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Aslam, Re Judicial Review [2004] ScotCS 61 (09 March 2004)

OUTER HOUSE, COURT OF SESSION

OPINION OF LORD McEWAN

in the petition of

MOHAMMED ASLAM

Petitioner;

For

Judicial Review

________________

Petitioner: Govier; Andersons, Glasgow

Respondent: Stewart; H F Macdiarmid, Office of the Solicitor to Advocate General

9 March 2004

[1] I begin with a summary of the petitioner's immigration history.

[2] He came to London from Pakistan in March 2000 on a transit visa status. I was told that he believed his onward travel was to have been to Antigua. The transit status should have allowed him to leave London airport to stay in a hotel for 24 hours if he was unable to travel onwards the same day. I was told that he had come to London with "an agent to whom he had paid money to arrange the flights and who had 'the tickets'". The agent had left him at the airport. He stayed there for six hours then went directly to Glasgow where he had a brother. Precisely how all this happened was not told to me. He could speak no English. There he remained until his later arrest as an absconder. He was never interviewed then.

[3] On 13 March 2000 he lodged an application for leave to remain on the general grounds of political victimisation (I shall call this the "political application"). He then disappeared and for reasons that are unclear to me the political application did not lapse. He should have attended for interview but did not. Before me, it was claimed he had not been told of it. At that time his lawyer was a Dr Khan in Manchester (No 4/2 of process). In the Summer of 2002 he engaged Glasgow agents (Atuahene Sim & Co) to act for him (see No 4/5 of process). On 23 July 2002 (Letter No 7/4 of process) the respondent refused him permission to stay. The letter is signed by Mr Ahmad. On 12 September 2002 he married a Scotswoman (No 6/1) and on 24 September his solicitors intimated that to the Immigration Authorities. He then changed his agents to those now acting (Plancey & Co. See No 7/9) and on 12 November 2002 made a different application to remain on the grounds of the marriage. (I shall call this "the first marriage application". An examination of that application reveals mention of a child since benefit was being paid to his wife. (I was told later she had two children).

[4] An adjudicator heard his appeal on the political application in Glasgow on 19 November and Mr McDonald's Decision refusing the appeal was dated 10 December and promulgated on 16 December (see No 7/7 of process). Account was taken of the marriage. Thus the political application had failed. Leave to appeal was sought (see 7/8), but was refused by the Immigration Appeal Tribunal on 21 January 2003.

[5] That left the first marriage application alive. Earlier on 18 June 2003 (No 7/10) his agents asked for a progress report and for the return of passports. His wife wished to go abroad on holiday. Then on 20 June (No 7/11) the first marriage application was withdrawn. Sundry correspondence followed about the passport. (Nos 7/12 to 7/14 of process). Then on 21 August the petitioner lodged a second marriage application in similar terms (No 7/15 and 16). The Home Office refused that second application (the decision taker was a Mr Devlin) on 25 August 2003 (See No 7/17). This refusal has brought the matter before me. Before moving on I should note that there is no mention of any children in the second application (No 7/16). This application also resulted in certain Sheriff Court proceedings. The refusal of this application is in these terms:

"The Secretary of State has laid down guidelines for dealing with marriage applications from overstayers (a document commonly referred to as DP3/96). These guidelines state that it will normally be appropriate to consider granting leave to remain, exceptionally, on the basis of a marriage if the Secretary of State is satisfied that:

i. the marriage is genuine and subsisting; and

ii. that it pre-dates the service of an enforcement notice by at least two years; and

iii. that it is unreasonable to expect the settled spouse to accompany his/her spouse on removal.

Your client's case does not fall within this general rule.

In your client's case, his marriage on 12/09/02 does not pre-date by two years the service of notice of liability to removal and would not normally be grounds for allowing him to remain. Notwithstanding the general policy the Secretary of State has considered whether it would be right to allow your client to remain but having considered all the circumstances of his particular case has concluded that there are insufficient compassionate circumstances to justify a concession on the grounds of the marriage. The Secretary of State considers that it would be reasonable to expect both parties to have been aware that your client's precarious immigration status was such that the persistence of their marriage within the United Kingdom would, from the outset, be uncertain. Moreover, although your client's spouse is a British citizen, the Secretary of State believes that Mrs Heather Aslam could reasonably be expected to live in Pakistan.

In these circumstances the Secretary of State is not persuaded that the position of your client's family constitutes a sufficiently compelling reason for making him an exception to the normal practice of removing those who have entered the United Kingdom illegally.

The Secretary of State has also had regard to Article 8 of the ECHR, and he would reject any claim that removing your client to Pakistan will amount to a breach of this article. Article 8 does not extend to a general obligation on the United Kingdom to respect the choice by married couples of a country of their matrimonial residence and to accept non-national spouses for settlement in the United Kingdom. Your client is to be removed from the United Kingdom at public expense and his spouse is free to accompany him, also at public expense if necessary, should this be her wish. For the reasons given above, it is the Secretary of State's view that it would be reasonable for his spouse to accompany your client. In these circumstances there would be no interference with your client's family life. Equally your client's wife can remain in the United Kingdom and support any application he makes abroad to return in the proper manner as the spouse of a person settled here. The Secretary of State considered that your client should not benefit from his breach of the immigration control by avoiding the need to obtain an entry clearance. To allow your client to remain here and thereby circumvent the need for entry clearance would benefit him against those who comply with the law. This is supported by the case of Mahmood (Queen's Bench Division 1/12/00).

In reaching this decision the Secretary of State has balanced your client's rights against the wider rights and freedom of others and the general public interest. Specifically, the Secretary of State has weighed up the extent of the possible interference with your client's private/family life, against the legitimate need to maintain an effective national immigration policy. With respect to the latter consideration he has taken into account your client's failure to observe the immigration regulation. In light of the circumstances of your client's particular case, the Secretary of State considers that his actions are proportionate to the social need being fulfilled. He does not therefore accept that the decision to proceed with your client's removal from the United Kingdom would breach Article 8."

[6] I was referred to a number of authorities which I list and cite here only for convenience viz. Boultif v Switzerland [2001] 33 EHRR 50; Mahmood v Secretary of State for the Home Dept. [2001] Imm AR 229; Amrollahi Denmark (Unreported) 11 July 2002; Abdadou v Secretary of State for the Home Department 1998 S.C. 504; Ajayi v U.K. (unreported) (1999) 27663/05 ECHR; McKenzie v U.K. (unreported) (1997) 26285/95 ECHR; Beldjoudi v France 14 EHRR 801; Secretary of Sate for the Home Department v Isiko [2001] Imm. A.R. 291; Ahmed v Secretary of State for the Home Department, 2001 S.C. 705; Nowkoye v Secretary of State for the Home Department, 2002 SLT 128; Poku v U.K. (unreported) (1996) 26985/95 ECHR; Sanchez-Hoyos v Secretary of State for the Home Department (unreported) 19 March 2002, Lord Menzies; Shahid, Petitioner, (unreported) 15 May 2003, Lady Paton; S.N. and J.A. v Secretary of State for the Home Department (unreported) 6 November 2003, Lord Johnston; Singh v Secretary of State for the Home Department (unreported) 10 February 2003, Moses J.; R. (T.U.) v Secretary of State for the Home Department [2003] Imm AR 288. Some other cases were also mentioned under reference to the above where these cases had been referred to in the opinion.

[7] I now move to consider the arguments addressed to me by counsel.

[8] Mr Govier maintained that the decision in No 7/17 of process should be reduced as being incompatible with the petitioner's rights under Article 8 of the European Convention on Human Rights 1950 (the right to family life). To remove the petitioner would be an interference with this right to family life and it could not be justified under Article 8(2). Counsel founded strongly on the case of Boultif v Switzerland and he quoted extensively from paragraphs 39 and 48 of that decision. He maintained that it set forth the correct guidelines and it was for the Secretary of State to come up with a reason for the interference. To force his wife to go with him to Pakistan would cause her severe problems, and the respondent ought to have been aware of that. She was born in England but lived in Fife. She had two children aged 16 and 10 who lived with her and the petitioner. (Counsel then presented an argument about whether the respondent ought to have enquired or known about the state of knowledge of the wife concerning her husband's precarious immigration status when she married him. Wisely after a time he expressly abandoned the point).

[9] Mr Govier stressed the seriousness of the situation for foreign wives in Pakistan and referred me to the case of Mahmood v Secretary of State quoting on pages 247 to 250. That case set a higher test ("....insurmountable obstacles....") than in Boultif ("... seriousness of the difficulties..."). He next referred me to Amrollahi v Denmark at paragraph 41.

[10] Counsel accepted, as he had to, that none of these matters were ever raised before Mr Devlin. He said, however, that the well-known political problems of Western women in Pakistan should have been considered. He referred me to No 6/4 of process (Foreign and Commonwealth Office Travel Advice) and said that the respondent should have considered it or its equivalent. Reasons about such advice should have been given. In other words he should have taken account of his own advice and if he did not do so that was unreasonable. The respondent asked himself the wrong question on the degree of difficulty for a spouse going to Pakistan. He referred me to the decision of Lord Eassie in Abdadou v Secretary of State especially at 514. For this reason his decisions were both unlawful and disclosed an error in law.

[11] Mr Stewart then addressed me and invited me to sustain his pleas and dismiss the petition. He emphasised the fact that the petitioner's status was that of transit which showed he had no initial intention of coming to the U.K. other than for 24 hours. That sat uneasily with lodging the political application, not attending for interview and then absconding until arrested two years later. Given the date of the marriage and its immediate notification on the political application, it would be difficult to hold that the wife had no knowledge of the petitioner's precarious immigration status. When the second marriage application was made an action was raised in the Sheriff Court at Glasgow seeking interdict. (See Nos 7/19 to 24 of process). There was an unsuccessful attempt to appeal to the Court of Session and further to the House of Lords. It was all along clear that the only return destination for the petitioner was Pakistan.

[12] Mr Stewart then asked me to look at the well-known guidance documents for marriage applications from people who have overstayed. It is conveniently known as DP3/96 and in this case is reproduced as 7/25 of process. Paragraph 5 was not in point but paragraph 8 was. That put the onus on the petitioner. The respondent had followed his own guidance document and the relevant jurisprudence. He was not in breach of Article 8. An examination of Mahmood at page 246 showed that there were two distinct types of European jurisprudence on this subject and paragraphs 43/9 gave illustrations of cases where the position of the husband was precarious; and paragraphs 50 to 54 were the other type of case where the husband had previous family life in the state concerned. The present case fell clearly into the first strain whereas Boultif and Amrollahi were in the second strain.

[13] As to the first strain the authorities were conveniently summarised by Laws J.J. in Mahmood at pages 246/8. Ajayi was a case where a Nigerian woman had twice contracted marriage when facing deportation. It was pointed out that in such a case it would only be in the most exceptional circumstances that the removal of the non-national spouse would constitute a violation of Article 8. Similarly in McKenzie it was reinforced that where immigration is concerned Article 8 did not impose a general obligation on States to accept a non-national spouse for settlement in that country. These cases essentially followed the earlier case of Poku where these principles were set out.

[14] A second stream of cases showed a variety of situations where family life was already established before any question of deportation arose. The usual reason for a need to deport was crime. Beldjoudi was one such example where long prison sentences had prompted a deportation order in the face of the appellant having a long established family life. In relation to the innocent spouse having to leave the country the Court merely mentioned that she would encounter "difficulties". Poku was not referred to and the case contained mention of a number of other well-known cited cases where the same point arose (eg.Berrehab v Netherlands (1989) 11 EHRR 322), Boultif also fell into this second category. Again the reason for expulsion was a criminal offence in face of years of family life. The Court found an Article 8 violation. This case had not set any new tests. There was no issue of immigration. Poku was not mentioned. This case was the same as Beldjoudi. The tests set out in these cases have been consistently applied in Scotland. In Ahmed the facts disclosed a marriage after a deportation order, and an application of the policy under DP3/96 was upheld. In the present case this petitioner could always apply from abroad to return as the spouse of a British citizen. Nwokoye was to the same effect. Other examples of the application of the principles could be seen in Sanchez-Hoyos and Shahid and also S.N. and J.A. Singh, a very recent case, also followed Mahmood and well expressed (para 4) the test of precariousness and attempted (para 12) to define what could be an insurmountable obstacle. It was a high test. R. v Secretary of State also applied the Mahmood test. That case inter alia stresses the importance of knowledge of a precarious asylum status. Also, and importantly, the Court can only consider review on the basis of the material which the Secretary of State himself had before him when he made the decision. I was then shown the Remand Notices which for present purposes do not affect the argument (See No 7/25 of process, paragraph 5).

[15] Counsel then dealt with No 7/17 of process which is Mr Devlin's decision. It was plain that the history had been properly considered as well as the parties' state of knowledge. Article 8 was fully considered and the correct tests in Mahmood applied. Living in Pakistan was also dealt with. It could not be argued that Mr Devlin had failed to take account of No 6/4 of process (Travel Advice from the Foreign and Commonwealth Office) since that document post-dated his decision. In any case its advice was qualified and all decision takers are aware of advice about Pakistan. The decision taker was not bound to look for negatives. The onus was on the petitioner to suggest them. In this respect counsel was critical of the approach of the Lord Ordinary in Abdadou at 514/5 and supportive of the remarks of Lady Paton in Shahid on this point. In the present case there was a finding that it would be reasonable for the petitioner's wife to accompany him abroad and live with him in Pakistan. There was no such finding in Abdadou which was in any event quite different on its facts. Being aware of Mahmood the decision taken here asked and properly answered the correct questions in relation to what was reasonable.

[16] I do not intend to undertake an extensive review of all the cases cited to me since many of them are single judge decisions and I have already undertaken this task in one of the cases cited to me.

[17] It respectfully seems to me that there are two different streams of authority in the European cases on Article 8. That article, 8(1), begins with a general right to respect for family life. Any interference is justified under Article 8(2) on certain grounds stated there. It is beyond argument that to preserve the integrity of immigration control is a legitimate aim within that qualifying Article as is the policy in terms of DP3/96. The prevention of crime is another qualification, and as can be seen some of the cases deal with that. It is also beyond doubt established by the cases that Article 8 does not impose a general obligation on States to respect the choice of residence of a married couple or to accept the non-national spouse for settlement in that country. Against these principles a judge considering an immigration judicial review will have to consider the reasons given by the decision taker against the immigration history. That history may range from being exemplary, to dishonest (as seen in R. (Tu) v Secretary of State etc to downright deplorable as in Isiko [2001] 1 A.R. 291. Clearly the worse the history the less likely is the Court going to exercise any discretion in favour of such an applicant. The present case falls somewhere in the middle. There is still no satisfactory explanation for what happened at Heathrow and why the petitioner disappeared for two years.

[18] I am also satisfied that at judicial review I can only review the decision on the basis of what was before the decision taker. That is important here because of reference to No 6/4 of Process. I do not think it would be open to me to look at matters not before the decision taker although in at least one case there is some suggestion of that. In my opinion it was for the petitioner to have put forward all matters he wished considered to the decision taker. The final matter I have to consider is what test to apply where there is a long resident spouse with British nationality. It seems to me there, that there are two differing tests depending on the nature of the case. With all this in mind I look at some of the decisions.

[19] Abdadou was an immigration case. The petitioner was an Algerian national who entered the U.K. illegally in 1992. He remained, and seemed always to find work. When he came to Glasgow he met his wife when he regularly bought a subway ticket from her in the ticket office at Govan station. They married in 1996. In October 1996 he applied for leave to remain. His application was refused in 1997. One of the reasons given was that the marriage was too recent to qualify under DP3/96. Judicial review was granted largely on the basis that the decision had failed to give any weight to the marriage. However, from 514 onwards there are obiter remarks to suggest what the decision taker should have considered about Algeria and the problems there. He appears to have considered Foreign and Commonwealth advice not before the decision taker. This was done in the face of the petitioner's wife not giving any reasons why she could not go and live in Algeria.

[20] I have some difficulty with this approach since it seems to me to verge upon a rehearing by someone not trained in immigration matters. I would not myself take such an approach. The same kind of point faced Lady Paton in Shahid; again an immigration case involving a marriage. The marriage was contracted before any decision was made on his immigration request. The request was turned down and very brief reasons given. It appeared that no exceptional circumstances were placed before the adjudicator. In my view the Lord Ordinary sets out the current tests in paragraphs 34 to 37. In particular she stresses that an adjudicator is not obliged to "narrate negatives". There had been no attempt to show problems of living in Pakistan. I do not read the last sentence of paragraph 36 as a decision by her on what she may have been told and narrates in paragraph 11.

[21] Singh before Moses J. is another hard case. The claimant who had already been refused asylum married a woman who had three children. The country of return was India with which she had no ties. She must have known of his precarious immigration status. The facts of the case were described as "sad and striking" (para. 13), but, following Mahmood the judge confirmed the adjudicator's decision and that of the I.A.T. to refuse the Article 8 claim. Any interference with Article 8 arose from the Couple's own choice to marry in the face of his precarious immigration status. I rely on what was said at para. 12 about what might be an insurmountable obstacle. None has been shown here.

[22] Mahmood is in my view the case which govern what I have to do here. The Master of the Rolls from page 244 onwards sets out the rules and principles which have to be applied in cases such as this. Although the case pre-dated the Human Rights Act a comprehensive review of the European cases was given. The policy in DP3/96 was considered and criticised (see page 232 para. 9). Some of the facts are like the present. The appellant entered the U.K. clandestinely in 1994 from Pakistan, applied for asylum in 1995 and was refused in 1997. A week before the refusal he married a British citizen. He lodged an appeal and a marriage application. Thereafter sundry complicated procedures took place to avoid the decision. There was no argument against the wife returning to Pakistan, no doubt because she originated from there. His return, however, might mean she had to be supported by the state. In the ensuing years children were born to them.

[23] The Master of the Rolls deals with the immigration cases of Poku and Abdulaziz and the rules laid down in them, concluding inter alia that in such cases Article 8 will only apply to the removal of an application when there are insurmountable obstacles in the way of a long resident spouse having to follow that applicant to the country of return. He then (para 50) contrasted this with a very different series of cases of which Beldjoudi is an example. These cases have generally involved a non-national with very long residence who commits a crime and is to be deported. The right to continuance of family life is then subject to slightly different considerations. The test suggested was whether there might be real practical or even legal obstacles in the way of a spouse forced to accompany.

[24] Paragraph 55 sets out the six conclusions drawn and these are:

"(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 inference 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."

[25] Boultif was the case said to be the cornerstone of this application. To read it is to see the immediate contrast with the present facts. Boultif was an Algerian national who entered Switzerland in 1992, married a Swiss citizen in 1993 and in 1997 was imprisoned for robbery. In 1998 the Swiss authorities refused to review his residence permit. He complained under Article 8 in particular that his wife could not be expected to return with him to Algeria. The Court found a violation of Article 8 Pararaph 49 refers to a test of ".... the seriousness of the difficulties...." facing the spouse in the country of origin. That is a very different and lower test than the one applied in the immigration cases. It should also be noted that this case was not placed before the decision taker in the present case. Nonethless, it was said to me that Mr Devlin had asked himself the wrong question and imposed too high a test on Article 8.

[26] What then do I take from the argument and the cases.

[27] In the first place a number of points made to me were not before the adjudicator. In particular, the meaning and effect of Boultif was not put nor was any attempt made to emphasise and highlight the problems of taking a Scottish wife to Pakistan. The cases make it clear that the onus of putting all relevant points is on the applicant. In these circumstances it cannot be said that any decision taken without these matters in mind is flawed. Be all that as it may, I am satisfied that Mr Devlin did take account of the position of a wife in Pakistan. The decision itself makes that clear and it would be presumed that someone in his position would be seized of the necessary information about the subject. Of course he could not have taken account of No 6/4 of process, because of its date, but the reasons make it clear that the topic was considered by him. I have to consider what he did with the information before him. Lest any point arises about it, I do not take issue with the immigration history. It can be criticised as I have indicated but as the adjudicator makes no real point about it, it is not for me to resurrect the matter.

[28] Let me now deal with Boultif. It is quite clear from that case and the other cases which are non-immigration cases that very different considerations have to apply to Article 8. The facts have generally involved long residence and settled family life threatened by a prison sentence on one party. There is an absence of precarious status seen in the immigration cases. In that situation it is not surprising that a different lower test has been applied to the innocent spouse leaving to resettle. In my view this case and line of authority is simply not in point and had it been before the adjudicator I am sure he would not have followed it.

[29] However tempting it might have been to make an individual exception in this case the adjudicator could not have done so. No doubt to let this case through would not destroy the policy but fairness has to be applied across the board to this applicant and the many others who do legitimately qualify and wait their turn. It seems to me that very full and clear reasons have been given in the decision quoted earlier. The adjudicator has correctly identified and applied the policy set forth in DP3/96. On no less than three occasions he has addressed the question of the petitioner's family life and any return to Pakistan and he clearly had in mind the issue of "choice of matrimonial residence". The adjudicator referred to and relied on the case of Mahmood. In my opinion he asked himself the correct question, applied the correct tests and reached the correct decision.

[30] The petition presents a sad situation but for the wife it has been brought about by her entering a marriage when she knew of her husband's precarious status.

[31] In the result I will repel the pleas-in-law for the petitioner and sustain both pleas-in-law for the respondent. The petition will be dismissed.