Scottish Court of Session Decisions

Shahid Re Petition for Judicial Review [2003] ScotCS 143 (15 May 2003)

OUTER HOUSE, COURT OF SESSION
P389/02	OPINION OF LADY PATON in the Petition of MOHAMMED SHAHID Petitioner; for judicial review of (i) a determination of an adjudicator; (ii) a determination of the Immigration Appeal Tribunal to refuse leave to appeal     ________________

 

 

Petitioner: Stark, Advocate; Drummond Miller, W.S.

Respondent: A. J. Carmichael, Advocate; Advocate General's Office

 

15 May 2003

Application for asylum

1. The petitioner was born on 1 January 1973. He is a citizen of Pakistan. On 19 December 1998 he entered the United Kingdom. He had travelled from Pakistan by way of Singapore. He had a valid passport. He claimed asylum immediately. His application was processed in the normal way. Meantime the petitioner remained in the United Kingdom. In the spring of 1999, the petitioner began living with a British citizen, Miss Ghazala Ashraf. On 4 May 1999, while the petitioner's immigration status remained unresolved, he married Miss Ashraf. He was at that time hopeful that he would be granted asylum. He and his wife were living in Glasgow.
2. By letter dated 22 February 2001 number 6/1 of process, the petitioner's application for asylum was refused. At that time, the petitioner's wife was expecting the couple's child. She gave birth on 8 April 2001.
3. The petitioner appealed against the refusal to grant asylum. A hearing before an adjudicator took place in Glasgow on 20 June 2001. By a determination promulgated on 17 July 2001 the adjudicator refused the appeal. In paragraph 27 of the determination, he stated:

"I have considered the fact that the appellant is married to a United Kingdom citizen, however I do not accept that Article 8 of the European Convention gives the appellant the right to choose the most suitable place to develop family life. The Human Rights appeal is dismissed."

4. The petitioner sought leave to appeal. By a determination notified on 26 September 2001, the Immigration Appeal Tribunal (IAT) refused him leave to appeal. Directions for the removal of the petitioner to Pakistan were issued on 2 April 2002. On 4 April 2002, the petitioner commenced the present judicial review procedure.
5. At the first hearing of the judicial review, counsel for the petitioner advised that of the three arguments outlined in the petition, namely (i) credibility; (ii) Article 8 of the European Convention on Human Rights (ECHR); and (iii) persistence of persecution, counsel would rely upon the second argument only.

Article 8 of the European Convention on Human Rights: petitioner's marriage to a British citizen

6. Article 8 of the ECHR provides:

"Respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
7. The petitioner's argument founded upon Article 8 was set out in paragraph 11 of the petition as follows:

" ... the determination of the adjudicator is unreasonable in that the adjudicator failed to give adequate and comprehensible reasons for his determination. A determination must leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it.

At paragraph 27 of his determination, the adjudicator simply states:

'I have considered the fact that the appellant is married to a United Kingdom citizen, however, I do not accept that Article 8 of the European Convention gives the appellant the right to choose the most suitable place to develop family life. The Human Rights appeal is dismissed'

The informed reader is left in real and substantial doubt as to the reasons for which the adjudicator concluded that the decision of the respondent to remove the petitioner from the United Kingdom was compatible with the petitioner's right to respect for his family life in terms of Article 8 of the European Convention. The informed reader is left in real and substantial doubt as to what were the material considerations taken into account by the adjudicator in reaching the said conclusion and what weight he attached to each of them. The adjudicator accordingly failed to give adequate and comprehensible reasons for his determination and his determination ought to be reduced."

Submissions on behalf of the petitioner

8. Counsel submitted that the few lines in paragraph 27 of the adjudicator's determination relating to the petitioner's married status were accurate, but did not represent the whole story. It was impossible to know from those few lines what evidence had been led and what submissions had been made on the petitioner's behalf. The adjudicator made no finding-in-fact about family life. If the petitioner's case were now to be returned to the adjudicator or to the IAT, it was likely that the necessary findings-in-fact would be made.
9. One issue which should have been addressed by the adjudicator, but was not, was the question whether the removal of the petitioner from the United Kingdom would be an interference with family life, contrary to Article 8 of the ECHR. Counsel submitted that if the matter were to be investigated now, by the IAT or by an adjudicator, there would be such a finding. Another issue which should have been addressed by the adjudicator, but was not, was the conflict between respect for family life and the enforcement of immigration controls. There was no indication in the determination that the adjudicator had considered that conflict.
10. Counsel referred to Mahmood v Secretary of State for the Home Department [2001] 1 WLR 840. In that case the Master of the Rolls, Lord Phillips, reviewed the law relating to Article 8 in the context of immigration, and in paragraph 55 set out useful guidelines as follows:
1. A state has a right under international law to control the entry of non- nationals into its territory, subject always to its treaty obligations.
2. Article 8 does not impose on a state any general obligation to respect the choice of residence of a married couple.
3. Removal or exclusion of one family member from a state where other members of the family are lawfully resident will not necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family.
4. Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a state if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled.
5. Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates Article 8.
6. Whether interference with family rights is justified in the interests of controlling immigration will depend on (i) the facts of the particular case and (ii) the circumstances prevailing in the state whose action is impugned.
11. Counsel for the petitioner advised that the first proposition was accepted. The second proposition seemed to be the one which the adjudicator had addressed in paragraph 27 of his determination. But none of the others had been addressed. The third proposition was relevant in the present case. There was nothing in the determination indicating whether any facts were accepted or rejected in the context of insurmountable obstacles to the family living in Pakistan. Yet ex parte statements in counsel's possession suggested that there were indeed insurmountable obstacles. In particular, the petitioner's wife had been born and educated in the United Kingdom. She had lived in the United Kingdom all her life. She had a career in the United Kingdom, working as a sales adviser for British Telecom. These matters ought to have been considered. They had not been.
12. In relation to the fourth proposition, counsel submitted that the petitioner's family was long-established in the United Kingdom. The petitioner had lived in the United Kingdom since 1998. He had been living with his wife since the spring of 1999. Accordingly there was a case to be made that it would be unreasonable to expect the petitioner's wife to follow the petitioner to Pakistan. The adjudicator made no findings on these matters.
13. So far as the fifth proposition was concerned, the couple had married long before the petitioner's application for asylum was refused. He had thought that his application might succeed. This was not a case of an applicant for asylum marrying in the knowledge that his application had been refused. The adjudicator appeared not to have considered these factors.
14. In relation to the sixth proposition, counsel for the petitioner accepted that much depended on the facts of a case. In the petitioner's case, it was not possible to tell from the determination what facts had been placed before the adjudicator. Article 8 of the ECHR referred to a person's private life in addition to family life; but there was no indication in the adjudicator's determination that he had considered the petitioner's private life. It was not possible to tell from the determination what facts had been placed before the adjudicator.
15. Reference was then made to Rule 18 of the Immigration and Asylum Appeals (Procedure) Rules 2000. Rule 18(7) provided:

"Leave to appeal [from the determination of an adjudicator] shall be granted only where -

1. the [IAT] is satisfied that the appeal would have a real prospect of success, or
2. there is some other compelling reason why the appeal should be heard."

Counsel contended that there were real prospects of success, whether the case were to be returned to the IAT or to the adjudicator. On the facts of the case, the petitioner ought to be granted asylum under Article 8 of the ECHR. Counsel further contended that there was "some other compelling reason why the appeal should be heard", namely the reasons given by the adjudicator for refusing the human rights appeal were not adequate and not comprehensive. Justice had not been seen to be done.

Submissions on behalf of the respondent

16. Counsel for the respondent submitted that the petition should be dismissed. Alternatively, failing dismissal, the IAT's refusal of leave should be reduced, and the case remitted back to the IAT for reconsideration of the application for leave to appeal.
17. While the petitioner had requested that the matter be remitted back to the adjudicator, counsel pointed out that, standing the terms of rule 58.3(2) of the Rules of the Court of Session, judicial review was inappropriate where an appeal procedure was available. The immigration and asylum rules provided an appeal procedure. Accordingly if the petition were not to be dismissed, the court should reduce the IAT's refusal of leave to appeal and remit the case to the IAT for reconsideration of their refusal of leave. It was inappropriate that the court should remit the case back to the adjudicator, for in that way the court became involved in the appeal procedure.
18. Counsel also pointed out that in terms of Rule 22(2) of Schedule 4 to the Immigration and Asylum Act 1999, the IAT had power to affirm a determination or to "make any other determination which the adjudicator could have made". The IAT accordingly had wide and flexible powers. They could hear new evidence: they could remit the matter back to the adjudicator: they could hear further from the applicant. Accordingly from a purely practical point of view it was also appropriate that the matter simply be remitted back to the IAT, and not to the adjudicator.
19. Counsel for the respondent submitted that the onus lay upon an applicant for asylum to put before the adjudicator the relevant facts and issues to be considered. In paragraph 11 of his determination, the adjudicator noted:

"Turning to the matter of the Human Rights appeal, again the onus is upon the appellant. The standard of proof applicable is that of substantial grounds for believing that there is a real risk of harm or to put that in another way, a substantial degree of likelihood of harm ... In relation to the rights of the appellant under the Articles of the European convention other than Article 3, I may take into account evidence which was available to the respondent at the time the decision was taken or which relates to relevant facts as at that date."

20. The assertion that the onus lay upon the appellant had not been challenged by counsel for the petitioner. Much of the petitioner's complaint concerned the fact that the adjudicator's determination did not disclose whether he had considered the issue of insurmountable obstacles. But it was for the petitioner to place before the adjudicator any materials and submissions relevant to insurmountable obstacles. It was for the petitioner to demonstrate to the adjudicator why it would be unreasonable to expect his wife to follow him to Pakistan. There was no suggestion that the petitioner had done so. There was nothing to suggest that anything other than the bare fact of the marriage had been placed before the adjudicator. In the circumstances, it was for the petitioner's counsel to advise this court at the first hearing of the judicial review whether she had information that certain materials and submissions had been placed before the adjudicator, yet were not reflected in his determination. Counsel for the petitioner had not so advised the court. It appeared that the fact of the marriage alone had been put before the adjudicator, the child of the marriage not having been born at the time of the original refusal of asylum.
21. Counsel for the respondent then submitted that, following well-established European case-law, the petitioner would have to be able to demonstrate exceptional circumstances in order to justify his reliance upon Article 8. It was well-settled in Strasbourg jurisprudence that where a marriage had been entered into at a time when one party's immigration status was precarious, the marriage and the subsequent birth of any child did not automatically mean that removal of that party from the United Kingdom would be a breach of Article 8, unless there were exceptional circumstances. The onus lay upon the appellant to raise the issue of such exceptional circumstances. Reference was made to Ajayi v. United Kingdom, unreported, European Court of Human Rights, application number 27663/95, particularly page 9 of the print, where the court observed:

"... Another important consideration will also be whether the marriage, albeit manifestly not one of convenience, was contracted at a time when the parties were aware that the immigration status of one of them was such that the persistence of the marriage within the host state would from the outset be precarious. The court considers that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national spouse will constitute a violation of Article 8 (cf. Eur. Court HR, Abdulaziz, Cabales and Balkandali, [judgement of 28 May 1985, Series A no.94], paragraph 68)."

22. Counsel submitted that the petitioner's marriage had been contracted at a time when "the persistence of the marriage within the host state" was known to be precarious. The marriage had been contracted at a time when it was known to at least one of the parties that the decision relating to the application for asylum might be unfavourable. Accordingly the petitioner had to demonstrate to the adjudicator "the most exceptional circumstances". It appeared that no exceptional circumstances had been placed before the adjudicator. There had been no reference to such circumstances in the determination, nor during the submissions by the petitioner's counsel at the first hearing of the judicial review. It was not sufficient to rely upon the fact that the petitioner's wife had been born and brought up in the United Kingdom, and that she had a career in the United Kingdom. There was nothing in precedent or principle to suggest that such facts amounted to exceptional circumstances or that they gave rise to insurmountable obstacles. Counsel referred to Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, paragraphs 67-69; R. v Secretary of State for the Home Department, ex parte Balwant Singh [1997] Imm. A.R. 331, particularly the dicta at page 334 (always recognising that the marriage in the present case had taken place before the initial application for asylum had been refused, whereas in Balwant Singh the marriage had taken place after the application had been refused, but before the appeal had been refused); Vida McKenzie v United Kingdom, unreported, application number 26285/95 to the European Commission of Human Rights, particularly the observations of the Commission about the husband's awareness of his Ghanaian wife's "precarious immigration status and the probable consequential effects on his relation with any children resulting from a relationship with her of the enforcement of the deportation order" - an order which had been in existence at the time the parties met.
23. Counsel then referred to the case relied upon by the petitioner, Mahmood v Secretary of State for the Home Department [2001] 1 WLR 840, and in particular to the propositions set out by Lord Phillips at paragraph 55. In the present case, there was no indication of a "long-established family" as at the time of the adjudicator's decision. Nor was there any indication that anything had been put before the adjudicator demonstrating that it would be unreasonable to expect the petitioner's wife and child to follow him to Pakistan. Also there had been knowledge on the part of at least one of the spouses at the time of the marriage that the petitioner's immigration status was precarious. In such circumstances, in addition to the guidance given by Lord Phillips in the fifth proposition in Mahmood, the European jurisprudence (Ajayi and the other European cases referred to) made it clear that in order to succeed, the petitioner would have to be able to demonstrate exceptional circumstances.
24. In the present case, it appeared that no exceptional circumstances had been claimed. The bare fact of the marriage and possibly the expected child had been put forward. Those matters alone could not lead the adjudicator to view a refusal of the petitioner's application for asylum as a breach of Article 8 of the convention. It was beside the point to complain that the adjudicator had not gone through a mechanical narration of the factors outlined in paragraph 55 of Lord Phillips' judgement in Mahmood. Counsel submitted that where the only facts placed before an adjudicator were marriage to a United Kingdom citizen, a subsequent child, and a desire on the part of the couple to develop their life in the United Kingdom, the adjudicator was not obliged to say any more than he had done in paragraph 27 of his determination. He was not required to list, in a mechanical and exhaustive fashion, matters which had not been put before him either as evidence or as a submission: cf. dicta in Daljit Singh v Secretary of State for the Home Department, 2000 S.C. 219, pages 222-223. On the basis of the facts which were apparently put before the adjudicator (marriage to a United Kingdom citizen, a subsequent child, and a desire to remain in the United Kingdom) the petitioner was unlikely to succeed.
25. If there had been no error on the part of the adjudicator, there had been no error on the part of the IAT. Rule 18(7) of the Immigration and Asylum Appeals (Procedure) Rules 2000 permitted the IAT to grant leave to appeal only where (a) they were satisfied that the appeal would have a real prospect of success, or (b) there was some other compelling reason why the appeal should be heard. In relation to sub-paragraph (a), counsel submitted that there was no real prospect of success. In relation to sub-paragraph (b), if counsel for the petitioner was suggesting that a failure to give reasons was in itself "some other compelling reason why the appeal should be heard", counsel for the respondent submitted that the body adjudicating (i.e. either the IAT or the Court of Session) was entitled - unless advised otherwise by counsel presenting the appeal - to assume that the information or submission said not to have been mentioned in the adjudicator's determination had not in fact been put to the adjudicator. In this context, it was perhaps significant that rule 18(6) of the Immigration and Asylum Appeals (Procedure) Rules 2000 provided that the IAT "shall not be required to consider any grounds other than those included in that application." This provision marked a departure from the previous approach in R. v Secretary of State for the Home Department, ex parte Robinson, 1998 QB 929, in which the court held that, given the nature of the proceedings, all obvious and properly arguable points should be taken. It was not entirely clear what effect the new rule 18(6) had in relation to the European Convention on Human Rights 1950 (as distinct from the Geneva Convention and Protocol relating to the Status of Refugees 1951). Lord Emslie had found it unnecessary to decide that issue in Debrajit Kumar Saha, February 13, 2003 (unreported), paragraphs 11-13; cf. Ouseley J. at paragraph 37 of Orlenko v Immigration Appeal Tribunal, July 18, 2002 [2002] E.W.H.C. 1960 (Admin.) case number CO/1170/2002. In any event, reliance upon Rule 18(6) was not necessary for the respondent's argument.
26. In conclusion, counsel submitted that there had been no error on the part of the adjudicator, nor on the part of the IAT. The petitioner required to demonstrate either that his appeal had a real prospect of success, or that there was some other compelling reason why his appeal should be heard. He had not done so. The petition should be dismissed.

Reply on behalf of the petitioner

27. Counsel for the petitioner accepted that the onus lay upon the petitioner to demonstrate a breach of Article 8 of the convention. Counsel also accepted that the adjudicator could not be expected to carry out a mechanical narration and analysis of the evidence: cf. dicta of Lord Penrose, quoted in Daljit Singh v Secretary of State for the Home Department, 2000 S.C. 219, at page 223. But it was a question of balance and degree. The adjudicator had a duty to make sufficient findings-in-fact such as to give clear and comprehensible reasons satisfying the requirements set out in Wordie Property Co, Ltd. v Secretary of State for Scotland, 1984 S.L.T. 345. The few brief lines in paragraph 27 of the determination fell short of those requirements. Without the necessary findings-in-fact, it was impossible to know what had been before the adjudicator, and how it had been dealt with.
28. In response to questioning about any record of what had taken place before the adjudicator, counsel advised that the petitioner's case had been passed on to the present agents. The present agents' only source of information about what had happened before the adjudicator was in fact the adjudicator's determination. Other than the information contained in the determination, it was not known what had been placed before the adjudicator, or what the petitioner had said to the adjudicator. Counsel had been given certain ex parte statements. Counsel could also advise that about three weeks after the parties' marriage on 4 May 1999, the petitioner had made an application for leave to remain in the United Kingdom on account of the marriage. That application had been refused, it was not known why. Counsel also had some documents including pay-slips, confirming that the petitioner's wife worked as a sales adviser with British Telecom. But it was not known whether those documents had been placed before the adjudicator, or whether they had been referred to.
29. Counsel referred to McDonald, Immigration Law and Practice, page 294, footnote 5, which stated:

"The fact that a spouse, particularly the national of the expelling state, would have to give up a career is relevant in looking at obstacles to setting up family life elsewhere: Adegbie v Austria (1997) 90 D.R. 31, C.D."

The loss of a career was therefore a relevant factor which an adjudicator could be invited to take into account. However counsel could only advise that this reference had been found amongst the petitioner's court papers. It was not known whether the reference had been given to the adjudicator, or whether the proposition had been referred to in submissions.

30. Counsel reiterated that the determination, so far as relating to Article 8 of the ECHR, was so lacking in detail as to fall short of the Wordie test. That in itself was a compelling reason not to allow the adjudicator's decision to stand. The case should be referred back to the IAT for a full hearing.

Opinion

31. It was accepted, correctly in my view, that the onus lies upon the asylum-seeker and his advisers to place before the adjudicator any information or special circumstances relating to his private or family life which might bear upon his application for asylum, his need to remain within the United Kingdom, and any requirements to be met in order to satisfy Article 8 of the convention.
32. In the present case, counsel for the petitioner was unable to advise precisely what information or special circumstances had been placed before the adjudicator. Counsel was therefore unable to advise that the adjudicator had in his determination failed to mention matters which had been placed before him, either in evidence or in submission. The argument was simply that the adjudicator's ruling on the human rights issue was so brief and skeletal that the informed reader was left in real and substantial doubt as to what the reasons for his decision were, and what material considerations had been taken into account.
33. I am not persuaded by the petitioner's argument, for the following reasons.
34. Standing the lack of information about the materials and submissions placed before the adjudicator, it is my view that an informed reader is prima facie entitled to conclude that the adjudicator was presented with information restricted to the basic fact that the petitioner had married a citizen of the United Kingdom, and that he and his wife wanted to develop their family life together in the United Kingdom. If there were additional facts or submissions relevant to Article 8 of the ECHR which might have assisted the petitioner's application (see, for example, the guidance contained in paragraph 55 of Mahmood, cit. sup.; Balwant Singh, cit. sup., and the European case-law including Ajayi, Abdulaziz, and Vida McKenzie, all cit sup.), but these facts were not disclosed, or submissions made, that is a matter for the petitioner and his then agents. On the basis that the adjudicator was presented with the very basic information outlined above, he was in my view well entitled to deal with that information as succinctly as he did, and to reach the conclusion which he reached.
35. Secondly, I agree with counsel for the respondent that the adjudicator is not obliged to "narrate negatives" in his determination. The adjudicator is not in my view obliged to go through an exhaustive list of information which might have been put before him (but was not) nor is he obliged to record arguments, points or submissions which might have been taken (but were not): cf. the opinion of the Inner House in Daljit Singh v Secretary of State for the Home Department, 2000 S.C. 219. In the present case, counsel for the petitioner was unable to identify any information or submission which had been put before the adjudicator but had been wrongly left out of account. Nor was counsel able to identify any matters taken into account which should not have been taken into account. In these circumstances I am unable to accept that the adjudicator has been shown to have erred.
36. Thirdly, even if all the information presently available to the petitioner's counsel were now to be taken into consideration - namely that the petitioner entered the country on 19 December 1998, immediately claiming asylum; that in spring 1999, while his asylum application was being processed, he began living with a British citizen, and then married her on 4 May 1999; that he was hopeful at that time that he would be granted asylum; that the petitioner's wife became pregnant and gave birth to their child on 8 April 2001; that the petitioner's wife was born and educated in the United Kingdom, had lived in the United Kingdom all her life, and had an established career in the United Kingdom as a sales adviser for British Telecom - that information would not in my view result in a successful appeal. The petitioner and his wife were married at a time when the petitioner's application for asylum had not been decided. The petitioner had received no indication, official or unofficial, that his application was likely to succeed. The petitioner knew that if his application were to be unsuccessful, he would have to leave the United Kingdom. Accordingly the marriage took place at a time when the petitioner's immigration status was unresolved "such that the persistence of the marriage within the (United Kingdom was) from the outset ... precarious": Ajayi, cit. sup. Against that background, it was in my view necessary for the petitioner, in order to be able to present a stateable case founded upon Article 8 of the ECHR, to demonstrate "insurmountable obstacles" or "exceptional circumstances" such that it would be unreasonable to expect the petitioner's wife and child to follow him to Pakistan: cf. Mahmood, Ajayi, Abdulaziz, Balwant Singh, and Vida McKenzie, all cit. sup. The information provided in the course of the judicial review does not in my view demonstrate insurmountable obstacles or exceptional circumstances.
37. I am not therefore persuaded that the adjudicator erred. Nor am I satisfied that the IAT erred in refusing leave to appeal, there being neither a "real prospect of success" nor "some other compelling reason why the appeal should be heard" in terms of Rule 18(7) of the Immigration and Asylum Appeal (Procedure) Rules 2000. Accordingly the petition must be dismissed.

 

Conclusion

38. I shall sustain the respondent's first and second pleas-in-law, and dismiss the petition. I reserve all questions of expenses to enable parties to address me on that matter.