Scottish Court of Session Decisions

Hady, Re Judicial Review [2003] ScotCS 42 (21 February 2003)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD McEWAN in the Petition of DR. ZAKIRIYYA HADY Petitioner; for Judicial Review of the act of the respondent in failing to consider a fresh application for leave to remain in the United Kingdom     ________________

 

 

Petitioner: Holmes; Skene Edwards, W.S.,

Respondent: Lindsay; H F Macdiarmid, Solicitor to Advocate General

21 February 2003

1. This petition seeks judicial review of a decision of the Home Office Immigration and Nationality Directorate contained in a letter to the petitioner's solicitor dated 5 September 2002. What is sought before me is a declarator that this decision in failing to consider a fresh application was both unlawful and unreasonable.
2. The matter arises in this way. The petitioner came to the United Kingdom from Egypt in 1992 as a student. He went first to University in England then came to Glasgow where he successfully studied for and obtained a Ph.D. His wife, who is Malaysian, came to Scotland in 1994 and has recently also obtained a Ph.D.. They married one another in 1995. Their first child was born on 6 December 1996 and is now a primary school pupil in Glasgow. A second child was born on 9 February 2001 and a further child is expected. In 1999 the petitioner applied for asylum relying on the Geneva Convention relating to the Status of Refugees 1951 as subsequently amended. The grounds of application alleged a well founded fear of persecution for political opinion. The claim was refused and removal directions set. He appealed and his appeal was refused by an adjudicator on 21 March 2002. Leave to appeal to the Immigration Appeal Tribunal was refused on 1 May 2002. Before me no issue arose out of any of these determinations.
3. What then happened was this. On 28 August 2002 the petitioner's solicitors wrote to the enforcement unit to say that the petitioner now qualified under a policy modification announced by the Under Secretary of State for the Home Department, Mr O'Brien on 24 February 1999 relating to family concession and long residence. I refer to this as "the O'Brien modification", and narrate it in more detail below. The Directorate the following month refused to consider this as a new application.
4. The O'Brien modification is in these terms:

"3.1 Whilst it is important that each individual case must be considered on its merits, there are specific factors which are likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who have children who have lengthy residence in the United Kingdom. For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not usually proceed with enforcement action in cases where a child was born here and lived her continuously to the age of [seven] or over, or where having come to the United Kingdom at an early age, they have accumulated [seven] years or more continuous residence. However, there may be circumstances in which it is considered that enforcement action is still appropriate despite the lengthy residence of the child, for example in cases where the parents have a particularly poor immigration history and have deliberately seriously delayed consideration of their case. In all cases the following factors are relevant in reaching a judgment on whether enforcement action should proceed.

- the length of the parents' resident without leave; whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;

- the age of the children;

- whether the children were conceived at a time when either of the parents had leave to remain;

- whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk;

- whether either of the parents has a history of criminal behaviour or deception.

3.2 It is important that full reasons are given making clear that each case is considered on its individual merits".

5. The representation made by the petitioner in the letter of 28 August was in these terms:

"We would also draw to your attention that the Applicant and his Wife have, in fact, two children born in the United Kingdom and, indeed, have been resident for sufficient period of time to now qualify for the Family Concession Policy announced by the Under Secretary of State for the Home Department, Mr O'Brien, on 24 February 1999.

Obviously, taking (sic) in light of the foregoing, you will appreciate that the children have remained in the United Kingdom primarily under the leave of their Mother, who retains a Legal Visa status up until the present time. Furthermore, account must be given to our Client's right to respect for private and family life as secured by Article 8 of the European Convention for Human Rights. Obviously, the right to respect for private and family life is ultimately a question of fact, with the object of family life being that family relationships are allowed to develop normally and are allowed to be sustained. Article 8 of the Convention imposes a duty on the State, not only to refrain from interfering with an individual's private and family life, but also a duty to act positively to protect that private and family life. Any derogation from Article 8(1) must be sustainable with reference to the derogation contained within Article 8(2). It must be shown that any removal is in accordance with the Law, is for a legitimate aim, as is necessary in a democratic society. We would further submit that The Secretary of State must in interpreting the Convention approach our Client's situation as a straightforward balancing exercise with equal weight to be given to each side according to the individual circumstances of the case. The decision of the Secretary of State must pass the test of proportionality with the consequence that if the Secretary of State fails the test of proportionality, then the Secretary of State would ultimately make a decision which is in breach of the Convention.

We would respectfully submit therefore that to attempt to remove Dr Hady from the United Kingdom would result in a breach of his right to respect for private and family life as secured by the Convention and furthermore that he and his family should, in fact, be allowed to benefit from the concession policy. You will obviously be aware of the Policy Directive dated 19 April 1999, where your goodselves confirmed that the Concession Policy applies to all enforcement cases, i.e. where one or both parents are subject to removal, either by deportation or as illegal entrants".

6. The letter itself is No. 7/5 of process.
7. In refusing this further representation the respondents on 5 September wrote in the following terms (No.7/6 of process):

"The Secretary of State is aware that your client has his asylum appeal heard on 5 February 2002 before an independent adjudicator and at that appeal he raised Human Rights grounds. As his acting solicitors at that time you will be aware that at that appeal hearing Mr Hady sought to rely on only Articles 2 and 3 of the ECHR.

In considering your representations the Secretary of State is aware that your client has previously been through the one-stop appeals system. This means that your client was required under the provisions of the 1999 Act to mention any and all of the grounds that he wished to rely on at appeal.

Consequently, a new decision will not be taken if your client's arguments are founded on circumstances which the Secretary of State has already rejected, and/or the adjudicator at your client's appeal did not accept. Nor will a new decision be taken if your client's human rights arguments are based on new issues which could have been raised earlier. It is clear that the information your client now seeks to rely on could and should have been raised at his appeal hearing, indeed it is odd that your client has not previously raised this issue given that he now attaches such weight to it.

It is noted that no evidence has been supplied in support of your latest submission, and in such a case the Secretary of State would normally expect to see some supporting evidence to accompany the representations. As your client could have raised this at appeal, and also no evidence has been supplied, a new decision will not be taken in this case".

8. The argument for the petitioner ran thus. The refusal to entertain the family concession application was not a decision and in any event required proper reasons. It was on any view Wednesbury unreasonable and a breach of Articles 6 and 8 of the Convention (respectively, a fair and impartial tribunal and respect for family life). The policy modification was not set in stone at seven years residence, and a lesser period would suffice. It was conceded that the first child was not yet seven years old. The petitioner had made no filibuster and had been legally here for many years. He had not gone to ground. He and his wife were both educated, in good health and could work. They were model citizens and posed no security risk. The children could speak only English and had never been to Egypt. The petitioner had not been back to Egypt. They had substantial grounds to think the application would succeed and the respondent should not have refused to consider it. The fact that children older than seven could be excluded from the policy meant that children under seven could be included.
9. With regard to Article 6, by refusing to consider the application, the respondent showed he was not a fair and impartial tribunal. He had in effect cut out the petitioner's right to go back to the Adjudicator and then the Appeal Tribunal. It had to be accepted that the present point could have been raised before, but now it was more appropriate. He referred me to Singh 2002 S.C.119.
10. Article 8 dealt with the right to a family and private life. He had long residence and established links in the United Kingdom. Whether they had a prospect of family life in Egypt was not a sound reason to impose the Immigration control policy on them. There was no strong reason to uproot them. He referred me to R v Home Office ex parte Jago [2000] INLR 501.
11. For the respondent, Mr Lindsay invited me to sustain his third plea. What was done here was both lawful and reasonable.
12. Immigration itself was a branch of the Royal Prerogative and vested a discretionary power in the Secretary of State to favour persons even though they would not qualify for entry in the United Kingdom. A recent example of someone allowed entry who did not qualify was the American boxer Mike Tyson. He was allowed to fight in Glasgow in spite of having a criminal record in the USA. On 24 February 1999 a Policy statement was made and then people had legitimate expectations ("the O'Brien modification"). The Policy simply did not apply to the petitioner. None of his children had seven years residence and there was no discretion to go below seven. That meant that the petitioner had no legitimate expectations. The application letter of 28 August (No. 7/5) would lead a reader to conclude that the petitioner had a child who had been resident for over seven years. That was not true and the seven year rule was absolute.
13. The respondent had taken a decision on the new application and was entitled to refuse to consider it. That was a reasonable response. The hearing before the Adjudicator (No. 7/1 of process) was, under and in terms of the "One Stop" procedure under the Immigration and Asylum Act 1999. At that hearing reliance was placed on Articles 2 and 3 of the Convention (Right to Life: Inhuman and Degrading Treatment). There was no reason why matters relevant to Article 8 could not have been raised.
14. In any event the respondent's letter (No. 7/6 of process) gave clear reasons for the decision taken, viz, the Article 8 point should have been taken before the Adjudicator and no reason had been stated why the Family Concession point had not been taken earlier nor had any evidence been provided to back up the new claim now. It would have had the same validity in 2001 as it had now. The relevant child was under seven at both dates.
15. Counsel then referred me to various sections of the 1999 Act. He said that the petitioner could still attempt to appeal to an adjudicator under section 65 of the Act. However, in view of the earlier decision he would contravene the provisions of sections 74 and 76 which, read short, would preclude a claim on the new grounds since they should have been mentioned the first time and there was no reasonable excuse for the failure (see section 74(4) and (7) and section 76(2) and (3)(a) and (b)). That applied to both the Policy and Human Rights points. The problem was highlighted by section 73 which would effectively allow the respondent to stop the further appeal by issuing a certificate under section 73(2). However, none of these things had yet happened.
16. Counsel then made two points about Article 6. The petitioner had not been denied access to the system. A decision on his application had been made even if that decision was "not to make a decision". Section 65 procedure was still open. However, Article 6 does not apply to Immigration which contained no civil rights or obligations. He referred me to Maaouia v France 33 EHRR 42, and Singh cit.sup. at page 132. As for Article 8 that was a matter for the Secretary of State to decide and not for the Court to consider on its merits. He had not considered it on its merits and that was a reasonable thing to do in view of what had happened. There was no need for a fresh decision.
17. What then do the authorities tell me? Jago was a case concerning a Malawi boy aged 14, and put in issue the length of his stay in the United Kingdom. He had come here in 1990 and had lived with his grandparents here ever since (a period of 8 years). The policy adopted by the Secretary of State was not to uproot a child who had spent seven years here without a strong reason. It was accepted, that to say he could have an effective life in Malawi in the future was not a strong reason to uproot the child. This case is not in point here because the child had lived in the UK for more than seven years. That has not happened here with any of the children. Also the words "strong reasons" which appear in that part of the policy relating to children, are not in the policy quoted to me which relates to "..... enforcement ... against parents who have children .....".
18. Singh also does not seem to me to help the petitioner. It concerned whether an adjudicator was a fair and impartial tribunal (not a point taken before me). What the case does tell me albeit obiter is that the Lord Ordinary was of the opinion that Article 6 did not apply to matters of this nature. He relied (132/3) on Maaouia to which I now turn. The applicant was Tunisian. He came to France and married. He was then sentenced to a long term of imprisonment for armed robbery. On his release he was ordered to be deported. After sundry other procedure he sought to regularise his immigration status and eventually complained about the delay in obtaining recession of an exclusion order made against him. Article 6 was put in issue. By a majority the Court held that in such matters Article 6 had no application as no "civil right" was involved.
19. What tests then am I to apply. The petitioner says the failure to consider is susceptible to judicial review as being Wednesbury unreasonable. That raises the initial question of whether the letter No. 7/5 is a fresh application or not. The letter begins by saying that certain things were to be "representations" and ends by talking about "this application". The reply letter No. 7/6 has treated it as "representations" only and I do not think the respondent can be faulted for that approach. A second question arises as to whether the respondent failed to consider it. In my view he did not. The letter 7/6 is a careful and measured response and gives a number of reasons for what is a decision to refuse to entertain it. It refers to the earlier hearing and the requirements of the "one stop" procedure. It asserts (correctly) that the Human Rights points now raised could have been raised earlier and that the family concession policy point could and should have been raised earlier. No explanation for this failure is given. It is plain that the respondent is of the opinion that there has been no material change of circumstances and no new facts emerging. He also points out that the petitioner has supplied no evidence for this latest submission.
20. On the assumption that this was not a new application then a refusal to consider is susceptible to judicial review if the tests are met. What has to be shown is that the respondent took account of some irrelevant matter or failed to consider some relevant matter. It may also be reviewed if no reasonable officer in the Directorate could ever have reached the view taken. In my view these tests are not met here. It is plain from No. 7/6 that the officer considered the family concession point and did so against the statutory background of the one-stop procedure which clearly contemplates that all relevant points should be taken in the one application (Act cit.sup. sections 74 to 76). That is a correct approach to the law. He has considered what is relevant. It was not argued that he had taken account of irrelevant matters or that the decision itself was one no reasonable officer could have taken.
21. Upon the strict terms of the petition that is sufficient to dispose of the case. However, as wider arguments were presented I must deal with these. It was said that the Family Concession policy applied here because of the qualification introduced for children over seven years. Even they can be excluded in certain circumstances. It followed, so ran the argument that children under seven can be included. In my view that is false reasoning. In the first place it does not follow in logic, or in reasoning by analogy. It also involves reading words into the policy which are not there. In my view the Family Concession policy simply does not apply here and in making their decision the respondents are entitled to be of that opinion. They were so in argument before me and although the letter 7/6 does not expressly make the point it deals with it correctly for the other reasons mentioned in paragraph 5 (failure to raise it earlier).
22. What then if the letter 7/5 is a fresh application. For the reasons already given I am of the opinion that the respondent did consider it and make a decision which could not be said to be Wednesbury unreasonable.
23. What then is the relevance of Article 6 of the Convention? In my view it has none and for two different reasons. In the first place if the petitioner is claiming that his letter 7/5 is a new application, then the decision on it is susceptible to a section 65 appeal. That step has not been taken but is still open. Accordingly the letter 7/6 has not foreclosed further procedure and there is no denial of access to the appeal system. Whether any attempt to appeal would have any prospect of success is quite another matter. I suspect that if it were tried the respondent would issue a section 73(2) certificate.
24. More fundamentally, I do not think reliance can be placed on Article 6 in proceedings like this. Maaouia is a decision of the Highest European Court and I am obliged to take note of relevant Strasbourg jurisprudence. I propose to follow what was laid down in that case and this effectively prevents the petitioner raising Article 6.
25. That leaves Article 8. It is not for me to consider that on its merits. The respondent decided that he could not consider it as it should have been raised earlier. Whether the letter 7/5 is a mere representation or a fresh application his decision on this point is not susceptible to review for the reasons already given.
26. Accordingly I will repel the petitioner's first plea-in-law and sustain the respondent's plea number three.