Scottish Court of Session Decisions

[1] In this petition for judicial review, the petitioner seeks reduction of a decision of the Secretary of State for the Home Department, set out in a letter written on his behalf dated 6 March 1998. By interlocutor dated 12 March 1999, the Lord Ordinary sustained the respondent's first plea in law, to the effect that the petitioner's averments being irrelevant and lacking in specification the orders sought should not be pronounced, and dismissed the petition. The petitioner reclaims.

[2] The petitioner originally entered the United Kingdom illegally, and on 1 November 1992, he was served with notice that he was an illegal entrant. That date is to be taken as the date of "enforcement action". On 2 September 1994 he married a British citizen and settled in the United Kingdom. It is not disputed that since that date this has been a genuine and subsisting marriage. Moreover, it is not disputed that the petitioner and his wife have lived together since a date approximately six months prior to their marriage. There is a child of the marriage. Following upon his marriage, the petitioner applied, on 3 October 1994, for leave to remain exceptionally in the United Kingdom.

[3] That application was purportedly refused by the respondent on 10 April 1996, but that purported refusal was reduced, and the application has accordingly been reconsidered by the respondent. The letter of 6 March 1998 intimates the respondent's decision in relation to the application. The letter is in effect a refusal of the application, although that language is not used. What is said is that it was decided to proceed with the petitioner's removal to India, it being stated that the Secretary of State "remains of the view that this is not an appropriate case in which to depart from the normal practice of removing illegal entrants from the United Kingdom." It is stated that in reaching the decision to remove the petitioner to India, the respondent has given full consideration to the United Kingdom's obligations under Article 8 of the European Convention on Human Rights, saying, however, that "he remains of the view that any disruption to family life which might occur when your client is removed, whilst regrettable, is fully justified in the wider public interest of maintaining fair and effective immigration controls."

[4] The application was considered under Home Office policy guidelines known as DP2/93. Those guidelines were superseded and cancelled by subsequent guidelines known as DP3/96, issued in March 1996, subject to certain transitional provisions, the effect of which is that in the present case DP2/93 remains applicable. In these circumstances, the terms of DP3/96 are not in point, and it is unnecessary and inappropriate for us to consider them in any detail. It was, however, pointed out that they had been in force for approximately two years before the letter of 6 March 1998 was written; and on behalf of the petitioner and reclaimer it was suggested that the author of the letter, while appreciating that the appropriate guidelines were to be found in DP2/93, had in effect applied the substantially stricter, or less liberal, guidelines to be found in DP3/96. In a situation such as this, it is no doubt possible that in applying one set of guidelines, a decision-maker's mind may be affected by a later replacement. But there is no positive indication of this having occurred in the present case, and in our opinion any question as to whether DP2/93 has been correctly interpreted and applied must be considered by comparing the terms of those guidelines with the terms of the letter of 6 March 1998, regardless of whether any misconstruction or misapplication of DP2/93 appears to reflect the provisions of the later guidelines.

[5] Paragraph 1 of DP2/93 is in the following terms:

The terms of paragraph 2 also require to be considered. The relevant provisions of that paragraph are as follows:

It is to be noted that paragraph 4 provides that there will be a "presumption" to proceed with illegal entry action in certain situations which are not here in point. And paragraph 7 deals with genuine and subsisting common-law relationships akin to marriage: where there is conclusive evidence that such a relationship exists, it should be considered as if it were a marriage. It is also to be noted that the introduction of DP2/93 notes that Article 8 of the Convention guarantees the right to respect for family life and contains the comment that "recent European Court cases have demonstrated that, however unmeritorious the applicant's immigration history, the court is strongly disposed to find a breach of Article 8 where the effect of an immigration decision is to separate an applicant from his/her spouse or child."

[6] The Lord Ordinary narrates the relevant facts in some detail. He also sets out quite fully the submissions which were made to him. For reasons which we shall mention, we do not find it necessary to consider these in any depth. Put shortly, however, the main submission made to the Lord Ordinary on behalf of the petitioner was that the decision in this case was so disproportionate as to be a breach of Article 8, and was also unreasonable (Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223). These propositions were based not merely upon the likelihood of temporary separation, because the petitioner's wife was unlikely to accompany him if he was removed, but upon the broader proposition that the separation was likely to be permanent, because it was unlikely that the petitioner would be able to meet the requirements set out in Rule 281 of the Immigration Rules, HC395 (as amended). The Lord Ordinary accepted that if the likelihood was that the petitioner would be permanently separated from his wife and child, the decision would be so disproportionate as to be unreasonable. But he says that he is not persuaded that the respondent ought properly to have recognised this as being the likelihood. He notes the statement in the letter that there is "no intention to separate the couple permanently", says that he sees no need to assume that the petitioner will not be able to satisfy an entry clearance officer that he can meet the requirements set out in Rule 281, and says that the respondent has quite properly balanced "the disruption to family life occasioned by a temporary separation" against the wider public interest. While it appears to us that the writer of the letter has perhaps proceeded upon the basis that the separation will be merely temporary, and may not have given proper weight to the risk (however great or small) that the petitioner would never obtain entry, and that the separation might be permanent, we do not find it necessary to resolve that question or discuss it further.

[7] The reason for our not going further into these matters is this. The submissions made on behalf of the petitioner and reclaimer to this court were different from those made to the Lord Ordinary. The Lord Ordinary held that the author of the decision letter had applied the policy correctly. It had been submitted to him that neither of the "presumptions" contained in paragraphs 2 and 4 of DP2/93 applied in the present case, and that accordingly there was a middle ground in which a discretion fell to be exercised under paragraph 1. The Lord Ordinary accepted that this was the position. But the Lord Ordinary goes on to say that 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." That being so, we can fully understand that the matter was dealt with as if a balancing exercise had been carried out by the respondent on the basis of proper considerations. The Lord Ordinary's conclusion that the application amounted to "little more than an invitation to the court to review the respondent's decision on its merits" is in such a context understandable.

[8] In the grounds of appeal lodged by the petitioner and reclaimer, it is contended that the Lord Ordinary erred in holding that the author of the decision letter had applied the policy correctly, or properly identified the manner in which the exercise of discretion under paragraph 1 fell to be exercised. The grounds of appeal contain the following passage:

While there was some suggestion that a submission on these lines had, in some form, been before the Lord Ordinary, it does not appear that this can have been at all clear, having regard to what the Lord Ordinary says. At all events, it was not suggested on behalf of the respondent that we should refuse to consider the issues which were thus raised in the grounds of appeal, and we are satisfied that these grounds, and the submissions made on behalf of the petitioner and reclaimer in support of them, represent the true issue which requires determination.

[9] In the letter of 6 March 1998, the writer refers to the earlier letter of 10 April 1996, saying that the petitioner's agents were then "informed that the marriage did not avail him as it clearly failed the timing test included in the guidelines, i.e. it post-dated the service of illegal entry notice by 22 months." We are not primarily concerned with that earlier purported decision letter, but it is to be noted that in referring to it in this way, the writer of the letter of 6 March 1998 apparently regards what was said as being well-founded. At all events, in the letter of 6 March 1998, the writer goes on to say that the Secretary of State did not and does not claim that the marriage is not genuine and subsisting. And the next sentence is in the following terms:

Counsel for the respondent accepted that what was said in this sentence was quite simply wrong. Before commenting upon that matter, we think it useful to note two further passages in the letter. It is said that having considered the compassionate circumstances in this case, the Secretary of State was satisfied that it was not appropriate to deviate from the "general rule", as expressed in paragraph 2 of DP2/93, that "the marriage should only avail the subject if it pre-dates enforcement action. Consequently, it was decided to proceed with your client's removal to India." And subsequently, the letter contains this passage: "the period of co-habitation between the couple, as outlined in your letter of 29 January, has also been considered. However, the Secretary of State is satisfied that whilst common-law relationships are considered under DP2/93 as if they were marriages, the period in question post-dates the service of illegal entry notice and, as such, does not avail your client."

[10] On behalf of the petitioner and reclaimer, it was submitted that the letter, and in particular these three passages, showed that the writer had wholly misunderstood DP2/93, and had in consequence excluded from consideration what should have been a major consideration when applying paragraph 1 of DP2/93 to the present case - the weight to be attached to the marriage as a compassionate factor. That was a crucial consideration, whether the marriage in question pre-dated or post-dated enforcement action. The whole nature and characteristics of the marriage in question would have to be considered. Its duration was of course also significant, and the period of cohabitation between the petitioner and his wife was also a relevant factor. The letter was not merely silent upon these matters. It made it plain that they had not been considered or weighed. It revealed a fundamental misreading of paragraph 2, and a consequential misunderstanding of what was required by paragraph 1. The general rule set out in paragraph 2 was a rule that illegal entry action should not be initiated if certain requirements were met. One of these was that the marriage pre-date enforcement action. If the marriage post-dated enforcement action, an applicant could not rely upon this general rule whereby illegal entry action should not be initiated. But paragraph 2 did not provide (far less "clearly state") that as a general rule in order for illegal entrants "to benefit from marriages to British citizens" the marriage "must have pre-dated enforcement action". Nor did paragraph 2 express a general rule that the marriage should "only avail the subject" if it pre-dated enforcement action. Nor was there any justification for saying, of a period of cohabitation which post-dated enforcement action, that "as such" it did not "avail an applicant". The fact was that paragraph 1 positively required consideration of all these matters. The writer of the letter had wholly misdirected himself as to his obligations under that paragraph, and in consequence had shut his eyes to matters which he was required to look at.

[11] On behalf of the respondent, we have noted the concession that the first of the passages which we have quoted was wrong. It was nonetheless submitted that the letter must be read as a whole, and that reading it as a whole it revealed that the writer had fulfilled the requirement of paragraph 1 and, notwithstanding that this was a marriage which post-dated enforcement action, had reached a judgment on the weight to be attached to it as a compassionate factor, and had not excluded it from consideration, despite the error as to the effect of paragraph 2. In saying that the marriage "should only avail" the petitioner if it pre-dated enforcement action, the writer should be understood as meaning that the marriage would only prevail (along with the other requirements) in terms of paragraph 2, if it pre-dated enforcement action. That meant that paragraph 2 could not here be relied upon by the petitioner. But it did not mean that paragraph 1 had not been correctly applied. Somewhat similarly, although unmarried cohabitation would not really be in point for the purposes of paragraph 2, the passage in the letter dealing with such cohabitation should be read merely as saying that it could not, as an equivalent of marriage, have the effect which a pre-dating marriage would have under paragraph 2.

[12] We cannot read the letter as suggested by counsel on behalf of the respondent. The sentence which is conceded to be wrong is not merely wrong upon a fundamental matter. The erroneous view which it expresses is in our opinion clearly repeated when it is said that the marriage should "only avail" the subject if it pre-dates enforcement action. The question for the respondent was not whether he should deviate from the general rule expressed in paragraph 2. Given that the petitioner's marriage did not pre-date enforcement action, the general rule did not apply, and no question of deviating from it arose. Paragraph 1 was the paragraph in point. Paragraph 2 contains no general rule governing what must be done in terms of paragraph 1. In our opinion the writer of the letter has fundamentally misunderstood the effect of paragraph 2, and has thus come to ignore what lies at the heart of this case - the need for a judgment to be reached on the weight to be attached to the petitioner's marriage as a compassionate factor. There can be no question of the decision being left standing in such circumstances, and we accordingly quash it.

[13] While it is apparent that the weight to be attached to the petitioner's marriage, taken along with the other undisputed compassionate factors, will be substantial, counsel for the petitioner and reclaimer was content to have the matter remitted back for reconsideration, and did not go so far as to suggest that this court should hold that no reasonable Secretary of State could do otherwise than grant leave. That matter would, in any event, involve reaching a view as to whether there is a material risk that the petitioner would be permanently separated from his wife and child. If there is any such material risk, the rights conferred by Article 8 would plainly be very much in point. And if on the other hand it were clear that the petitioner would satisfy the requirements for entry, there would of course be a question as to whether it was important or indeed sensible to remove the petitioner as a step on the way towards readmitting him. But these are questions for the respondent. We therefore remit the matter to him for reconsideration and decision.