Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 98
P262/10	OPINION OF LORD BANNATYNE in the Petition of A.A. Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: ­­­­­­­­­­­­­­­­­________________

Petitioner: Forrest; Drummond Miller

Respondent: Webster; OSAG

16 July 2010

Background

[1] In terms of this judicial review the petitioner sought reduction of a decision by the respondent dated 4 November 2009, hereinafter referred to as "the challenged decision". In terms of that decision the respondent refused to grant the petitioner leave to remain in the UK. The petitioner further sought an order as set out in Paragraph 3(ii) of the petition, however, at the outset of his submissions counsel for the petitioner advised that this order was no longer insisted upon.

The material factual background to the challenged decision
[2] That the petitioner has been in this country for some time. However, the precise length of time he had been in this country was not a matter of agreement between the parties. He claimed to have been in the UK since 1994. He met Sokina Khatun, a UK national. They were married according to Sharia law in Aberdeen on 18 August 2001. That since very shortly after the said marriage the petitioner and Sokina Khatun have not lived together. She has lived in London. The petitioner has lived largely in Aberdeen and now resides in Glasgow. At the time of the challenged decision they did not live together. That on 20 April 2002, Sokina Khatun gave birth to a child, Atiya. The petitioner is the father of the said child although his name does not appear on the birth certificate of the said child. The petitioner has at no time lived in family with said child. He has had no real face to face contact with the said child. Said child has always resided with Sokina Khatun.

[3] On 26 February 2003, the petitioner submitted to the respondent an application for leave to remain in the UK on the basis of his marriage to a UK national. That on 15 December 2006 the respondent replied (see: 6/3 of process). She rejected the petitioner's application for leave to remain. She also rejected the petitioner's subsequent submission that he was entitled to leave to remain on account of the length of time he had spent in the UK. She served on the petitioner a Notice of Immigration Decision (see: 6/5 of process) and Notice to a Person Liable to Removal from the UK. It was accepted on behalf of the respondent that the immigration decision above referred to could have been appealed by the petitioner, however, he did not do so. There was following this decision sundry correspondence between the petitioner and the respondent in the course of which the respondent sought details about the length of time the petitioner had spent in the UK and his relationship with his wife and said child. There was then a further application by the petitioner for leave to remain in the UK. That application was refused by the respondent on 4 November 2009 and is the challenged decision. In the course of his decision the respondent considered whether the petitioner's Article 8 rights in terms of the European Convention on Human Rights would be infringed if he were removed and rejected this contention. That in terms of the challenged decision the respondent gave the petitioner no right of appeal.

The grounds of challenge

[4] (1) That the respondent had erred in law in not giving the petitioner a right to appeal against the challenged decision and

(2) Reading short, that the respondent in considering the petitioner's Article 8 ECHR Rights (his right to a private and family life) had approached and considered this in a manner which was Wednesbury irrational.

Relevant legislation

[5] Section 82 of the Nationality, Immigration and Asylum Act 2002 (hereinafter referred to as "the Act") deals with rights of appeal and the relevant part for the purposes of the present case provides inter alia as follows:

"(1) Where an immigration decision is made in respect of a person he may appeal ...

(2) In this part 'immigration decision' means -

(a) refusal of leave to enter the United Kingdom,

(b) refusal of entry clearance,

(c) refusal of a certificate of entitlement under Section 10 of this Act,

(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,

(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,

(f) revocation under Section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,

(g) a decision that a person is to be removed from the United Kingdom by way of directions under (Section 10(1)(a), (b), (ba) or (c)) of the Immigration and Asylum Act 1999,

(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971,

(ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave),

(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family)..."

Submissions on behalf of the petitioner
[6] The first branch of the submissions made on behalf of the petitioner can be stated fairly briefly. It was counsel's submission that the respondent's decision that the challenged decision was not an immigration decision in terms of Act, was wrong in law and based on a misunderstanding of Section 82(2)(d) and (e) of the Act. It was his submission that the decision fell within one or other of the said two sub-sections and was accordingly properly understood an immigration decision which gave the petitioner a right of appeal.

[7] Counsel for the petitioner recognised immediately that the weakness of that assertion was that at the relevant time the petitioner did not have leave to remain in the United Kingdom. However, he submitted I should not apply a strict construction to said part of Section 82. Rather it was his position that I should apply a more generous construction thereto in which I sought to discover the underlying spirit of this part of the Act. On that approach he submitted that it would be consistent with the broad thrust of this part of the Act that a person such as the petitioner was granted a right of appeal.

[8] In development of this submission he pointed to the reference in the Notice of Decision Refusal to Grant Leave to Remain (6/4 of process) that as a consequence of the challenged decision the petitioner was liable to be removed from the country (see: the fourth paragraph). He then referred me to Section 82(2)(g), (h), (ha) and (i). In terms of each of said sub-sections where a person is to be removed then he or she is given a right of appeal. By extension he submitted that it followed that on a proper construction (i.e. not based on a strict construction) the petitioner had a right of appeal in terms of either sub-section (d) or (e).

[9] There was a second distinct branch to counsel's argument under this head. In terms of this he pointed to 6/3 of process an earlier decision of the respondent in which the petitioner had been refused leave to remain. In particular he referred me to the following part thereof:

"You may appeal against this decision under Section 82 of the Nationality, Immigration and Asylum Act 2002 on the basis of one or more of the grounds of appeal contained within the attached IS 151B, Notice of Decision. You are entitled to remain in the United Kingdom whilst this appeal is pending."

(See page 3 of the said letter.)

[10] As I understood counsel's argument based upon the said passage in the respondent's decision letter it was as follows: First that the respondent was personally barred, having granted a right of appeal to the petitioner at this earlier stage in similar circumstances, from refusing to give him a right of appeal to the challenged decision and secondly that the granting of an appeal at that stage supported his contention that on a proper construction of the said part of the Act the petitioner had a right of appeal under either (d) or (e). The argument was that if granted leave to appeal where a similar decision was made, that cast light on whether on a proper construction he should have a right of appeal against the challenged decision. It showed that the purpose of this part of the Act was to grant appeals against decisions of a type such as the challenged decision.

[11] Turning to the petitioner's second ground of challenge counsel, in development of his argument that the respondent's approach to the issue of the petitioner's Article 8 rights had been Wednesbury irrational, submitted: That the respondent had failed in the positive duty which she owed to the petitioner to show respect for his family life. She had failed to take account of a matter to which she should have regard, namely: the appropriate degree of respect that should be accorded to family life. This submission was made under reference to Huang v The Secretary of State for the Home Department 2007 2 A.C. 167 and in particular the speech of Lord Bingham of Cornhill at 186F-H.

[12] The petitioner's counsel particularly relied on the following in the respondent's decision letter (6/1 of process) as supporting his contention that he had not shown the appropriate degree of respect for family life. In the course of that letter the respondent accepted that the petitioner had a wife and child. However, at page 2, paragraph 5 she said the following:

"Whilst you may have established a life in the UK it is not considered that your removal from the United Kingdom will amount to a breach of Article 8..." (emphasis added).

[13] Counsel submitted that the way in which this section of the letter was phrased, when taken in conjunction with the rest of the paragraph in which it was contained where in his submission the respondent dismissed out of hand the petitioner's marriage and his having a child, evidenced that the respondent was not showing positive respect for family life. Rather it was implicit in the said section of the letter that she was showing no positive respect for family life.

[14] He went on to argue that the respondent had further erred in her approach to the question of the petitioner's Article 8 rights in failing to consider properly whether the interference with his family life was proportionate to the legitimate public end sought to be achieved (see: speech of Lord Bingham of Cornhill in R (on the application of Razgar) v Secretary of State for the Home Department 2004 3 A.E.R. 821 at 836a to b.

[15] In elaboration of this argument he submitted that in approaching proportionality the respondent had failed to take account of the whole picture ie. all of the factors which contributed to the petitioner's family life. He submitted that in so doing the respondent had failed to take account of relevant and material factors.

[16] Under reference to 6/6 of process which was a lengthy letter from the petitioner to the respondent in which he sought to support his application for leave to remain the petitioner's counsel sought to set forth the factors which the respondent had failed to take account of.

[17] Counsel for the petitioner particularly referred to paragraphs (F) and (G) at page 4 of the said letter. In these paragraphs the petitioner set out the nature of his relationship with his wife. It was counsel for the petitioner's submission that the respondent had failed to take into account the nature of that relationship as set out therein.

[18] He also referred to page 3, paragraph (C) and page 4, paragraph (H) of the said letter in which the petitioner set out the nature of his relationship with his daughter. He again submitted that the respondent had failed to take account of the nature of that relationship when considering the issue of proportionality.

[19] In support of his submission that these were matters to which the respondent was bound to have regard, counsel relied on a decision of the European Court of Human Rights, namely: Boultif v Switzerland 2001 33 EHRR 50 1179. In that case it was held:

"the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed in Article 8(1) of the Convention. In the present case, the applicant, an Algerian citizen, was married to a Swiss citizen, thus, the refusal to renew the applicant's residence permit in Switzerland interfered with the applicant's right to respect for his family life."

[20] The Court in that case further established a series of guiding principles which a court should apply when considering the removal of a person from within its national borders and the issue of the infringement of that person's Article 8 rights arising from the removal. The Court in its Opinion at page 1180 stated that among other factors the court should have regard to:

"The length of the applicant's stay in the country from which he is going to be expelled; the nationalities of the various persons concerned, the applicant's family situation, such as the length of marriage; and other factors expressing the effectiveness of a couple's family life ... and whether there are children of the marriage, and if so, their age."

[21] It was his submission that the respondent had failed to have regard to certain of these guiding principles namely: The length of time that the petitioner had spent in this country; that he had a wife; and most importantly that he had a child.

[22] For the foregoing reasons counsel for the petitioner moved that I should reduce the challenged decision.

Submissions on behalf of the respondent
[23] Turning to the first leg of the petitioner's argument counsel for the respondent submitted that on a proper construction of the Act the respondent's challenged decision was not an immigration decision and there was accordingly no right of appeal available to the petitioner.

[24] His simple response to the petitioner's argument was this: He can't bring himself within sub-section 2(d) or (e) as the petitioner had no leave to remain to vary.

[25] As regards section 82 of the Act I had been asked by counsel for the petitioner to apply a liberal construction thereto and his position was that there was no room for such a construction to be applied to that section. He pointed to the fact that the section laid down a closely regulated set of circumstances which gave rise to an immigration decision and thus a right of appeal. That structure he submitted militated strongly against a liberal approach to the construction of Section 82 as had been urged upon me by counsel for the petitioner.

[26] He contrasted sub-sections (a) to (c) of Section 82(2) which are unqualified i.e. (have no reference to variation of a position) with (d) and (e) which referred to variation of an already existing position. This highlighted the necessity for there to be leave to enter or remain before sub-section (d) or (e) could be brought into play.

[27] So far as the arguments put forward on behalf of the petitioner based on the terms of 6/3 of process he pointed to the following paragraph at page 2 of the said letter which immediately preceded the paragraph relied on by counsel for the petitioner:

"You have now been served with Form IS151A informing you of your immigration status and liability to detention and removal. Your application is refused and a decision has been made to remove you from the United Kingdom by way of directions under Section 10(1)(a), (b) or (c) of the Immigration and Asylum Act 1999 under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971/given by virtue of paragraph 10A of Schedule 2 to the Immigration Act 1971."

[28] He submitted that it was that decision to remove which gave the petitioner a right of appeal at that time. That right of appeal arose from the terms of Section 82(2)(g) of the Act. The right of appeal which the petitioner had been given at that time (which he did not exercise) in no way could be said to give the petitioner a right of appeal against the challenged decision. Given that he never appealed this earlier decision the removal directions remain extant.

[29] As regards the petitioner's Article 8 argument his general submission was that there was no demonstrable error in the approach of the respondent.

[30] He said that the broad contention on behalf of the petitioner had been that the respondent had not considered three factual matters in relation to the petitioner's Article 8 position, namely:

1. The period of time which he had spent in the United Kingdom.

2. The issue of his relationship with his wife and

3. The issue of his relationship with his child.

[31] His brief answer to the first of these issues raised by counsel for the petitioner, namely that the respondent had no regard to the period of time which the petitioner had spent in the UK was to refer me to the third and second last paragraphs on page 2 of 6/1 of process. It was his position that in the said paragraphs the respondent expressly took account of that particular factual matter. He made no further submissions in relation to this issue.

[32] In deciding whether the respondent had had proper regard to his marriage and child when considering the issue of the petitioner's right to family life, counsel submitted that it had to be closely examined what information had been put forward by the petitioner to the respondent regarding his relationship with his wife and child.

[33] So far as the position regarding his relationship with his wife was concerned, the documents put before the respondent showed as follows: It appeared that this was a type of marriage namely a Sharia marriage in Scotland which was not recognised by Scots law. The parties apart from perhaps a very short period of time immediately following the marriage had not lived together. Since then they had lived a considerable distance apart, the petitioner living in Aberdeen or Glasgow and his wife in London. No particularly compelling reason was put forward in the documents as to why they had not lived together for this extended period of time and why they were not presently living together. It was put forward that for some reason the petitioner required to remain in Aberdeen, however, no detail was given as to what this reason was and it was noticeable that the petitioner now no longer resided in Aberdeen, but rather lived in Glasgow. Accordingly when whatever problem in Aberdeen had ended he had not thought fit to go and live with his wife in London.

[34] As regards the child the documentation before the respondent was to the effect that the petitioner was not registered on the child's birth certificate as the father. He had at no point lived in family with the child. He had had no face to face contact with the child.

[35] It was counsel's submission that the respondent had had regard to all the material before her including the above when considering the question of the petitioner's Article 8 rights. Not only had she had regard to that information, she had gone further and asked for additional material from the petitioner which might, if submitted by the petitioner, have been helpful to his application in what counsel described as a questionable case.

[36] As regards the petitioner's Article 8 position, the respondent dealt with this issue in two paragraphs at page 2 of the decision letters 6/1 of process and these were in the following terms:

"Whilst you may have established a family life in the United Kingdom it is not considered that your removal from the united Kingdom will amount to a breach of Article 8 as you have not submitted any evidence to indicate that your marriage is still subsisting or that (you) have face to face contact with the child Atiya. For these reasons, it is believed that your removal from the United Kingdom will not necessitate any interference with your rights to family life under Article 8.

In addition to considering your family life, your rights under Article 8 to private life have also been considered. It is noted that you have previously been in employment in the United Kingdom, but you have never been given leave to remain permitting you to work here and this has been taken into account. Whilst it is accepted that during your time in the United Kingdom you may have established a private life, it is considered that any interference can be justified in the circumstances of your case."

[37] From the foregoing, counsel for the respondent submitted that the respondent had dealt with:

1. whether family/private life existed;

2. whether it would be interfered with by his removal; and

3. on an esto basis considered the issue of proportionality.

[38] Counsel went on to submit that if there was any error in the respondent's initial approach, and he did not accept that there was such, she had dealt with that error when it came to her appraisal of the question of proportionality. He went on to submit that an applicant may have a family life but no interference is caused to that family life by his removal. On looking to the respondent's decision regarding the petitioner, that was the view to which the respondent had come. She had given reasons as to why she had reached the conclusion that no such interference would arise. The reasons given are: that there was no evidence that as at the date of the decision, the marriage in any real sense, subsisted or ever in a real sense has subsisted. In addition, it was noted that there was no face to face contact with the child and that if removed, the petitioner could still phone her.

[39] Accordingly, although there was a marriage and a child of that marriage, the family life in reality he submitted amounted to this, that the petitioner has remained in Aberdeen while his wife and child are in London and he did not connect in any meaningful way with either of them.

[40] Turning to look at the issue of proportionality, counsel began by referring to Lord Bingham's speech in R (Rasgar) v Secretary of State at page 836 paragraph 20, letter g, where he says:

"In Secretary of State for the Home Department v Kacaj 2002 Imm AR 213 at 228, paragraph 25 the Immigration Appeal Tribunal ... observed that -

'although the (Convention) rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate.'

In the present case, the Court of Appeal ... had no doubt that this overstated the position. I respectfully consider the element of overstatement to be small. 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."

[41] Having regard to the above statement, it was counsel's position that in the instant case, proper control of immigration must weigh particularly heavily and that there was nothing which had been put forward by the petitioner which caused him to fall into the category of exceptional cases identified by Lord Bingham. He thus submitted that the decision by the respondent was proportional. It was his position that in seeking to balance these matters, the only factors on the petitioner's side of the balance were a marriage not recognised in this county; where the parties did not live together, had in fact never lived together for a material time and where there was little, if any, contact between the child and the petitioner. It was his position that such factors could not outweigh proper control of immigration and that the respondent's decision was clearly proportional. There was nothing irrational in this decision.

[42] For the above reasons he moved that I should refuse to grant the order sought in the petition.

Discussion

[43] Turning to the first leg of the argument put forward on behalf of the petitioner: that the respondent had erred in failing to give the petitioner a right of appeal, I had no difficulty in preferring the submissions made on behalf of the respondent to those made on behalf of the petitioner.

[44] There were two branches to this part of counsel for the petitioner's argument. First, that on a proper construction of Section 82(2)(d) or (e) the challenged decision was an immigration decision and there was thus a right of appeal which arose therefrom.

[45] It is my clear view that, on a proper construction of Section 82 of the Act, the challenged decision of the respondent is not an immigration decision. It is my clear view that on a proper construction of Section 82(2)(d) and (e) the challenged decision is not a decision in terms of either of the said sub-sections. It was submitted on behalf of the petitioner that in arriving at a proper construction of the said section, the court should apply a liberal or generous interpretation, looking for the spirit of the section. It was submitted that the court should not apply a strict construction to the section.

[46] The approach to construction contended for by counsel for the petitioner is one which is not open to the court. Section 82 of the Act defines in considerable detail what is meant by "an immigration decision". Parliament has closely regulated what is to amount to an immigration decision and has accordingly closely regulated what decisions in this area of immigration law may be challenged by means of a right of appeal. Against that statutory background, what is an immigration decision must be based on a strict interpretation of the language in Section 82. To do otherwise in my view, would be to act in a way which would clearly run counter to the intention of Parliament.

[47] Turning to look at sub-sections (d) and (e), these being the sub-sections within which the petitioner's counsel submitted the challenged decision properly fell, I hold, without difficulty, that the challenged decision cannot fall within either of said sub-sections. The reason for that is that both sub-sections refer to a decision to vary a person's leave to enter or remain in the UK. If the person at the time of the decision does not have leave to enter or remain in the United Kingdom, as is the case with the petitioner, then the challenged decision of the respondent cannot be said to amount to a variation or a refusal to vary that position. There was therefore nothing which could be varied by the respondent at the time of the challenged decision as the petitioner had neither leave to enter or remain in the UK at that time.

[48] I am confirmed in my view that the foregoing is the correct construction of Section 82(2)(d) and (e) when I turn to look at sub-sections (a)-(c) and contrast these provisions which are unqualified in their nature with sub-sections (d) and (e) which are qualified by reference to variation, thus showing that it is essential for the petitioner to bring himself within the ambit of either sub-sections(d) or (e) to show that at the relevant time, he had leave to enter or remain in the UK. He concedes that he did not have such leave at the relevant time. Thus he cannot bring himself within the said sub-sections.

[49] As regards the second branch of the argument under this head as put forward by counsel for the petitioner, I reject the submission that some sort of personal bar operated against the respondent arising from the terms of the letter 6/3 of process relied upon by counsel for the petitioner in the course of his submissions. As I understood the argument, it was suggested that because said section of the letter set forth that the petitioner had a right of appeal, it followed that the respondent could not now say that the petitioner did not have a right of appeal against the challenged decision.

[50] This argument of counsel for the petitioner in my judgement was misconceived in that it did not have regard to the fact that in terms of the letter 6/3 of process, a decision was made to remove the petitioner from the United Kingdom by way of directions in terms of Section 10(1) of the Immigration and Asylum Act 1999 etc. It was that decision which gave the petitioner a right to appeal under Section 82(2)(g) of the Act.

[51] To remove by means of direction, is a wholly different matter from the decision made by the respondent in terms of the challenged decision. As such, it can in my judgement, not form any basis for a personal bar argument and I accordingly reject the petitioner's argument in terms of this branch of his submissions.

[52] Nor do I believe that the decision to give a right of appeal in terms of 6/3 of process in any way supports an argument that the proper construction of sub-sections (d) and (e) would entitle the petitioner to an appeal following the challenged decision. Rather the decision in terms of 6/3 of process, if it throws any light on the proper construction of sub-sections (d) and (e), tends to support the respondent's contention. It highlights why the petitioner does not have a right of appeal in terms of the challenged decision, namely: that the decision to remove him has already been made and there was therefore no reason for the respondent to make such an order at the time of the challenged decision. It emphasises that Section 82 sets out in considerable detail a series of discrete decisions which are defined as immigration decisions from which there is a right of appeal and that decisions which fall outwith that rigidly defined series do not give rise to a right of appeal.

[53] I accordingly for the above reasons reject the petitioner's submissions under his first ground of challenge.

[54] Turning to the second branch of the petitioner's argument, namely: that the way the respondent had approached consideration of the petitioner's Article 8 rights was flawed in that it was irrational, again I had no difficulty in preferring the respondent's submissions under this head to those made on behalf of the petitioner.

[55] Article 8, according to the undisputed jurisprudence imposes two duties on member states relative to family life, namely: to refrain from unjustified interference with a person's right to family life and secondly, a positive duty to show respect for family life.

[56] It is in relation to the positive part of the duty that it was argued that the respondent had failed.

[57] In my view, there is no substance in this contention in that the respondent has taken into account all of the factors she required to have regard to. She has in my judgement had regard to the whole picture which was presented to her on the petitioner's behalf.

[58] There were a number of factors, which the respondent had to have regard to when considering the petitioner's Article 8 rights as summarised by counsel for the respondent in the course of his submissions:

[59] First, the relationship with the wife and child. The respondent in 6/1 of process clearly has regard to the petitioner's relationship with his wife and his child. These two issues are referred to specifically in the last two paragraphs of page 1 and in the first paragraph of page 2 of 6/1 of process. These were the two principal factors which were being relied on by the petitioner in relation to the issue of respect for his family life.

[60] In the next three paragraphs at page 2 of 6/1 of process, the respondent sets out in some detail, the efforts which had been made by the respondent to obtain further information from the petitioner which might have tended to support his claim in relation to the establishment of his family life by potentially bolstering the nature and extent of his relationship with his wife and his daughter. They also set out the information which had been supplied by the petitioner in response thereto.

[61] It seems to me that in light of the above the respondent has fully considered the issue of family life by having regard to the particular matters which were put forward by the petitioner in this regard. In addition, she has gone further and sought further relevant information from the petitioner. This in my judgment shows proper respect for family life.

[62] The use of the phrase "whilst you may have established a family life in the UK..." in 6/1 of process is a little unfortunate in that it could perhaps on its own suggest a lack of respect for family life. However, when the terms of the decision letter are looked at as a whole and the substance of what the respondent says is had regard to, I am clearly of the view that proper respect for family life has been shown by the respondent.

[63] The respondent then goes on in 6/1 of process to ask herself in terms of R (Rasgar) v The Secretary of State for the Home Department the questions which are identified at pages 835 and 836 paragraph 17 thereof as being the initial questions which she should ask herself, namely: will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private/family life and, if so, will it have consequences of such gravity as to potentially engage Article 8?

[64] The respondent on considering those questions holds that there would be no interference or, in any event, not of such gravity as to engage Article 8. In my view, she was entitled to reach that decision. I am unable to identify any relevant consideration which she has failed to take account of in reaching that view, or any consideration which she has had regard to which she should not have had regard to. She gives full reasons for her view that there would be no such interference, namely:

1. that there was no evidence that the petitioner's marriage was subsisting or had in any real sense ever subsisted; and

2. there was no evidence that he had ever lived in family with the child and no evidence that he had had face to face contact with his child.

[65] Given the evidential position which was before her, in relation to what was described in Boultif v Switzerland as the effectiveness of a couple's family life the respondent was, in my judgement, entitled to hold that there would be no interference with the petitioner's family life by a decision to remove him. This was on the evidence before her, a family life which was not effective taking into account the guiding principles set forth in Boultif. I am unable to identify anything perverse or irrational in the way that the respondent has reached the conclusion that the removal of the petitioner would not interfere with his family life.

[66] The respondent then in the next paragraph in 6/1, considered separately the issue of the petitioner's private life, including the length of time he has spent in this country. For the purpose of this she had regard to his asserted date of arrival. She makes a decision arising from her consideration of that issue and again I can see nothing irrational or perverse in the decision which she arrives at. Again, I am unable to identify any factor of relevance which she has failed to consider in relation to this issue or any irrelevant factor she has had regard to.

[67] The respondent then turns to consider, as submitted by counsel for the respondent, on an esto basis i.e. assuming that an interference with family or private life had been established whether any such interference would be proportionate to the legitimate end of maintaining effective immigration control. In so doing, she has considered what the family life in reality amounts to. For the reasons I have earlier given, I am clearly of the view that she was entitled in the circumstances of this case to hold, having regard to the various factors regarding the nature and extent of the petitioner's relationship with his wife and child, that the family life lacked effectiveness. She has taken into account the petitioner's length of time in this country. She has then weighed that against the legitimate end identified of maintaining effective immigration control and holds that any interference would be proportionate.

[68] In my view, this was a decision that she was well entitled to arrive at, particularly when regard is had to the speech of Lord Bingham in R (Rasgar) v Secretary of State at paragraph 20 to which I was referred by counsel for the respondent. In my view, there is nothing in the information which was presented by the petitioner that suggests that he would fall into the small minority of exceptional cases identified by Lord Bingham. Rather the information before the respondent clearly points to the opposite conclusion that he would not fall into such an exceptional group.

[69] In my judgement, the respondent considered all of the factors which were relevant and none which were irrelevant when considering the issue of proportionality. The decision which she arrived at is rational. It cannot be said to be irrational or perverse on the information before her. The decision was well within the bands of a reasonable response.

[70] For these reasons I reject the second branch of the petitioner's argument.

Decision

[71] For the foregoing reasons, I have rejected the petitioner's arguments under both heads. I accordingly sustain the respondent's third plea-in-law; repel the petitioner's pleas-in-law and refuse the order sought, namely the reduction of the challenged decision.