report, until the petitioner's immigration status was determined. A decision required to be made at some point.

[21] The first thing I wish to say about the decision letter of 27 April 2000 is that the decision is very cryptically expressed. The question, however, is whether it requires to be stated more fully. The thrust of Mr Devlin's submissions was that it did. According to him, it had to be apparent on the face of the letter which considerations the respondent took into account. I do not consider that that is well founded. What the respondent is doing is announcing his decision refusing to exercise his residual discretion in favour of the petitioner who, it is accepted, cannot satisfy the immigration rules. I agree with Lord Eassie that in such cases one is involved essentially with the decision itself rather than a textual examination of the letter communicating that decision. (See both Mohammed Akhtar and Nisar Ahmed cited above). A good illustration of what in my opinion should not be done, is to be found in the emphasis which Mr Devlin wished to place on the word "therefore" in the third paragraph of the decision letter. The petitioner's predicament, it seems to me, must be seen in the context of a marriage which was contracted after a deportation order was served on him. I say "predicament" because the effect of the respondent's enforcement of the deportation order is for all practical purposes to bring an end to any contact the petitioner might have with his son, so long as he remains a child and cannot travel himself to Nigeria. It does not, however, follow from that that the petitioner's human rights in terms of Article 8 have necessarily been violated. As it was expressed by Sedley, J. in R v Secretary of State for the Home Department ex parte Balwant Singh 1997 Imm.A.R.331 at 334 which Miss Carmichael cited to me:

[22] What the respondent is saying in his decision letter, as I see it, is that he has reviewed the petitioner's case in the light of all the circumstances known to him. The information he had in April 2000 indicated that family life had been ruptured. As a family unit the petitioner and his wife had not lived together with their son since at least October or November 1998 when the petitioner and his wife separated. The petitioner had not seen his son since March 1999. All that was correct. Indeed, it would appear that after March 1999 the petitioner had made little effort to see his son until November 1999 when he contacted Family Mediation Lothian. In all the circumstances it cannot, in my opinion be said, that, thus far, the respondent's approach was unreasonable or factually in error. That was the state of family life, although, according to his solicitor's letter of 10 April 2000, the petitioner was later in this period anxious to make contact with his son.

[23] The next sentence in the decision letter is not, in my view, very happily expressed. But against the background of the authorities which counsel advanced before me - and in particular Ama Poku, Vida McKenzie and Theodora Ajahi - it is possible to see what the decision maker meant. As I understand it, what the respondent was seeking to do was to enforce the immigration policy in DP4/96. I appreciate that that was not said in terms, but I do not consider that it has to be spelled out, any more than the counterbalancing considerations need to be expressed either. In this connection I remind myself of what the ECHR said, generally, in Theodora Ajahi on page 9 which I have quoted earlier in this Opinion. What in reality the respondent is saying is that, against a background of the requirements of Article 8, this is not such an exceptional case that removal would constitute a violation of the Article, because from the outset the persistence of the marriage within the host State was going to be precarious since family life began when one of the spouses was subject to a deportation order. The respondent is not saying that there was no family life between the petitioner and his son. What I think he is referring to is the quality of that life in determining how he should exercise his discretion. That is what he is enjoined to do in terms of DP4/96 paras.6-8.

[24] So far as the alleged violation of Article 6 is concerned, it is in my view unfortunate that the decision letter made no mention of that. What can, however, be said is that, when the respondent made his decision, no proceedings for contact had been raised by the petitioner, his solicitors having said in their letter only that there was a current application with the SLAB in relation to such proceedings. That, of course, is the short answer to the petitioner's case of alleged violation of Article 6. What does, however, concern me about this part of the petitioner's case is what Miss Carmichael alluded to at the end of her submissions. It would appear that the only way in which the petitioner could succeed in obtaining some award of contact to his son would be if the respondent granted him exceptional leave to remain in this country. Given the terms of Dr Robson's report it seems to me very unlikely the sheriff at Linlithgow would grant any award of contact in favour of the petitioner unless he was assured that the petitioner's immigration status had been resolved by a decision in his favour. Even without Dr Robson's report, it must be highly doubtful if the sheriff would make an order allowing contact in favour of a parent who is subject to a deportation order which was about to be enforced. So, in my opinion, there is a logical and practical problem here which transcends considerations of Article 6. If the petitioner's argument is correct, the position would ultimately be reached that the respondent would be bound to grant special leave to remain in this country in favour of any litigant in proceedings for contact which could not satisfactorily be conducted from outside this country, if the respondent was not to violate the litigant's Article 6 rights. I do not believe that that is correct in principle or even in result.

[25] Unlike Latham, J. in R v Secretary of State for the Home Department ex parte Meftah Zighem (cited above), I do not find it difficult to understand what the decision maker's reasons were for refusing the request for exceptional leave to remain in this country, albeit they are somewhat cryptically expressed in his letter. Similarly, to apply the language used in R v Ministry of Defence ex parte Smith 1996 1 Q.B. 517 at p.554, I do not consider that the decision was unreasonable in the sense that it was beyond the range of responses open to a reasonable decision maker who had to reach a decision in the circumstances of the present case. The problem in this case, as I see it, has been caused by the fact that the respondent did not express his decision more fully, with the result that it has been misread and misunderstood. I appreciate that the petitioner's human rights are "engaged", as Schiemann, L.J. put it in Isiko (cited above), and I appreciate also that the respondent must demonstrate that, if his proposed action conveyed in the decision interferes with these rights, he has to provide substantial justification for such interference. I am not, however, sure that I would go so far as to say that any such decision must be subjected to "anxious scrutiny". At the same time it has to be accepted that the signatories of the Convention and its Protocols enjoy a wide margin of appreciation, as was said in Abdulaziz and Others v United Kingdom (cited above), "in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals." Properly read, in my opinion, the respondent's decision letter applies all the relevant considerations to the petitioner's circumstances as they were known to the respondent at the end of April 2000, set against the needs and resources of the community, including factors of immigration control.

[26] For all the foregoing reasons I do not accept that the respondent's decision of 27 April was unreasonable et separatim unlawful et separatim illegal as is averred in Articles 10-13 of the petition on the grounds that it violates Article 6 or 8 of the European Convention on Human Rights. I will therefore uphold the third plea-in-law for the respondent and dismiss the petition.