Scottish Court of Session Decisions

Sanches-Hoyos, Re [2002] ScotCS 70 (19th March, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD MENZIES in the Petition of JULIO EDUARDO SANCHEZ-HOYOS Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department to refuse the Petitioner leave to remain in the United Kingdom Respondent:   ________________

 

 

Petitioner: Mundy; Lindsays, W.S., (for Gray & Co, Glasgow)

Respondent: McSporran; H F Macdiarmid, Solicitor to the Advocate General for Scotland

 

19 March 2002

1. This petition for judicial review is brought to reduce a decision of the respondent, the Secretary of State for the Home Department, to refuse the petitioner leave to remain in the United Kingdom, which decision was intimated by letter dated 4 April 2000 and was confirmed by letter dated 8 May 2001.
2. The petitioner is a citizen of Peru. He was born on 22 June 1966. He first entered the United Kingdom in 1991, having been given leave to enter as a visitor in November of that year. After the expiry of that leave he remained in the United Kingdom without leave. In 1991 he formed a relationship with Carol Elizabeth Shearer, a citizen of the United Kingdom who is the mother of his son Yan Oliver William Sanchez. The child Yan was born on 6 November 1992, since which date he has resided in the United Kingdom with his mother. In the early part of 1993 the relationship between the petitioner and Carol Shearer ended, and she took the child Yan to live with her in Orkney. They have resided there ever since. On 7 October 1993 the petitioner married Adrienne Cowan, and on 25 November 1994 he submitted an application for leave to remain in the United Kingdom by reason of this marriage. This application was refused, and on 19 January 1995 the respondent made a decision to make a deportation order in respect of the petitioner by virtue of section 3(5)(a) of the Immigration Act 1971. On 27 November 1995 the petitioner lodged an application for judicial review of that order. During 1997 the respondent reconsidered the petitioner's application for leave to remain, and again refused it on 19 November 1997. The following month the petitioner voluntarily left the United Kingdom. In April 1998 he attempted to re-enter the United Kingdom but was refused entry as he was not in possession of the correct visa. His petition for judicial review which had been lodged on 27 November 1995 was dismissed on 12 November 1998. The petitioner re-entered the United Kingdom in early 1999, and on 16 July 1999 he was detained by immigration officers. The respondent determined that the petitioner had entered the United Kingdom in breach of section 3(1)(a) of the Immigration Act 1971 and decided to remove the petitioner from the United Kingdom on 18 July 1999. The petitioner was informed of the respondent's decision on 17 July 1999, on which date he made an application for asylum in terms of the Immigration Act 1971 and the Asylum and Immigration Act 1996. Following his detention, the petitioner was initially detained in HM Remand Institution, Longriggend, but was released on bail on 10 August 1999. His application for asylum was refused by the respondent by letter dated 9 September 1999. The petitioner appealed against this decision to the adjudicator of the Immigration Appeals authority. This appeal took place before the Special Adjudicator on 10 February 2000, and was dismissed on 3 March 2000. The petitioner was thereafter taken back into custody at HM Prison, Greenock, and on 9 March 2000 a further application for bail was refused.
3. On 10 March 2000 the petitioner's agents wrote to the respondent requesting him to grant leave to the petitioner to remain within the United Kingdom in accordance with section 4(1) of the Immigration Act 1971 in order that the petitioner could continue his relationship with his son Yan. This was the first occasion on which the petitioner's relationship with his son was used as the basis for an argument that the petitioner should be granted leave to remain within the United Kingdom. This letter indicated that Carol Shearer had expressed to the agents extreme concern that a decision has been taken to remove the petitioner from the United Kingdom; that during the past year the petitioner and Yan had developed a very close and loving relationship; and that Ms Shearer considers an ongoing relationship between the petitioner and Yan to be extremely beneficial to the child. The letter went on to state that Ms Shearer considered that the petitioner played an essential role in Yan's life and that Yan would be devastated if his father were to be removed from the United Kingdom and went on to state that she was extremely concerned that removal of the petitioner from the United Kingdom would have an extremely detrimental effect upon the child. The letter also expressed the view that because the petitioner is a street performer, she considered that any suggestion that he would be able to obtain sufficient funds to travel to the United Kingdom and to maintain himself for any appreciable period of time are entirely unrealistic.
4. By letter dated 17 March 2000 the Immigration and Nationality Directorate ("IND") replied to the petitioner's solicitors inter alia as follows:

"The Secretary of State has given full and careful consideration to your client's case in light of your representations including those relating to his child, however he does not consider them to be sufficiently compelling as to warrant making your client an exception to the usual practice of enforcing the removal of illegal entrants. In reaching this conclusion, the Secretary of State has carefully considered the contact Mr Sanchez has had with his son since his birth and is satisfied that any contact has been minimal and has only commenced recently. In conclusion he has provided no documentary evidence of any regular access, maintenance payments, Court orders or any other documents which would indicate that he has been in regular contact or that he has been responsible for his son's maintenance. It is therefore our intention to proceed with arrangements for your client's removal".

5. By letter dated 23 March 2000 the petitioner's solicitors replied to the Immigration Office pointing out that in terms of section 11 of the Children (Scotland) Act 1995 a Court should not make an order for contact with a child where this is unnecessary, and given the supportive attitude towards contact shown by Ms Shearer, a contact order or other such documentary evidence would not be available. This letter also enclosed an affidavit by Ms Shearer. In this affidavit she stated that during the summer of 1996 she recognised that it would be appropriate for there to be contact between the child Yan and the petitioner, that she arranged a meeting with the petitioner at which it was clear that he got on very well with Yan, and that the petitioner has remained in regular contact with Yan since that meeting. She stated that the petitioner and Yan have a close and loving relationship, and that since the summer of 1996 she has arranged to visit the petitioner every school holiday for one to two weeks on each occasion, and that the petitioner visited them in Orkney in February 2000 (she stated that the petitioner had wanted to travel to Orkney before this but was unable to do so because of the restrictions placed on him by his conditions of bail). In addition, she said that the petitioner frequently sends letters, cards, tapes etc to their son, and that there was telephone contact. She also said that she had been contacted by telephone by an Immigration Officer, and that she had confirmed that the effect of the petitioner's removal would be both substantial and detrimental to Yan.
6. By letter dated 4 April 2000 (which is the first decision letter which the petitioner seeks to have reduced) the IND replied to the letter from the petitioner's solicitors dated 23 March 2000. They set out the history of the petitioner's involvement with the Immigration authorities since July 1992, and referred to the letters of 10 and 23 March 2000 and Ms Shearer's affidavit. They pointed out that no documentary evidence has been provided to support Ms Shearer's affidavit, and that her affidavit conflicts with information which she gave to an immigration officer in a telephone conversation in July 1999. They went on to state:

"The Secretary of State has taken account of all the above information but he is not persuaded that the compassionate circumstances relating to Yan are such that he would be justified granting Mr Sanchez-Hoyos exceptional leave to remain in the United Kingdom outside the Immigration Rules. Although the matter regarding the custody of Yan was not resolved prior to Mr Sanchez-Hoyos's voluntary departure from the United Kingdom in December 1997, earlier evidence suggests that there had been little or no contact between them. Furthermore, no evidence beyond Ms Shearer's recent affidavit has been provided to show that Mr Sanchez-Hoyos has been in contact with his son since his illegal entry to the United Kingdom. The Secretary of State is furthermore aware that Mr Sanchez-Hoyos never mentioned the presence of his son when interviewed by immigration officers and believe that the evidence strongly suggests that he has only reverted to wanting to maintain his relationship with him once it became clear that there was no other basis in which he could seek to argue to be allowed to remain in the United Kingdom. The Secretary of State appreciates that it is generally desirable for the estranged parent in a relationship to maintain contact with any child. However, the particular weight to be attached to this factor must be determined in the light of the facts of each individual case and balanced against the need to maintain an effective immigration control. Having reviewed all the circumstances in the light of Mr Sanchez-Hoyos's very poor immigration history and the doubts that remain about the strength of the relationship he has maintained with his son, the Secretary of State is not prepared to exercise his discretion in favour of granting Mr Sanchez-Hoyos leave to remain".

7. On 11 April 2000 the present petition was intimated, and on 13 April 2000 a first order was granted, together with an order for interim liberation, with a requirement that the petitioner should reside at a specified address in Glasgow and report weekly on a Monday to a police station at Glasgow. On 24 February 2001 immigration officers interviewed the petitioner in the presence of Ms Shearer and Yan, during the course of which interview both the petitioner and Ms Shearer gave answers to questions. This interview (a transcript of which forms No.6/14 of process) appears to have lasted for about 2 hours 20 minutes, and explored the petitioner's relationship with Yan and the frequency, regularity and extent of the petitioner's contact with Yan. Following this interview, the respondent was asked to review the petitioner's case. By letter dated 8 May 2001 the IND wrote referring to the information which had been obtained in the interview (which was incorrectly stated to have occurred on 23 March 2001, but which parties agreed occurred on 24 February 2001). This represents the respondent's final view on the matter, with his reasoning therefor, and is sufficiently important that I set out in full four paragraphs of that letter:-

"The Secretary of State has now reviewed Mr Sanchez-Hoyos's case in the light of this interview but he is not prepared to reverse his decision of 4 April 2000. In reaching this decision, the Secretary of State notes that Mr Sanchez-Hoyos had failed to maintain contact with his son from the date of his separation from his partner in 1993 until 1996. The Secretary of State notes that although Mr Sanchez-Hoyos claims to have been in regular contact with his son since 1996, no evidence of this has been submitted. Furthermore, the Secretary of State notes that little physical contact has taken place between Mr Sanchez-Hoyos and his son and that the only regular contact has been in the form of letters and telephone calls.

In the light of the above, the Secretary of State is not persuaded that he would be justified in granting Mr Sanchez-Hoyos exceptional leave to remain in the United Kingdom outside the Immigration Rules. Although he appreciates that it is generally desirable for the estranged parent in a relationship to maintain contact with a child, the weight attached to this factor must be determined in the light of the facts of each individual case and balanced against the need to maintain an effective immigration control. The Secretary of State does not consider that Mr Sanchez-Hoyos enjoys regular access to his son and taking into account his very poor immigration history, he is not prepared to exercise his discretion in Mr Sanchez-Hoyos's favour.

The Secretary of State has considered whether, in removing Mr Sanchez-Hoyos to Peru, it would breach his right to private and family life under Article 8 of the ECHR. Article 8 is a qualified right which requires a balancing exercise. The Secretary of State must first decide if family life exists and secondly decide whether any interference would be justified. The Secretary of State accepts that some degree of family life exists between Mr Sanchez-Hoyos and his son, even though they spend only a limited amount of time together. The Secretary of State recognises that if Mr Sanchez-Hoyos is removed to Peru, this limited contact with cease but he does not consider this to be a sufficiently compelling factor to lead to enforcement action being abandoned. He has considered the interests of the child in this regard but again does not believe the cessation of contact to be sufficiently compelling. In any case, the Secretary of State is of the view that any interference can be justified in the circumstances of Mr Sanchez-Hoyos's case and in the light of his very poor immigration history. The Secretary of State does not therefore accept that in removing your client to Peru, he would be in breach of Article 8.

Moreover the Secretary of State considers that there is no reason why Mr Sanchez-Hoyos cannot continue to maintain contact with his son through letters and telephone calls once he has returned to Peru. It will also be open to him to apply for entry clearance to visit his son here provided he can meet the usual requirements of the Immigration Rules applicable to visitors. In the light of all the known factors and for the reasons given above, the Secretary of State is not prepared to reverse his decision of 4 April 2000."

8. For the petitioner, Mr Mundy submitted that the respondent's two decision letters fell to be reduced on two grounds -

(1) That they were irrational, or unreasonable in the "Wednesbury" sense (on the basis of the line of authorities found on Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) KB 223) and

(2) That they were contrary to Article 8 of the European Convention on Human Rights.

9. With regard to his argument based on Wednesbury unreasonableness, Mr Mundy accepted that for his purposes the court required to be satisfied that both decision letters (that is, the letter of 4 April 2000 and that of 8 May 2001) were unreasonable. He also accepted that these are both examples of what he described as the Home Secretary's "over-arching" discretion, which was a discretion not covered by any statutory provision. He submitted that the core of the respondent's decision was a doubt about the nature, quality and extent of contact between the petitioner and his son. The evidence before the Secretary of State on this matter prior to the letter of 4 April 2000 comprised the letter from the petitioner's agents dated 10 March 2000 and the letter from the petitioner's agents dated 23 March 2000 enclosing Ms Shearer's affidavit. It also appears that the Secretary of State had a faxed letter which was not before the court, and information obtained in the course of a telephone call with Ms Shearer. It appeared from the last sentence of page 2 of the letter of 4 April 2000 that the respondent placed some emphasis on the fact that no documentary evidence has been provided to support a strong relationship between the petitioner and Yan. He asked what documentary evidence was likely to be available to support this, and in this regard pointed to the provisions of sections 1(1)(c) and 11(7) of the Children (Scotland) Act 1995. It was clear from the decision of the First Division in White v White 2001 S.L.T. 484 that it can normally be assumed that continuing contact between a parent and child will be of benefit to the child. Insofar as the first decision letter relied on an apparent conflict between Ms Shearer's affidavit and the information which she gave an Immigration Officer in telephone conversation on 16 July 1999, neither the petitioner nor Ms Shearer was given an opportunity to comment on this, nor was the detail of the alleged conflict put to either of them. At the time of writing the letter of 4 April 2000, there was evidence before the respondent of a loving and close relationship between the petitioner and the child Yan, namely the affidavit of Ms Shearer. There was no sound reason, on the evidence before the respondent at that time, to doubt the veracity of that affidavit (if one disregards the apparently conflicting telephone information, which Mr Mundy submitted ought to be disregarded). The basis for the respondent's position in the letter of 4 April 2000 was doubt as to the strength of the relationship between the petitioner and the child Yan.
10. Mr Mundy accepted that in order to succeed he required to persuade me that the letter of 8 May 2001 was also unreasonable. The respondent's position in that letter has altered, he submitted, in that the respondent was no longer doubting that there was a relationship between the petitioner and his son, but rather was doubting the quality of the contact between them. By the time of writing this letter dated 8 May 2001 additional information was before the Secretary of State which shed further light on the quality of this relationship. The additional information fell into three parts. First, there were three letters which were lodged as productions in these proceedings in April 2000. These were a letter from Ms Shearer to the petitioner's solicitor dated 10 April 2000, and letters from Ms Shearer's sister and parents each dated 29 March 2000 (Nos.6/5, 6/6 and 6/7 of process), each of which were indicative of a strong relationship between the petitioner and Yan, and a high quality of contact between them. None of these three letters was sent direct to the respondent, but they were lodged in this process, and were therefore to be regarded as properly before him. (It was a matter of concession by Mr McSporran for the respondent that the respondent did not in fact take these letters into account when writing the letter of 8 May 2001). Second, there was a hand-written letter from Ms Shearer which is undated but which, from the facsimile heading, appears to have been in the possession of the Immigration Authorities by 24 February 2001 at the latest (which is No.6/13 of process). Third, there was an interview between an Immigration Officer at Glasgow Airport and the petitioner and Ms Shearer and Yan on 24 February 2001, in which the quality of contact between the petitioner and Yan was explored and the strength of their relationship was the subject of questioning. (A transcript of this interview forms No.6/14 of process). Mr Mundy submitted that in light of this information, no reasonable Home Secretary could have reached the conclusion that there was limited contact between the petitioner and his son. It was clearly wrong to state that no evidence had been submitted of the petitioner having been in regular contact with his son since 1996, and the assertion that "little physical contact" had taken place, and that "the only regular contact has been in the form of letters and telephone calls" was plainly contrary to the evidence contained in the affidavit, the interview, and the other additional information. All of these items support the view that there was regular contact between the petitioner and the boy, with a good quality. The respondent also had to bear in mind the effect of the petitioner's bail conditions on his ability to see the child in Orkney. It was not open to the respondent to find that there was not regular contact between the petitioner and Yan in the absence of good reason for questioning the veracity of the evidence before him. There was no such good reason. This was a decision which no reasonable Secretary of State could have reached because it was not open to him to reach the conclusion which he did on the quality of contact. If it was not open to him to come to the conclusion on the quality of contact, it followed that it was not open to him to reach the decision which he did. Mr Mundy accepted that the respondent required to carry out a balancing exercise, balancing the need to maintain an effective system of immigration control against the consideration of the petitioner's continued contact with his son. On the one hand, the respondent has looked at the petitioner's immigration history (which Mr Mundy conceded was not good), and on the other hand he has looked at the quality and regularity of contact. Mr Mundy did not suggest that the respondent has failed to look at the question of contact, but rather that he could not properly have reached the decision which he did reach on the quality and regularity of that contact on the material before him.
11. Mr Mundy's second submission was that in any event the respondent's decisions amounted to unjustifiable interference with the petitioner's family life, and were therefore in breach of Article 8 of the European Convention on Human Rights. That being so, the decisions complained of were unlawful by reason of section 6(1) of the Human Rights Act 1998. Under reference to Keegan v Ireland 1994 18 EHRR 342, he submitted that there was family life for the purposes of Article 8 in the present case, despite the fact that the petitioner was not married to Ms Shearer. He submitted that the respondent's decision not to exercise his discretion in favour of the petitioner was disproportionate in all the circumstances. In support of this he referred me to Berrehab v The Netherlands 1989 11 E.H.R.R. 32, Saini v Secretary of State for the Home Department 1999 S.L.T. 1249 and Nwokoye v Secretary of State for the Home Department 2002 S.L.T.128. He submitted that standing the fact that the petitioner was a street theatre performer and had limited means, the expense of travelling from Peru to the United Kingdom, and the need for the petitioner to apply for entry for this purpose in terms of Immigration Rule 246, the effect of the respondent's decision will be in reality that the petitioner will be permanently separated from his child. He submitted that very similar (if not indeed identical) considerations applied to his Wednesbury unreasonableness submission as applied to his Article 8 submission, and that however the respondent's decision letters were categorised, they were perverse, unreasonable and disproportionate and fell to be reduced.
12. In reply, Mr McSporran for the respondent began his submissions by considering the approach which the courts have taken to judicial review of a discretionary decision such as this, whether under the heading of Wednesbury unreasonableness or under Article 8. He submitted that the court allows a broad measure of discretion to the decision-maker, and that the court should be slow to interfere with the respondent's decision. He referred me to Gangadeen v Secretary of State for the Home Department 1998 Imm. A.R. 106, and particularly the remarks of Hirst L.J. at p.115. He also referred me to two decisions of Lord Eassie, namely Nisar Ahmed 2000 S.C.L.R. 761 and Mohammed Akhtar v Secretary of State for the Home Department 2001 S.L.T. 1239. In the first of these cases Lord Eassie observed (at para.20), in considering whether the decision in that case was 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."

In Akhtar he observed (at para.16) that

"in a judicial review of a decision taken by or on behalf of the Secretary of State in a matter such as this the question is not whether the court, approaching the facts at first instance, might consider Article 8 to have been breached but rather whether the decision-taker's view that Article 8 was not infringed was one at which he might reasonably arrive."

He went on to observe that,

"In cases such as this, involving the exercise of the Secretary of State's residual discretion, one is concerned essentially with the decision itself rather than a textual examination of the terms of the letter communicating that decision.... The Secretary of State's officials are simply giving a response to a request for the exercise of a discretion, outwith the provisions of the Immigration Rules... I do not consider that the validity of the decision communicating the result of the request for the exercise of the discretion may be impugned simply on the basis that the letter does not discuss every aspect of the case or contain a full analysis of the decision-taker's thought processes."

Mr McSporran also referred me to the decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte Isiko [2001] 1 F.L.R. 930, at 944/945, particularly at para.31 -

"Where the court reviews a decision which is required to comply with the European Convention by the Human Rights Act 1998 it does not substitute its own decision for that of the Executive. It reviews the decision of the Executive to see if it was permitted by law - in this instance the Human Rights Act 1998. In performing this exercise the court has to bear in mind that, just as individual states enjoy a margin of appreciation which permits them to respond within the law in a manner which is not uniform, so there will often be an area of discretion permitted to the executive of a country which needs to be exceeded before an action must be categorised as unlawful. In this area, difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In cases involving immigration policies and the rights to family life, it will be appropriate for the courts to recognise that there is an area of judgement within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose decision is said to be incompatible."

13. Mr McSporran accepted that the discretion which was the subject of these proceedings was an extra statutory discretion, and that the only guidance with regard to its exercise was to be found in Government Practice Note EP4/96, and in particular at para.8, the last sentence of which provides that "in these cases it will be important to assess the quality and the regularity of access to the child in deciding how much weight should be attached to it as a compassionate factor." Mr McSporran accepted that this was the primary port of call, and that it was appropriate for the court to look to this guidance. With regard to the letters from Ms Shearer and her sister and parents (Nos.6/5, 6/6 and 6/7 of process) he accepted that these were intimated to the respondent's solicitors with the petition on about 11 April 2000, and that the decision-maker did not, as a matter of fact, look at these before issuing the decision letters complained of. However, he submitted that the information contained in these letters was somewhat stale by the date of the decision letter of 8 May 2001, and that more up-to-date information was obtained by the respondent in the course of the interview held on 24 February 2001, which explored in some detail the quality and the regularity of the petitioner's access to the child. No additional specification is provided in the letters from Ms Shearer's sister and parents as to the frequency or circumstances of contact. The decision-maker did have the undated letter written by Ms Shearer which forms 6/13 of process before writing the letter of 8 May 2001, and took this into consideration. Although the bona fides of the petitioner was queried in the letter of 4 April 2000, this was no longer the respondent's position as at 8 May 2001. Paragraph 2 of the letter of 8 May 2001 set out accurately the principal points being relied on by the petitioner. In the last paragraph of page 1 of that letter, he submitted that the word "documentary" had been omitted from the passage "no evidence of this has been submitted". The respondent accepted that there had been regular contact between the petitioner and his son, but the only regular contact has been in the form of letters and telephone calls, with little physical contact. He submitted that this decision was well within the reasonable span of views, and was within the scope of the respondent's discretion. The Secretary of State was entitled to state, on the basis of the most recent information available to him (i.e. the transcript of the interview of 24 February 2001) that there had been little physical contact and that the only regular contact had been in the form of letters and telephone calls. He submitted that the words "little" and "regular" are not absolute terms, and represented a conclusion or evaluation of information which had been set out earlier in the letter. This was not outwith the scope of the respondent's discretion. The respondent had considered not only the regularity of contact with the child, but also the quality of that contact. In all the circumstances it could not be said that the decision was irrational or unreasonable (nor, for that matter, could it be said to be disproportionate for the purposes of Article 8).
14. In his response to Mr Mundy's submission on Article 8, Mr McSporran accepted that contact between a child and his unmarried father who was separated from his mother might amount to family life for the purposes of Article 8. However, he reiterated his reliance on the authorities to which he referred at the outset of his submissions, and in particular the observations of Lord Eassie in Mohammed Akhtar (supra) at para.16 that the question is not whether the court, approaching the facts at first instance, might consider Article 8 to have been breached but rather whether the decision-taker's view that Article 8 was not infringed was one at which he might reasonably arrive.
15. Mr McSporran's primary position with regard to Article 8 was that there was not even an arguable breach of the European Convention in this case - in terms of the jurisprudence of the European Court of Human Rights there was not even a prima facie case for the respondent to answer, and that being so, it was not necessary for me to consider the question of proportionality. He submitted that it was important to note that when the child Yan was conceived, the petitioner was not lawfully resident in the United Kingdom - he was either in the United Kingdom as a visitor, or he had remained in the United Kingdom without leave, his status as a visitor having expired. Since the conception of Yan, the petitioner has never been lawfully resident within the United Kingdom. In Mr McSporran's submission this was a crucial factor when considering the effect of "Strasbourg jurisprudence". It was sufficient, in his submission, to distinguish the present case from Berrehab v The Netherlands (supra), because in that case the child of the relationship was conceived and born at a time when the petitioner was married to a Dutch woman and was (and had been for several years) living lawfully in the country. It was against that background, and a background of close ties between the child and the father, that the case of Berrehab was decided. This falls to be contrasted with the situation in which the parent of a child enters into a family relationship at a time when he (or she) was aware of his precarious immigration status and had no legal right to reside in the country. In this regard he relied on two decisions of the European Commission of Human Rights, namely Poku v United Kingdom (1996) 20 E.H.R.R. Commission Supplement 94, and McKenzie v United Kingdom (unreported, dated 9 April 1997). He submitted that it was clear from these Commission decisions that even in circumstances in which there is "family life", the situation of both child and unlawfully resident father was created by and flows from the choice exercised by the father rather than from any direct interference by the State with family relationships. Both the petitioner and Ms Shearer must be taken to have been aware of the petitioner's precarious immigration status and the probable consequential effects on his relationship with any child resulting from a relationship between the petitioner and Ms Shearer. In both Poku and McKenzie the Commission regarded this as sufficient to distinguish those cases from Berrehab, and to find the application "manifestly ill-founded" within the meaning of Article 27(2) of the Convention.
16. For these reasons, Mr McSporran submitted that there was no prima facie breach of Article 8 of the Convention, and it was therefore not necessary to consider proportionality. However, esto he was wrong in this submission, he submitted that in any event the decision was proportionate. The special circumstances which were present in Abdadou v Secretary of State for the Home Department, 1998 S.C.504 were not present here; the case of Saini (supra) was not concerned with contact with an unmarried father. He submitted that it was clear from the terms of the decision letter dated 8 May 2001 that the Secretary of State carried out the requisite balancing exercise and had regard to all the relevant circumstances. He submitted that the respondent's decision was neither unreasonable nor irrational, nor was it contrary to Article 8, and in support of this he referred me to several recent decisions of the Court of Session, including Harinder Singh (an unreported decision of Lord Bonomy dated 11 November 1999), Mohammed Akhtar (supra) particularly at paras.17 and 18, Nasim Ahmed (an unreported decision of Lord McEwan dated 9 March 2001, particularly at paras.51 - 53), and Peter Nwokoye (supra) particularly at paras.21 - 23.
17. In conclusion, Mr McSporran submitted that the respondent had the duty to maintain an effective immigration policy, with many thousands of applications every year and the risk that if exceptions were made, these would undermine the whole policy. He submitted that the respondent had taken all material factors regarding the petitioner's contact with the child into account and had left no material factors out of account. He submitted that it could not be said that the respondent's decision was perverse. There was not even a prima facie case of a breach of Article 8 of the European Convention, but even if the court was satisfied that there was such a prima facie case, it was clear on the facts that the respondent's decision was not disproportionate. He invited me to refuse the prayer of the petition.

Decision

18. The question for this court is of course not what I would have done in these circumstances if I had been exercising the discretion which was being exercised by the respondent. The test which the court must apply is whether the respondent's exercise of his discretion was so perverse or irrational that no reasonable Secretary of State could have reached it if applying his mind reasonably to the facts before him. I am in complete agreement with the observations of Lord Eassie as to the proper approach to be taken by the court (in cases such as this involving both Wednesbury unreasonableness and an alleged breach of Article 8) in Mohammed Akhtar (supra at paras.16 - 18) and Nisar Ahmed (supra at para.20). I also respectfully agree with the conclusions of the Court of Appeal in Isiko (supra at para.31). It is perhaps worth emphasising one sentence from Lord Eassie's Opinion in Mohammed Akhtar at para.17, with which I agree completely and which is apposite to the present petition:

"I would observe at this point that in cases such as this, involving the exercise of the Secretary of State's residual discretion, one is concerned essentially with the decision itself rather than a textual examination of the terms of the letter communicating that decision."

19. As both parties were agreed in the present proceedings, the exercise of the respondent's discretion in this matter involved balancing the individual interests of the petitioner and his child with the interests of the State in maintaining an effective immigration control policy. In this balancing exercise, inevitably there is an element of judgement, with the reasonable exercise of which the courts will not interfere. In considering the interests of the petitioner and the child in this exercise, both parties accepted that the only statement of Government policy or guidance which is relevant is to be found in para.8 of DP4/96, and in particular the last sentence, which states that "in these cases it will be important to assess the quality and the regularity of access to the child in deciding how much weight should be attached to it as a compassionate factor."
20. Although it might have been open to the Secretary of State to have reached the opposite conclusion in this balancing exercise, I do not consider that on the basis of all the material before him his exercise of this discretion can be categorised as irrational, perverse or unreasonable in the Wednesbury sense. He was faced with a petitioner whose immigration record (as Mr Mundy conceded) was not good, and who had been resident in the United Kingdom unlawfully for most of the period since 1992. During that period there were numerous applications by the petitioner to be allowed to remain in the United Kingdom, on such grounds as his marriage to another woman and an application for asylum, but it was not until the petitioner's solicitor's letter dated 10 March 2000 that the relationship with his son was prayed in aid of his remaining in the United Kingdom. At the date of the first decision letter, i.e. 4 April 2000, it appears that the only documentary evidence to support the petitioner's reliance on his relationship with Yan was the affidavit from Ms Shearer. It is clear from the terms of the letter of 4 April 2000 that some consideration was given to the terms of this affidavit, but against the whole background narrated in that letter it is also clear that the decision-maker harboured doubts as to the strength of the relationship between the petitioner and his son, and whether this was indeed a bona fide relationship. The decision-maker does appear to have assessed the quality and regularity of access to the child, and to have reached the view that the compassionate circumstances relating to Yan were not such as to justify granting the petitioner exceptional leave to remain in the United Kingdom outside the Immigration Rules. I do not consider that this decision could be described as irrational, perverse or unreasonable.
21. Thereafter the present petition was raised, and documentary evidence in the form of letters from Ms Shearer, her sister and parents was lodged in court. It is a matter of concession that the effect of this lodging was to give notice of this documentary evidence to the respondent, although he was in fact not made aware of it and he did not take account of it when reaching his decision of 8 May 2001. In some circumstances the failure to have regard to documentary evidence might render a subsequent decision open to challenge. However, I do not consider that this failure has that effect in the present case. I say this for three reasons -

(1) Because the letters were dated 29 March and 10 April 2000, and the decision was taken on 8 May 2001, and the relevant circumstances to which the decision-maker ought to have had regard were the most up-to-date circumstances available;

(2) Because the letters are themselves relatively vague and inspecific, and add little if any detail to the assertions made in Ms Shearer's affidavit, nor do they provide much assistance in the assessment of the quality and regularity of contact; and

(3) Because the respondent caused further investigations to be made into the quality and regularity of contact in the form of the interview which took place at Glasgow Airport on 24 February 2001, and had before him the transcript of that interview and also the letter written by Ms Shearer before it and handed over after it (Nos.6/14 and 6/13 of process).

In light of these factors, I do not consider that the failure to have regard to the earlier letters is fatal to the decision taken on 8 May 2001.

22. By the date of the second decision letter, i.e. 8 May 2001, the respondent's earlier position of scepticism as to the bona fides of the relationship between the petitioner and Yan had changed. The questioning of the petitioner and Ms Shearer at interview on 24 February 2001 was designed to enable the respondent to assess the quality and regularity of contact between the petitioner and Yan. This procedure was perhaps not perfect, and it might have been open to challenge (although I express no view on this point) if the respondent had been fulfilling a judicial or quasi-judicial role. However, he was not. He was gathering information to enable him to exercise an extra-statutory discretion. In this light I do not consider that the interview procedure can be criticised. The results of that procedure were, it seems to me, fairly summarised in the opening paragraphs of the letter of 8 May 2001. The decision-maker accepted in that letter that it is generally desirable for the estranged parent in a relationship to maintain contact with a child, but the weight attached to this factor must be determined in the light of the facts of each individual case and balanced against the need to maintain an effective immigration control. Bearing in mind that this letter should not be subject to a detailed textual examination and that the court is concerned with the decision itself rather than the letter communicating that decision, I am unable to say that the decision taken on 8 May 2001 was unreasonable in the Wednesbury sense.
23. Turning to Article 8, as has been observed in other cases, there is inevitably an area of overlap between the considerations applicable to an alleged breach of Article 8 and those applicable to a Wednesbury unreasonableness case. However, I am satisfied that the present case falls to be distinguished on its facts from the case of Berrehab, and that it is much more closely analogous to the cases of Poku and McKenzie. The fact that the child in the present case was conceived at a time that the petitioner was residing in the United Kingdom unlawfully (or, at best for him, had received leave to enter the United Kingdom as a visitor) is in my opinion sufficient to distinguish this case from Berrehab. As was observed in R v Secretary of State for the Home Department ex parte Balwant Singh 1997 Imm. A.R. 331 at 334 (quoted with approval by Lord MacLean in Peter Nwokoye at para.21):-

"what is implicit in any decision to marry or to settle down in a cohabitation relationship once enforcement action has been initiated, is the risk which is now manifest that it will be disrupted by removal. Having children in such a relationship also unhappily, sometimes desperately unhappily, blights the children with the same risk."

24. Although enforcement action had not been initiated in the present case when the petitioner and Ms Shearer commenced their relationship, these remarks are to some extent applicable here.
25. If the only proper conclusion which could have been drawn from the evidence was that the petitioner and the child Yan enjoyed frequent high quality contact in the sense that they physically saw each other often, and if it was clear that this contact would inevitable cease as a result of the exercise of the respondent's discretion, then matters might possibly be different. However, with regard to the frequency and quality of contact to date, the respondent has decided that little physical contact has taken place and that the only regular contact has been in the form of letters and telephone calls. This is a decision, as I have indicated above, which I consider that the respondent was entitled to take. Moreover, the respondent considered the effect of the petitioner's removal to Peru on his continuing contact with the child, and observed that there was no reason why he cannot continue to maintain contact with his son through letters and telephone calls once he has returned to Peru. He also observed that it would be open to the petitioner to apply for entry clearance to visit his son here. Standing the fact that the petitioner voluntarily left the United Kingdom in about December 1997 and then re-entered in early 1999, (and so had the financial resources to do this), I do not consider that this aspect of the respondent's decision is open to challenge.
26. In all the circumstances I consider that Mr McSporran's submission that there is no arguable or prima facie breach of Article 8 is well-founded. Even if I am wrong in this conclusion, and it is appropriate to consider the question of proportionality of the respondent's decision, I am satisfied that it cannot be said that it was disproportionate. The respondent identified the correct issues, and thereafter addressed them properly and carried out the balancing exercise between the interests of the state and the interests of the individual which he was required to do. Nothing in the material before me suggests that he was in breach of Article 8 in doing so.
27. For the foregoing reasons I sustain the first and third pleas-in-law for the respondent and refuse the petition. It follows from this that the interim liberation of the petitioner which was granted on 13 April 2000 falls.