Baig v Secretary of State for the Home Department

( Approved by the Court)

I will ask Buxton LJ to give the first judgment.

LORD JUXTON BUXTON: This is an application for permission to appeal with appeal to follow if permission is granted, having been so ordered by Hooper LJ after consideration of the papers.

I should preface the judgment by saying that since I shall have occasion in the course of it to criticise the way in which this case has been conducted before its arrival in this court, Mr Drabble QC and Mr Fripp who have appeared before us today were not instructed in the case until an application was made for permission to appeal to this court.

The case concerns a family, the mother of which is the applicant, Mrs Baig. Since there has been some confusion at an earlier stage as to the exact way in which the adult members of the family should be described and addressed, I hope that it will be acceptable if I refer to Mrs Baig and her husband hereafter as the husband and the wife. They now have four children, of whom we are particularly concerned in this case, for reasons that will become apparent, with Feroz, who was born in September 1995, and Anoosh, who was born in February 1997.

The issue in the application as it has developed is something that I would describe for purpose of identification only at the moment as the seven-year policy. That is a policy adopted by the Secretary of State in relation to the removal from this country of children who have been resident here for seven years or more and therefore, contingently, the non-removal of their parents and other family members. That, as I say, is a description for identification only. At a later stage in the judgment I will have to return to the exact terms of that policy which were until a late stage in the application a matter of some dispute.

It is necessary to say a good deal about the history of this family and its relations with the immigration authorities of this country, because that is an important part of the background to this application and to the issues that have to be determined in it.

It appears, although we have seen no documents vouching for the early days of the history, that the husband was between 1986 and 1993 unlawfully in the United Kingdom but left this country in the face of enforcement action. In February 1995 the husband and wife entered the United Kingdom unlawfully, both using false passports. In July 1995 they travelled to the Netherlands, apparently intending to settle there permanently. The husband was then using a further false passport which, as the adjudicator found when determining the wife's application, he had dishonestly obtained earlier in 1995. As I have said, Feroz was born in September 1995, in the Netherlands. The adjudicator found in paragraph 15 of his adjudication that that birth was registered by the husband using the false passport that the husband was then travelling under.

In February 1996 the wife, and it would appear also the husband (though that is not wholly clear) unlawfully re-entered the United Kingdom. They both lived here for the following four years without making any attempt to regularise their immigration status. In February 1997, as I have already said, Anoush was born. She had been born to the couple in that immigration status in this country.

In October 2000 the husband, when returning from what he described as a holiday in Pakistan, was detained on entry for the use of a false passport. Thereafter the authorities in this country made a series of unsuccessful attempts to deport him.

On 10 February 2001 the husband made an application under the Regularisation of Overstayers Scheme, but he does not appear to have attended the interviews that were requisite for the pursuit of that application. He appears also to have lost contact with the immigration authorities. In July 2002 he was eventually apprehended, apparently still with a false passport; and the application he had made 15 months earlier under the regularisation scheme was refused and removal directions were set. He then made an application on 23 July 2002 for judicial review of the deportation order. In that claim he asserted that to deport him to Pakistan would interfere with his family life in a disproportionate way. Attention was drawn to what was described as Policy 06999, that is to say, the seven-year policy to which I have already referred.

Up to that date the wife had, so far as we know, taken no separate immigration proceedings of her own or sought any relief from her status as an unlawful resident.

On 21 August 2002, apparently acting through the same solicitors as had been acting for the husband, the wife claimed asylum and also human rights protection based upon the seven-year policy. We have not seen the document in which that claim was set out, and Mr Drabble very frankly told us that he was unable to give any account or any explanation on the part of the wife as to why that claim was deferred until she had been in the country for more than six years, and why it was thought either necessary or appropriate for her to rely on the seven-year policy, that is to say, the seven-year policy as it applied to her son Feroz, when those issues were already being ventilated in judicial review proceedings brought by her husband. Nor does it appear to have been brought home to the immigration authorities and to the judicial authorities who were charged with dealing with the wife's application that there were collateral proceedings in relation to the husband.

On 2 October 2002 the judicial review proceedings against the husband's removal directions were withdrawn. We are told that that was on an undertaking by the Secretary of State to consider the case under the seven-year policy. That may well be so, though that undertaking did not find its way into the court order. However, on that same day, the husband did indeed make an application in formal terms under the seven-year policy in these terms:

"We now wish to make a formal application that our client be allowed to remain in the UK on the basis of the concession policy that our client's oldest child has been in the UK for 7 years."

On 9 November 2002 the Secretary of State rejected the husband's application under the seven-year policy. It is not necessary to set out the grounds that the Secretary of State gave, because Mr Drabble fairly said that he had no complaint to make of the Secretary of State's determination as such. His complaint in this case concerns the way in which the adjudicator handled the matter. The husband did not appeal against that determination.

On 29 May 2003 the Secretary of State refused the wife's asylum and human rights claims. There was no reference in that letter to the seven-year policy even though the wife had relied on it in her original claim. The wife appealed to an adjudicator. Having instituted separate proceedings by her application of 21 August 2002, she was able thereafter to assert the rights of appeal appropriate to those proceedings.

The adjudicator dismissed the asylum claim. The claim was based upon fear of persecution because of the nature of their marriage were the husband and the wife together to return to Pakistan. The adjudicator said of the asylum claim and of the husband and wife this, in paragraph 17:

"I am satisfied also that both of them have knowingly behaved dishonestly in order to remain in this country. They were not persecuted when they were in Pakistan and they have failed to establish that there is any risk whatsoever to them should they be returned. It follows therefore that they have failed to bring themselves within the terms of the 1951 Convention."

So far as the claims under and related to Article 8 and relating to the seven-year policy were concerned, the adjudicator took the point that that issue had not been properly asserted in the grounds of appeal, merely that the skeleton argument before him had stated:

"… the various documentations produced all point to the fact that the appellant, her husband and four children should be granted indefinite leave to remain in the UK by taking advantage of policy 069/99."

He said that he would not consider that because of the defect in the ground of appeal. It is not contested that he was wrong procedurally to take that view. He did, however, more generally consider the Article 8.2 considerations that were placed before him, in particular in respect of the health of Feroz. He rejected a claim that Feroz's health militated against removal; he pointed out that the family was going to be removed as a whole and therefore that would not interfere with their family life. He also said this, in respect of that part of the claim, in paragraph 20:

"… it is clear that both the appellant and in particular her husband are dishonest and I do not accept any of their evidence on this aspect of their appeal. This like the asylum appeal is a further attempt without merit to delay their return to Pakistan."

He therefore rejected the application under Article 8.

It is fair to say that the adjudicator considered that that...