Harinder Singh For Judicial Review Of The Refusal Of The Secretary Of State For The Home Department To Allow The Petitioner To Remain In The U.k. V.
| Jurisdiction | Scotland |
| Judge | Lord Bonomy |
| Date | 11 November 1999 |
| Court | Court of Session |
| Published date | 11 November 1999 |
| OUTER HOUSE, COURT OF SESSION
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| OPINION OF LORD BONOMY in Petition of HARINDER SINGH Petitioner; for Judicial Review of the Refusal of the Secretary of State for the Home Department to allow the Petitioner to Remain in the United Kingdom ________________
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Petitioner: Bovey, Q.C.; Skene Edwards, W.S.
Respondent: Lindsay; H. F. MacDiarmid, Solicitor to the Advocate General for Scotland
11 November 1999
The petitioner is an Indian citizen. On 5 January 1995 he entered the United Kingdom concealed in an H.G.V. from Belgium. He was in possession of a passport to which he was not entitled. On 16 January 1995 he made an application for political asylum. On 3 July 1996 his application for political asylum was refused. On 16 July 1996 he married Salinder Kaur. On 25 July 1996 directions for his removal to India were served on him. His appeal against these directions was heard on 16 January 1997. He failed to attend or be represented at the hearing. On 4 March 1997 the special adjudicator dismissed his appeal. The petitioner did not seek leave to appeal to the Immigration Appeal Tribunal against said dismissal. Removal directions providing for his removal from the United Kingdom were served on him on 24 March 1997. He was taken into custody. He was liberated by order of this court granted on 27 March 1997.
That order was made in this petition, which initially sought merely declarator that the detention of the petitioner was unreasonable and an order for his liberation. His circumstances have since changed on two occasions. A child of his marriage was born on 10 February 1998: the petitioner ceased to cohabit with his wife on 15 July 1998. He remained in Glasgow; his wife and child moved to England. The petition has evolved to reflect these developments, and the subject of the first hearing before me was a decision intimated by letter dated 28 September 1998 to refuse an application by the petitioner for leave to remain in the United Kingdom on account of his domestic circumstances.
In the course of submissions I was also addressed on two other similar applications.
The petitioner had first sought leave to remain in the United Kingdom on account of his domestic circumstances following his marriage. That application was refused and the decision was intimated in a letter from the respondent's office dated 12 August 1996 stating, inter alia, the following:
"Although it is the case that illegal entrants who have contracted genuine marriages to a person settled here may be allowed, exceptionally, to remain in the United Kingdom, discretion is exercised sparingly and only in cases where the marriage pre-dates enforcement action. Once an illegal entrant has come to notice and is liable to be removed, he can have no expectation that any subsequent marriage will avail him. Having been served with notice as an illegal entrant, your client married in the full knowledge of his liability to removal. Clearly he cannot now expect to be availed by compassionate circumstances which are of his own making.
Arrangements will now proceed for your client's removal from the United Kingdom and you will be notified of removal directions as soon as these are set. Once abroad your client may appeal against the decision to remove him as an illegal entrant and it will be open for him to apply for entry clearance to re-join his wife in the United Kingdom although the successful outcome of any such application cannot be guaranteed."
Following the birth of his child the petitioner applied again for leave to remain in the United Kingdom. Representations in support of the application were sent to the respondent in letters dated 27 January, 3 March, 22 April and 5 June 1998. A letter from the respondent's office refusing the application and explaining why was sent on 5 July 1998. That letter set out a brief history of events and enclosed copies of previous correspondence including the letter of 12 August 1996. The letter continued:
"Nevertheless, your further representations on his behalf have been considered very carefully. However, the fact that he has a genuine marriage and a young child carries very little weight for the reason, as I have already explained, that these commitments were taken on when he was already the subject of enforcement action. Although the child born on 10 February 1998 and would be (sic) a British citizen, the Secretary of State is of the opinion that a child aged 5 months at the early stages of life can readily adapt to life abroad.
In reaching this decision the Secretary of State has fully considered the United Kingdom's obligations with regard Article 8 of the European Convention on Human Rights, which guarantees the right to respect family life. However, DP3/96 takes full account of Article 8 and the Secretary of State believes that any disruption which may result from Mr Singh's removal from the United Kingdom is fully justified in the wider public interest of maintaining a firm immigration control.
It is not unreasonable to suggest although open to Mrs Singh to accompany her husband when he is removed and (sic) she will be given the opportunity to do so at public expense if necessary. Should Mrs Singh elect not to accompany her husband, for whatever reason, it is open to her to sponsor her husband's entry clearance application from the United Kingdom. Equally, it will be open to Mr Singh to apply abroad in the proper manner for entry clearance to return to the United Kingdom as a foreign spouse, although you will appreciate that I am unable to say how long such an application would take to process, or to guarantee the outcome.
I have had the case carefully reviewed in the light of your representations but, whilst I sympathise with Mr Singh's plight, I am not satisfied that I would be justified in taking the wholly exceptional step of allowing your client to stay."
The petitioner again applied for leave to remain following the breakdown of his marriage. His initial application of 10 August 1998 was returned to his solicitors because it was not accompanied by all necessary documents. The application was resubmitted by letter dated 21 August 1998. It is in the following terms:
"Our client's marriage has in fact broken down irretrievably. There is no prospect at present of a reconciliation. Our client does however have a son from his marriage who was born in February this year. Our client has instructed solicitors in England to raise court proceedings to establish contact with the child. Accordingly, he seeks leave to remain in the United Kingdom on the basis of his right to enjoy contact with his son."
The respondent's decision to refuse the application is set out in letter dated 28 September 1998 (No. 9/8 of process). That letter contained a brief historical introduction and enclosed copies of previous correspondence. It continued:
"Mr Singh married and started a family when he knew that he had no lawful basis to remain in the United Kingdom and was aware of the consequences of his actions. Inadvertently, Mr Singh's marriage has broken down but wishes (sic) to remain in the United Kingdom to enjoy regular contact with his child. However, the Secretary of State is not persuaded that there are compelling compassionate grounds for overturning the initial decision as I have explained previously.
I have had this case carefully reviewed in light of your representations but, whilst I sympathise with Mr Singh's plight, I am not satisfied that I would be justified in recommending that we take the wholly exceptional step of allowing your client to remain in the United Kingdom when others in similar situations have to obtain the correct entry clearance to come here."
It is the decision set out in that letter that the petitioner challenges.
At the outset of his submission Mr Bovey Q.C. for the petitioner indicated that, as well as declarator and reduction in terms of paragraph 4(d) and (g), he also sought declarators in terms of paragraph 4(e) and (f) that the removal would constitute an unnecessary interference with the petitioner's right to respect for his family life and would contravene his right to a fair hearing in the determination of his civil rights. In the end he did not invite me to make declaratory orders in terms of paragraph 4(e) and (f). His refined submission was that I should grant declarator in terms of 4(d) and reduction in terms of 4(g) on two grounds:- (1) the respondent failed to take account of relevant material in reaching his decision, viz. the rights enshrined in Articles 8 and 6 of the European Convention on Human Rights; and (2) the decision, which was effectively to order the removal of the petitioner from the United Kingdom, was one which no Home Secretary acting reasonably would have made since it would deprive the petitioner of the opportunity to pursue and obtain an order for contact with his son.
The relevant Convention rights are in the following terms:
" Article 8
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 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.
Article 6
1.In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
The refining of Mr Bovey's submission followed a review without any clear-cut theme of a number of cases touching upon the effect to be given to the Convention before the material parts of the Human Rights Act 1998 are brought into force. These were R. v Secretary of State for Home Department ex parte...
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