Scottish Court of Session Decisions

Petitioner: Forrest; Drummond Miller, W.S.

Respondent: Drummond; Office of the Solicitor to the Advocate General

11 August 2006

Introduction

[1]               The petitioner is Ye Hung (otherwise Yeheng) Wu. His date of birth is 14 April 1973. He is a national of the People's Republic of China. The respondent is the Secretary of State for the Home Department.

[2]               The petitioner arrived in the United Kingdom on 19 October 2000. As appears from his Certificate of Registration (a copy of which is number 7/3 of process), he was granted leave to enter until 19 April 2001 on the basis that he would have no recourse to public funds, that work (and any changes) must be authorised, and that he would remain to study English as a foreign language in Cardonald College, Glasgow. On 16 April 2001, his leave to enter was continued on the same basis until 31 October 2002. On 12 November 2002 the petitioner was granted leave to remain until 31 July 2003, again on the same basis. Leave to remain was thereafter continued until 30 June 2004, again on the same basis. However in about October 2003 the petitioner met someone who was concerned in a company by name of First Management (GB) Limited and, as a result, First Management (GB) Limited, through an agent, Ms So Lin Lee of LSW Limited, applied to Work Permits (UK) (a department or agency of the Immigration and Nationality Directorate of the respondent) for permission to employ the petitioner. That application was approved, as is indicated by the letter from Work Permits (UK) dated 2 February 2004, number 6/3 of process. The letter states the length of the approval as being for 60 months and includes the following:

[3]               The petitioner began working as a chef in Jimmy Chung's restaurant at 401-405 Union Street, Aberdeen. On 14 June 2004 he married Aijun Zhang, a student of English language. Aijun Zhang is a national of the People's Republic of China. Like the petitioner, she is a speaker of Mandarin. It is averred in the petition that she has applied to the respondent for leave to remain in the United Kingdom.

[4]               On or about the day of his marriage the petitioner moved from Aberdeen to Glasgow. He began to work as a chef at Peking Wok, Stepps, Glasgow. His employer was not First Management (GB) Limited.

[5]               On 30 August 2004 the petitioner attended a police office where he advised an officer of his new address and the circumstances of his marriage. On a date which was either 31 August or 1 September 2004 (stated as 1 September 2004 in the note of interview, number 7/2 of process), the petitioner attended an office of the respondent. He was interviewed with the assistance of an interpreter. He is noted as having said that he was not working at Jimmy Chung's; that he was working at Sam's Shack, previously Peking Wok at 10 Dorlin Road, Stepps; that this establishment was owned by a friend; that he had set up business with his friend; that he did not know that this was not allowed; that he had invested £14,000 in the business; and that he understood that he was in breach of the conditions of his work permit.

[6]               Following the interview, an immigration officer, acting on behalf of the respondent, gave directions for removal of the petitioner from the United Kingdom to Beijing, in terms of powers under section 10 (1) of and paragraphs 9 to 10A of schedule 2 to the Immigration and Asylum Act 1999. The date fixed for removal was 20 September 2004. The petitioner did not however show up for the designated flight. A petition for judicial review was presented on his behalf on 23 August 2004 (the "first petition"). As is usual in such a situation, the respondent suspended the removal directions by administrative action in order to allow the first petition to be determined while the petitioner remained in the United Kingdom.

[7]               A first hearing of the first petition was fixed for 9 March 2005. On that day counsel appeared for the petitioner and moved that a Minute of Amendment be received. The motion was refused. The first petition was abandoned.

[8]               Consequent on the abandonment of the first petition, on 18 August 2005 an immigration officer gave directions for removal of the petitioner from the United Kingdom to Beijing, in terms of powers under section 10 (1) of and paragraphs 9 to 10A of schedule 2 to the Immigration and Asylum Act 1999. The removal date was fixed for 20 August 2005. On 19 August 2005 the present petition was presented on behalf of the petitioner. Consequently the respondent suspended the directions given on 18 August 2005.

[9]               The present petition makes no mention of the first petition. It is misleading in other respects. The Edinburgh solicitors acting on behalf of the petitioner in relation to the present petition are different from those who acted on his behalf in relation to the first petition. I take it that the same is true in relation to the instructing local solicitors. I assume that the petitioner's present legal advisers were unaware, until the lodging of Answers to the present petition on 11 July 2006, that the first petition had previously been presented. That fact, and the exiguous nature of paragraph 6 of the present petition (with its rather coy final sentence) indicate a remarkable lack of curiosity on their part, which can only partly be explained by the initial time pressures which I would accept that they must have been working under. On the other hand, I take it that the respondent, who I assume would get notice by virtue of his caveat, did not oppose the granting of a first order, as he might have done given the history of the first petition. I can understand that, at that stage, the solicitors acting for the petitioner might therefore consider that nothing further was required of them by way of investigation. Although the presentation and abandonment of the first petition is averred by the respondent in the Answers, it is not specifically founded on as a reason for dismissing the present petition and, accordingly, nothing has come to turn on the fact that there was a first petition which was abandoned. However, I would hope that it goes without saying that for legal representatives, who were fully aware of the position, to present a petition for judicial review on behalf of a client in circumstances where there has been a previous petition directed against essentially the same decision, which petition has been abandoned, and not to mention the first petition in the averments in the subsequent petition, would amount to an abuse of process.

[10]           The petition came before me for a first hearing on 13 July 2006. The petitioner was represented by Mr Forrest, Advocate. The respondent to the petition, the Secretary of State for the Home Department, was represented by Miss Drummond, Advocate.

[11]           Mr Forrest began by seeking leave to amend the petition in terms of Minute, number 12 of process, and to lodge additional productions. Neither motion was opposed and both were granted. I then heard argument which continued into the following day.

[12]           Mr Forrest explained that he sought declarator that the decision of the respondent dated 18 August 2005 to remove the petitioner from the United Kingdom, was unlawful, and for reduction of that decision. He presented three arguments in support of his proposition that the decision was unlawful: (1) that the petitioner had not, on a proper interpretation, breached the conditions of his work permit; (2) that, in any event, the decision represented an improper exercise of discretion by reason of a failure to have regard to relevant guidelines; and (3) that the order to remove the petitioner from the United Kingdom in circumstances where his wife was entitled to remain constituted a breach of the petitioner's right to respect for his family life, as guaranteed by article 8 of the European Convention on Human Rights. Mr Forrest developed these arguments as follows.

[13]           Mr Forrest's first argument depended on the meaning he attributed to "employment" where it appeared on the stamp applied to the petitioner's Certificate of Registration and dated 2 February 2004. In his submission, it was to be understood as "capacity in which someone is employed". The petitioner had not changed the capacity in which he had been employed. He had been employed as a chef in a Chinese restaurant in Aberdeen. He had then been employed as a chef in a Chinese restaurant in Stepps. Mr Forrest accepted that the "employment detailed below" in the letter from Work Permits (UK) dated 2 February 2004, number 6/3 of process, was specific to employment by First Management (GB) Ltd, trading as Jimmy Chung's at 401-405 Union Street Aberdeen but, so Mr Forrest said, the petitioner was entitled to take advantage of the discrepancy between the stamp on the Certificate of Registration and on the letter.

[14]           If, contrary to the first argument, the petitioner was taken as having breached a condition of his work permit, Mr Forrest asserted that this was not a wilful breach and, accordingly, the respondent should not have exercised the discretion conferred by section 10(1)(a) of the Immigration and Asylum Act 1999. Mr Forrest made reference to Immigration Rules 128 and 131 and a document headed "Aug/01 Immigration Directorates' Instructions" (the "Instructions"). Mr Forrest accepted that if it were simply a matter of the Rules, he could not argue that the exercise of discretion was unlawful but he founded on section 3 of the Instructions (headed "Leave to remain for work permit employment") and, in particular, paragraph 3.1 (headed "Key points") and bullet point 3, which provided that: "Caseworkers must satisfy themselves that: ...the applicant intends only to undertake the employment specified in the letter of approval and is capable of undertaking that employment". Mr Forrest referred to the decision of the Immigration Appeal Tribunal in Kausar v Entry Clearance Officer, Islamabad [1998] INLR 141.

[15]           Mr Forrest reminded me that the petitioner had married on 14 June 2004. His wife is currently permitted to reside in the United Kingdom. She wishes to continue to reside in Glasgow with the petitioner, as would the petitioner wish to reside with her. The petitioner's article 8 right to respect to family life is therefore engaged. Mr Forrest asserted that the decision of 18 August 2005 constituted an interference with his right to respect for the petitioner's private and family life but he accepted that for such interference to amount to contravention of the petitioner's article 8 right , it was for him to demonstrate that the interference was disproportionate. The test, which Mr Forrest took from the judgement of the Court of Appeal given by Laws LJ in Huang v Secretary of State for the Home Department [2006] QB 1 at 34C, was that "the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the [petitioner's] favour". Mr Forrest also referred to Shala v Secretary of State for the Home Department [2003] EWCA Civ 233, [2003] INLR 349; and Boultif v Switzerland (2001) 33 EHRR 1179. The factors relied on by Mr Forrest as making the case "so exceptional" were: (1) the length of the petitioner's stay in the United Kingdom - since 2000; (2) the length of time between the conduct founded on coming to the attention of the authorities and the decision complained of - from 31 August 2004 to 18 August 2005; (3) the open and "non-nefarious" way in which the petitioner has acted; (4) the knowledge of his wife at the time of his marriage that he had leave to remain; and (5) the couple's difficulty in cohabiting elsewhere.

Submissions for the respondent

[16]           Having first taken me through a chronology of events, prepared by her and agreed as accurate by Mr Forrest (subject to the addition of the uncontroversial information that the petitioner had attended at a police office on 30 August 2004) and then referred me to Macdonald's Immigration Law & Practice (sixth edition) where the work permit scheme is described at paragraphs 10.36 to 10.62, Miss Drummond responded to the three arguments in the order in which they had been presented.

[17]           As far as the first argument was concerned, it was Miss Drummond's submission that it was without substance. The petitioner admitted on interview that he had changed employer. He had changed the restaurant in which he worked. He had invested £14,000 as a partner. On a natural meaning of words this was a change of employment and, accordingly, as it had not been consented to by the Secretary of State, there had been a failure to observe a condition of the petitioner's leave to remain. If the submission advanced on behalf of the petitioner was correct then anyone subject to a work permit could take up employment with any employer anywhere in the United Kingdom without consent so long as they remained within the same occupation. If that were the case one would expect the stamp to say something different. Such an interpretation would also be contrary to the policy of the work permit scheme, as that was explained in Macdonald.

[18]           Turning to the second argument, Miss Drummond drew my attention to what had been put forward by Mr Forrest as a relevant guideline. It was not a statement of policy. It was part of a set of instructions issued to caseworkers processing applications. Importantly, the relevant application was for leave to remain for work permit employment where a work permit had previously been issued, that is an application for an extension of the relevant time limit. That much was clear from consideration of Immigration Rule 131, to which reference is made at the beginning of section 3. Accordingly, the part of the Instructions founded on by Mr Forrest did not relate to the making of a decision to remove, which was what was under challenge. Kausar was not in point.

[19]           In responding to the third argument, Miss Drummond began by observing that there were provisions that addressed the situation of a spouse wishing to remain in the United Kingdom on the basis of marriage. She referred me in particular to paragraph 284 of the Immigration Rules and to the policy document, DP3/96. However, special consideration under these statements of policy depended upon the applicant being the spouse of a person present and settled in the United Kingdom. The petitioner was not the spouse of a person who was so settled: paragraph 6 of the Immigration Rules. The petitioner's wife had an outstanding application for extension of stay. It had not yet been determined.

[20]           Turning to the contentions advanced by Mr Forrest, Miss Drummond did not accept that the decision here had interfered with the petitioner's family life. She submitted that there was little by way of averment to suggest why it was the petitioner's position that there would be interference but even if there would be interference, it was not disproportionate. The case law was settled. It was necessary to distinguish between cases where parties were lawfully in the United Kingdom, on the one hand, and cases where their immigration status was in some way precarious. In the second category of cases (where the present case belonged), it was only if there were insurmountable obstacles to the family living together could it be said that there had been interference with article 8 rights: Mahmood v Secretary of State for the Home Department [2001] Imm AR 229, followed by Lord McEwan in Mohammed Aslam Petitioner, 9 March 2004, unreported. Here, there was no insurmountable obstacle to the petitioner and his wife pursuing their married life together in the People's Republic of China. There had been no interference with their family life such as to contravene article 8. It was very difficult to mount an article 8 challenge where neither party to the marriage was settled in the United Kingdom. There was nothing here to make the case exceptional in the sense indicated in Huang. None of the factors relied on were exceptional in any way. Shala was a case on its particular facts. In this regard Miss Drummond referred me to MM (Art 8 - Shala - Delay) Serbia and Montenegro SG [2004] UKIAT00016. She also referred to Strbac v Secretary of State for the Home Department [2005] Imm AR 504.

[21]           In terms of section 10(1)(a) of the Immigration and Asylum Act 1999, a person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave. It was that power which was being exercised when an immigration officer gave directions for removal of the petitioner from the United Kingdom on 18 August 2005. The existence of the power depended on the petitioner not having observed a condition of his leave to remain. On behalf of the petitioner it was argued that the petitioner had not failed to observe a condition of his leave. It therefore followed that the immigration officer did not have the power that he purported to exercise. I had no difficulty in rejecting this argument. It depended upon looking at the terms of the stamp on the Certificate of Registration in isolation from the letter, number 6/3 of process, and in adopting a definition of the word "employment" which, in context, is simply wrong. Agreeing with Miss Drummond, I consider the natural meaning of "employment" to comprehend a relationship with a particular employer, in a particular capacity and (depending upon the nature of the capacity) in a particular location. On that view there is no question but that the petitioner had "change[d] employment", and had admitted having done so, when interviewed on or about 1 September 2004 (and, although this was not stressed by Miss Drummond, the petitioner had also stated, whether entirely truthfully or not, that he had "engage[d] in any business" in that he spoke to having invested money in the Stepps restaurant). My view as to what is the correct interpretation of "employment" is strengthened when reference is made to the letter, number 6/3 of process. That letter makes it clear that the permission is specific to a particular employer in a particular capacity at a particular location. Mr Forrest effectively accepted that, but he submitted that the petitioner was entitled to take advantage of what he said was a discrepancy as between the letter and the stamp. As I have attempted to explain, I do not see there to be any such discrepancy but, even if there were, in the absence of special circumstances (reliance by the petitioner or acquiescence by the respondent, for example) I do not see why one document should be preferred over the other, rather than them being read together. If this is a different point, I do not understand why the petitioner should be "entitled to take advantage of any discrepancy", as Mr Forrest had suggested. Mr Forrest certainly gave no explanation.

[22]           My view on the interpretation point is further strengthened by consideration of the objects of the work permit scheme, as it is explained in Macdonald. As appears from Macdonald at paragraph 10.36, the purpose of the scheme is to strike a balance between a need arising to recruit skilled persons from abroad and a need to protect job opportunities for resident workers. The mechanism is that an employer based in the United Kingdom makes an application for a named person to do a specific job. A work permit is not transferable to a different employer: Macdonald supra at paragraph 10.44.

[23]           Having regard to the terms of section 10(1)(a) of the 1999 Act, I accept that the power conferred is discretionary in nature in the sense that removal is not mandatory, even where the particular situation is not addressed in the Immigration Rules. Exercise of a discretion may be rendered unlawful by a failure to follow established guidelines: eg Secretary of State for the Home Department v Abdi [1996] Imm AR 148 at 157, cited in Kausar supra. Much of course depends upon the nature, provenance and status of what are stated to be the relevant guidelines, but there is no difficulty about the underlying principle: it is not lawful for an administrative decision maker, on the one hand, to adopt and publish a policy, and, on the other hand, to ignore it when it comes to making his decisions, even where that policy is of the nature of a concession. The whole work permit scheme can be regarded as an example of such a policy: see Macdonald supra at paragraphs 10.36 and 10.37. However, the principle has no application to the circumstances here. What is in issue is the decision, made by an immigration officer, to remove the petitioner following upon his failure to observe one of the conditions upon which he was allowed to remain in this country. The section of the Instructions to which I was referred by Mr Forrest, whatever the precise status of the Instructions (a matter that was unnecessary to explore), has nothing to do with making a decision to remove. Neither has Immigration Rule 131. Kausar does not advance the argument. The second argument is entirely without foundation and I reject it.

[24]           Mr Forrest, on behalf of the petitioner, contended that the decision of the immigration officer 18 August 2005 to remove the petitioner from the United Kingdom contravened the petitioner's rights under Article 8 of the European Convention on Human Rights because it was disproportionate interference with the petitioner's family life. I disagree.

[25]           Article 8 provides:

[26]           Clearly, the removal of a married person from the United Kingdom in circumstances where he and his spouse wish to remain there can amount to an interference with family life and clearly, although this is a separate question, such a removal can amount to a contravention of his Convention right not to have that family life interfered with. However, everything depends on the particular circumstances of the case and not every order for removal will have these consequences. An example of a case where it did not is Mahmood. In his judgement in that case Lord Phillips MR reviewed the then jurisprudence of the European Court of Human Rights and drew the following conclusions which he set out at paragraph 55 (supra at 249):

[27]           Mahmood has been consistently cited in the English courts since it was decided. Lord McEwan expressly followed it in Mohammed Islam (supra at paragraph 22). I propose to do the same.

[28]           Before going further, I would explain that for the purposes of the argument in this case I have assumed that the Article 8 rights of someone who is the subject of an order for removal may be contravened by the putting into effect of the order, irrespective of whether or not the immigration officer was aware or should have been aware of that person's domestic circumstances. In other words it is open to an applicant for judicial review to invite the court to make a judgement on the proportionality of a decision, having regard to effects of which the relevant decision maker may have been entirely unaware. While my assumption would seem to be consistent with the terms of section 6 of the Human Rights Act 1998 and I do not see this to be a point of any consequence in the present case, I heard no argument on it. That may be because I rather cut Miss Drummond off when, in the course of her submissions, she drew attention to the state of knowledge of the immigration officer. Here the immigration officer can be taken to have been aware that the petitioner was married because the petitioner advised the relevant authorities of that fact, but, as Miss Drummond pointed out, there is nothing averred to suggest that he knew anything more than that.

[29]           Mr Forrest referred to the decision of the European Court in Boultif but made very little of it (cf Macdonald supra at paragraphs 8.82 to 8.85 and 8.88 to 8.92) beyond commending the criteria set out at paragraph 48 of the Court's judgement (supra at 1187). Mr Forrest's approach was to adopt what appeared in paragraph 59 of Huang (supra at 34C) as the relevant test ("so exceptional on its particular facts") and then point to Boultif as indicating the sorts of facts that might make a particular case exceptional. That being so, I find it unnecessary to say very much about Boultif beyond referring to what appears in Huang supra at 27G to 28C and noting that the European Court's decision that there had been a contravention of the applicant's Article 8 rights proceeded on a finding that it was "practically impossible for him to live his family life outside Switzerland" (supra at paragraph 55).

[30]           Shala is a decision of the Court of Appeal. In its judgement the Court recognises that the maintenance of control over immigration is a legitimate objective which may justify interference with the right to respect for family life. This is a matter where deference will be due to a democratic state in that, primarily, it falls within the constitutional responsibility of the state rather than the courts. Nevertheless, the Court found that there was an exceptional circumstance which should have been taken into account by the Secretary of State but had not been and that was the four year's delay on the part of the Home Office (after "chivvying" by the applicant's solicitors) in getting round to dealing with the asylum application. As Miss Drummond said, although Shala has lent its name to category of cases where there has been delay, it is essentially a case on its facts.

[31]           I turn then to Huang. This is a judgement of the Court of Appeal, handed down by Laws LJ. It is a decision of three appeals from the Immigration Appeal Tribunal heard together in order that the Court of Appeal might determine on what is referred to as the "M* (Croatia) issue". This issue is named for a decision of the Immigration Appeal Tribunal in M* (Croatia) [2004] INLR 327. As is explained in Huang, the M* (Croatia) issue concerned the proper approach to be taken by an immigration judge (formerly an adjudicator) in an appeal where he is called upon to determine whether the Secretary of State's decision to remove the appellant from the United Kingdom (or, it may be, to refuse him leave to enter) is a disproportionate, and therefore unlawful, interference with the appellant's right to respect for his private and family life pursuant to Article 8 of the Convention. In Huang supra at 499F (paragraph 21) the M* (Croatia) issue is stated as follows:

"This issue involves a kaleidoscope of different facets, and it is necessary to proceed step by step. ... Here is the question: upon a statutory appeal to the adjudicator in which the immigrant claims that on the facts his removal would amount to a disproportionate and therefore unlawful interference with his rights under ... Article 8, is the adjudicator's assessment of proportionality limited to a review of the Secretary of State's decision (is the decision 'within the range of reasonable assessments of proportionality'?) or must the adjudicator decide for himself, on the merits, whether the removal would be proportionate or not? [Counsel] for all three appellants contends for the latter answer, [counsel for the Home Secretary] for the former. Her distinct submission was that if in any given case it was legitimate for the Secretary of State to strike the balance as he did, the adjudicator cannot for his part conclude that the decision was incompatible with the Convention even though he would himself have struck the balance differently; and by 'legitimate' she meant that the decision was indeed 'within the range of reasonable assessments of proportionality'".

The Court of Appeal answered the question by recognising that the adjudicator had an obligation to decide on the substantial question of whether the action appealed against involved a violation of the appellant's Convention rights, rather than the different question as to whether the decision appealed against fell within a permissible range of possible decisions on the part of the Secretary of State. Laws LJ said this, at 31E (paragraph 55):

"[In] the particular instances, in which the adjudicator is not in the least degree called upon to pass judgment on government policy...the adjudicators were not called on to decide whether any policy was proportionate to its legitimate purpose, nor, therefore, to pass judgment on government policy at all. Accordingly they were not required to enter into any field which distinctly lies within the constitutional responsibility of government. On the contrary, their duty was to see to the protection of individual fundamental rights, which is the particular territory of the courts (here the adjudicator), while policy is the particular territory of the elected powers in the State."

Laws LJ went on to notice the terms of the relevant statute and to consider the status of the Immigration Rules, made, as he explained, by the Secretary of State subject to parliamentary approval: Immigration Act 1971 sections 1 (4) and 3 (2) (and amended from time to time). He said this at 31G (paragraph 56):

"Here, the material policy is given first by the statutory requirement that persons who are not British citizens require leave to enter or remain in the United Kingdom; secondly and more particularly by the Immigration Rules, made by the Secretary of State subject to parliamentary approval. The Rules state the detail of immigration policy, and in doing so prescribe in effect which classes of aliens will in the ordinary way be allowed to enter the United Kingdom and which will not. The adjudicator has no business whatever to question or pass judgement upon the policy given by the Rules. In our judgement his duty, when faced with an Article 8 case where the would-be immigrant has no claim under the Rules, is and is only to see whether an exceptional case has been made out such that the requirement of proportionality requires a departure from the relevant Rule in the particular circumstances. If that is right, the importance of maintaining immigration control is a prior axiom of the debate before him. It is not at all the subject of that debate. There is no basis upon which he should defer to the Secretary of State's judgement of the proportionality issue in the individual case unless it were somehow an open question what weight should be given to the policy on the one hand, and what weight should be given to the Article 8 right on the other. In that case, no doubt, the adjudicator would have to address their relative importance. If he had to do that, we apprehend that he would be obliged to accord a considerable degree of 'deference' to the Secretary of State's view as to how the balance should be struck. But that is not the position. The adjudicator is not required to address the relative importance of the public policy and the individual right."

In paragraph 59 (Huang supra at 34A), Laws LJ identifies what it describes as the true position as follows (this was the passage founded on by Mr Forrest):

"The true position in our judgment is that the Human Rights Act 1998 and section 65(1) [of the Immigration and Asylum Act 1999] require the adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the [Immigration] Rules."

At the end of paragraph 60 (Huang supra at 34G) Laws LJ cites Lord Bingham's words in Razgar v Secretary of State for the Home Department [2004] 2 AC 368 at 390D:

"Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."

[32]           As I have already indicated it was a test derived from paragraph 55 in Huang that Mr Forrest set himself. I proceed upon the basis that he was correct to have done so. Mr Forrest accepted that he had no basis for his application in the Immigration Rules or policy DP3/96. Put bluntly, the petitioner has simply no right to be in the United Kingdom. He forfeited that by failing to comply with the conditions of his work permit. That is a given. However, it is also a given that the petitioner enjoys the protection of his family life against interference which is afforded by Article 8 of the Convention. Where the issue is raised on an application for judicial review or, indeed, otherwise, this court must consider whether Article 8 rights will be contravened by the decision under consideration, just as an immigration judge must do on an appeal. Whether there has been a contravention of the petitioner's Article 8 rights is a question of fact. In my opinion, in this case the petitioner's rights will not be contravened. I frankly do not see that the effect of the order to remove was an interference with the petitioner's family life. At the relevant time the petitioner had not long married a Chinese national and speaker of Mandarin with only very limited rights to reside in the United Kingdom. Nothing was put before me to explain why the couple should not both return to China and pursue married life together there. I was advised of no obstacle whatsoever in the way of their doing so. They may prefer to reside together in the United Kingdom. That preference is not protected by Article 8: Mahmood supra at 250A, and see also Strbac supra at 524. If I am wrong about that and the decision to remove did interfere with the petitioner's family life, it does not follow that there was necessarily a contravention of his Article 8 rights, but for there not to have been a contravention the decision to remove must have been in accordance with the law, in pursuit of a legitimate aim, and necessary in a democratic society. It is uncontroversial that the decision was in accordance with the law and in pursuit of a legitimate aim, that aim being the imposition of immigration controls. What Mr Forrest disputed is whether it was necessary in a democratic society. It is in order to assert that it was not that he appealed to the "imperative of proportionality". A decision, which would otherwise be unimpeachable is, he argued, disproportionate and therefore not necessary in a democratic society because "the case is so exceptional on its particular facts".

[33]           In my opinion, rather than being "so exceptional", the facts of this case are not in any way exceptional. While the petitioner has been resident in the United Kingdom since 2000, that has always been on a limited basis, first as a student, then by virtue of his work permit. Whether or not that deserves the description of "precarious", it was certainly conditional and therefore this is a case to which conclusion (5) in Mahmood applies. It would appear that the petitioner's move to Glasgow and the taking up of employment in breach of the conditions of his work permit seems to have been more or less contemporary with his marriage. The period between his marriage on 14 June 2004 and the date for which removal directions were initially fixed, 20 September 2004, was brief and, accordingly, so was the petitioner's experience of married life in the United Kingdom before it was interfered with. The delay between the respondent becoming aware of the petitioner's breach of the conditions of his work permit and the respondent taking action was similarly short. Whereas Mr Forrest concentrated on 18 August 2005 as the date of the second removal directions that was to ignore what had occurred during the previous year and why it had occurred. The petitioner having acted in an open and "non-nefarious" way is hardly an exceptional circumstance but to submit that the petitioner was entirely open in his dealings with the respondent, as Mr Forrest did, required the history subsequent to the dismissal of the first petition to be ignored. Mr Forrest asserted that the couple would have difficulty cohabiting elsewhere but, remarkably, his petition is silent on this matter and I did not understand what the difficulty might consist of. At best for the petitioner, none of the factors relied on by Mr Forrest, either in isolation or taken together, make the case exceptional and therefore the decision to remove disproportionate.

[34]           I shall dismiss the petition. I shall reserve all questions of expenses.