AB (Jamaica) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Thomas,Sir Peter Gibson |
| Judgment Date | 06 December 2007 |
| Neutral Citation | [2007] EWCA Civ 1302 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2006/2030 |
| Date | 06 December 2007 |
[2007] EWCA Civ 1302
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
TH 00339–05
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sedley
Lord Justice Thomas and
Sir Peter Gibson
Case No: C5/2006/2030
Mr J Adler (instructed by Messrs Ikie) for the Appellant
Mr P Patel (instructed by the Treasury Solicitors) for the Respondent
Hearing date: Tuesday 23 October 2007
Convention rights and departmental policies
For a good many years before the Human Rights Act 1998 required it, departments of state had sought to ensure that delegated legislation and policies for which they were responsible were consistent with the United Kingdom's international obligations under (among other treaties) the European Convention on Human Rights. One well-known area in which this happened was that of rules and policies governing the removal of persons who had established some degree of family life here and so might well come within the ambit of art. 8(1) of the Convention even though they had no entitlement to remain here under the Immigration Rules. While such removal might therefore be lawful for the purposes of art. 8(2), it would not necessarily be proportionate. So it was sensible (and today it is necessary) that discretionary decisions outside the Rules should be made within a Convention-compliant policy framework. A policy also helps, importantly, to ensure that like cases are treated alike.
This is why a Home Office policy, with accompanying instructions, was formulated for dealing with persons who, though liable to removal or deportation, had married a person settled here. Depending on the circumstances of the particular case, such people were not necessarily to be removed or deported. The version of the policy upon which this appeal has been argued – DP 3/96 – was not the earliest but was adopted before the passing of the Human Rights Act 1998 and, perhaps surprisingly, has remained in place since. It now, however, coexists with article 8 of the Convention which, by virtue of s.6 of the Human Rights Act, the state is required to respect.
Art. 8 of the Convention provides:
RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The following parts of the policy are directly or indirectly relevant to the present case:
Policy
2. Paragraph 364 of the Immigration Rules explain that deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained here without authority but that all the known relevant factors must be taken into account before a decision is reached. These include:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connection with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence;
(vii) compassionate circumstance;
(viii) any representations.
3. Where persons do not qualify for leave to remain under the Immigration Rules and are to be considered for deportation, or where they are illegal entrants liable to removal, but seek nevertheless to remain on the basis of marriage in the United Kingdom, the following paragraphs of this guidance apply.
4. Where enforcement action is under consideration and the offender is married to someone settled here a judgment will need to be reached on the weight to be attached to the marriage as a compassionate factor. Caseworkers should bear in mind that paragraph 284 of the Immigration Rules, which sets out the requirements to be met for an extension of stay as spouse of a person present and settled in the United Kingdom, specifically requires, among other things, a person to have a limited leave to remain here and to have not remained here in breach of the immigration laws, in order to obtain leave to remain on that basis. Therefore, the fact that an offender is married to a person settled here does not give him/her any right to remain under the Rules.
Marriages that pre—date enforcement action
5. As a general rule, deportation action under 3(5)(a) or (3)(5)(b) (in non-criminal cases) or illegal entry action should not normally be initiated in the following circumstances (but see notes below):
(a) where the subject has a genuine and subsisting marriage with someone settled here and the couple have lived together in this country continuously since their marriage for at least 2 years before the commencement of enforcement action;
and
(b) it is unreasonable to expect the settled spouse to accompany his/her spouse on removal.
Notes
(i) In this instruction, “settled” refers to British citizens who live in the United Kingdom or to other nationals who have ILE or ILR here.
(ii) In considering whether or not, under paragraph 5(b) above, it would be unreasonable for a settled spouse to accompany the subject of enforcement action on removal the onus rests with the settled spouse to make out a case with supporting evidence as to why it is unreasonable for him/her to live outside the United Kingdom. Factors which caseworkers should take into account, if they are made known to them, will include whether the United Kingdom settled spouse:
(a) has very strong and close family ties in the United Kingdom such as older children from a previous relationship that form part of the family unit; or
(b) has been settled and living in the United Kingdom for at least the preceding 10 years; or
(c) suffers from ill-health and medical evidence conclusively shows that his/her life would be significantly impaired or endangered if he/she were to accompany his/her spouse on removal.
(v) This notice contains guidance as to the approach to be adopted in the generality of cases but it must be remembered that each case is to be decided on its individual merits and, for instance, a particularly poor immigration history may warrant the offender's enforced departure from the UK notwithstanding the factors referred to above.
Criminal convictions
6. In cases where someone liable to immigration control has family ties here which would normally benefit his/her under paragraph 4 above but has criminal convictions, the severity of the offence should be balanced against the strength of the family ties. Serious crime which are punishable with imprisonment or a series of lesser crimes which show a propensity to re-offend, would normally outweigh the family ties. A very poor immigration history may also be taken into account. Caseworkers must use their judgment to decide what is reasonable in any individual case.
Children
7. The presence of children with the right of abode in the UK (see note below) is a factor to be taken into account. In cases involving children who have the right of abode, the crucial question is whether it is reasonable for the child to accompany his/her parents abroad. Factors to be considered include:
(a) the age of the child (in most cases a child of 10 or younger could reasonably be expected to adapt to life abroad);
(b) serious ill-health for which treatment is not available in the country to which the family is going.
Marriages that post-date enforcement action
8. Where a person marries after the commencement of enforcement action removal should normally be enforced. The criteria set out in paragraph 5 do not apply in such cases. ….
This policy was in place in 2004, when the Home Office refused the application, and in 2005 when the immigration judge's decision was promulgated. There has been no suggestion that its predecessor, DP 2/93, was materially different for present purposes. It will be more useful, therefore, to continue to focus on DP 3/96. It can be seen that the policy is not quite coextensive with the Convention right.
First, the effect of the policy is to discount the bare fact of a breach of immigration control if what I will call a qualifying marriage exists – that is to say a genuine and subsisting marriage to a person settled here, entered into at least two years before the initiation of any enforcement action. By using the word “normally”, however, the policy does not necessarily exclude a history of deception or evasion. Article 8(2), by contrast, permits the state to base its justification of the disruption of private or family life on any breach of immigration control.
Secondly, however, the onus which §5(b) of the policy places on the settled spouse to demonstrate undue hardship has no analogue in art. 8(2). The proportionality of a prima facie breach of the Convention right is to be gauged objectively on whatever evidence is available. So far as there is a burden of proof in relation to proportionality, counsel for the Home Secretary accepts that it rests on the state.
The implications of this mismatch can be more usefully examined in the context of the case before the court than in the abstract.
The present case
The appellant, a Jamaican citizen, came to this country in September 1998, when she was 32 years old, on a 6-month visitor's visa....
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