Aslam v Secretary of State for the Home Department [Court of SessionOuter House]
| Jurisdiction | Scotland |
| Judgment Date | 09 March 2004 |
| Docket Number | No 2 |
| Date | 09 March 2004 |
| Court | Court of Session (Outer House) |
Court of Session Outer House
Immigration - Judicial review - Human rights - Overstayer marrying Scotswoman and applying for leave to remain in United Kingdom - Whether refusal incompatible with petitioner's right to family life - European Convention on Human Rights and Fundamental Freedoms, Art 8
The petitioner entered the United Kingdom from Pakistan in 2000 on a transit visa which allowed a stay of 24 hours before onward travel. He overstayed and applied for leave to remain on the ground of political victimisation. Leave was refused in July 2002. In September 2002 the petitioner married a Scotswoman, and shortly thereafter his solicitors intimated that fact to the immigration authorities. The petitioner then made a new application to remain, this time on the ground of the marriage. An appeal by the petitioner against refusal of the application on the political ground was refused by the adjudicator in December 2002. In June 2003 the first application on the ground of marriage was withdrawn, and a second application on the ground of marriage made. It was refused on 25 August 2003. The decision letter set out the guidelines laid down by the Secretary of State for dealing with applications on the ground of marriage from overstayers (DP3/96) and stated that the petitioner's case did not fall within them. It stated that the Secretary of State had nonetheless considered the application, but concluded that there were insufficient compassionate circumstances to grant it, because both parties would on marriage have been aware of the petitioner's precarious immigration status, and because the petitioner's wife could reasonably be expected to live in Pakistan. The decision letter also stated that the Secretary of State rejected any claim that removal of the petitioner would amount to a breach of Art 8 of the European Convention on Human Rights and Fundamental Freedoms, having balanced the petitioner's rights against the general public interest, in particular the necessity to maintain an effective immigration policy.
The petitioner argued that the decision should be reduced on the ground that removing him from the United Kingdom would be an unjustifiable interference with his right to family life, and that if his wife were forced to accompany him to Pakistan she would, as a foreign wife, encounter severe problems. He submitted that the onus was on the respondent to provide reasons for such interference. He accepted that none of these points had been raised in the application.
The respondent argued that the Secretary of State had followed his own guidance document, DP3/96, and the relevant case law, being cases where the immigration status of the husband was precarious. He submitted that cases where the husband had previous family life in the state concerned before he was threatened with removal were not in point, and that the Secretary of State had been entitled to take into account the petitioner's immigration history, which included absconding and making a number of different applications. He submitted that it was clear from the guidance document and the case law that the onus was on the petitioner to raise matters he considered relevant to the application.
Held that: (1) Art 8 does not impose a general obligation on states to accept a non-national spouse for settlement; interference in family life is justified on a number of grounds, including the policy in DP3/96, and the decision-taker is entitled to take into account the applicant's immigration history (para 17); (2) the onus of raising all relevant points rests on the applicant, and in the present case the applicant had not raised the question of the problems his wife might encounter in Pakistan, so that the court could not consider review on that basis; but that the decision-taker had in any event taken account of that matter (paras 18, 27); (3) it was necessary to distinguish between two streams of case law, those such as the present involving marriage in the face of a precarious immigration status, and those which did not involve immigration, but typically involved deportation of a non-national with long residence and a settled family life following a prison sentence, and a very different, and lower, test applied to the latter (para 28); (4) the decision-taker had correctly identified and applied the policy legitimately set out in the guidance document DP3/96, had correctly relied on the conclusions drawn by the Court of Appeal inMahmood v Secretary of State for the Home Department,and had reached a correct decision (para 29); and petitiondismissed.
Mahmood v Secretary of State for the Home Department[2001] Imm AR 29 applied.
Mohammed Aslam brought a petition under the judicial review procedure in the Court of Session against the Secretary of State for the Home Department in which he sought reduction of a decision letter of the respondent refusing his application to remain in the United Kingdom on the ground of marriage to a UK citizen.
The petition and answers called for a first hearing before the Lord Ordinary (McEwan), on 3 December 2003 and 8 and 9 January 2004.
Cases referred to:
Abdadou v Secretary of State for the Home DepartmentSC1998 SC 504; 1999 SLT 229
Abdulaziz v UKHRC (1985) 7 EHRR 471
Ahmed v Secretary of State for the Home DepartmentSCUNK2001 SC 705; 2001 SCLR 623
Ajayi v UK (1999) 27663/05 ECHR, unreported
Amrollahi v Denmark, 11 July 2002, unreported
Beldjoudi v FranceHRC (1992) 14 EHRR 801
Berrehab v NetherlandsHRC (1989) 11 EHRR 322
Boultif v SwitzerlandFLRHRC [2001] 2 FLR 1228; (2001) 33 EHRR 50
McKenzie v UK (1997) 26285/95 ECHR, unreported
Mahmood v Secretary of State for the Home DepartmentWLR[2001] 1 WLR 840; [2001] Imm AR 229
Nwokoye v Secretary of State for the Home DepartmentUNK2002 SLT 128; 2001 SCLR 909
Poku v UKHRC (1996) 22 EHRR 949
R v Secretary of State for the Home Department, ex p TU [2003] Imm AR 288
SN and JA v Secretary of State for the Home Department, Lord Johnston, 6 Nov 2003, unreported
Sanchez-Hoyos v Secretary of State for the Home Department, Lord Menzies, 19 Mar 2002, unreported
Secretary of State for the Home Department v IsikoFLR[2001] 1 FLR 930; [2001 FCR 633; [2001] Imm AR 291
Shahid, Petr, Lady Paton, 15 May 2003, unreported
Singh v Secretary of State for the Home Department,Moses J, 10 Feb 2003, unreported
At advising, on 9 March 2004-
Lord McEwan- [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. In the summer of 2002 he engaged Glasgow agents (Atuahene Sim & Co) to act for him. On 23 July 2002 the respondent refused him permission to stay. The letter is signed by Mr Ahmad. On 12 September 2002 he married a...
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