Mohammed Aslam For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord McEwan |
| Date | 09 March 2004 |
| Court | Court of Session |
| Published date | 09 March 2004 |
| OUTER HOUSE, COURT OF SESSION | |
|
| OPINION OF LORD McEWAN in the petition of MOHAMMED ASLAM Petitioner; For Judicial Review ________________ |
Petitioner: Govier; Andersons, Glasgow
Respondent: Stewart; H F Macdiarmid, Office of the Solicitor to Advocate General
9 March 2004
[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 (No 4/2 of process). In the Summer of 2002 he engaged Glasgow agents (Atuahene Sim & Co) to act for him (see No 4/5 of process). On 23 July 2002 (Letter No 7/4 of process) the respondent refused him permission to stay. The letter is signed by Mr Ahmad. On 12 September 2002 he married a Scotswoman (No 6/1) and on 24 September his solicitors intimated that to the Immigration Authorities. He then changed his agents to those now acting (Plancey & Co. See No 7/9) and on 12 November 2002 made a different application to remain on the grounds of the marriage. (I shall call this "the first marriage application". An examination of that application reveals mention of a child since benefit was being paid to his wife. (I was told later she had two children).
[4]An adjudicator heard his appeal on the political application in Glasgow on 19 November and Mr McDonald's Decision refusing the appeal was dated 10 December and promulgated on 16 December (see No 7/7 of process). Account was taken of the marriage. Thus the political application had failed. Leave to appeal was sought (see 7/8), but was refused by the Immigration Appeal Tribunal on 21 January 2003.
[5]That left the first marriage application alive. Earlier on 18 June 2003 (No 7/10) his agents asked for a progress report and for the return of passports. His wife wished to go abroad on holiday. Then on 20 June (No 7/11) the first marriage application was withdrawn. Sundry correspondence followed about the passport. (Nos 7/12 to 7/14 of process). Then on 21 August the petitioner lodged a second marriage application in similar terms (No 7/15 and 16). The Home Office refused that second application (the decision taker was a Mr Devlin) on 25 August 2003 (See No 7/17). This refusal has brought the matter before me. Before moving on I should note that there is no mention of any children in the second application (No 7/16). This application also resulted in certain Sheriff Court proceedings. The refusal of this application is in these terms:
"The Secretary of State has laid down guidelines for dealing with marriage applications from overstayers (a document commonly referred to as DP3/96). These guidelines state that it will normally be appropriate to consider granting leave to remain, exceptionally, on the basis of a marriage if the Secretary of State is satisfied that:
i.the marriage is genuine and subsisting; and
ii.that it pre-dates the service of an enforcement notice by at least two years; and
iii.that it is unreasonable to expect the settled spouse to accompany his/her spouse on removal.
Your client's case does not fall within this general rule.
In your client's case, his marriage on 12/09/02 does not pre-date by two years the service of notice of liability to removal and would not normally be grounds for allowing him to remain. Notwithstanding the general policy the Secretary of State has considered whether it would be right to allow your client to remain but having considered all the circumstances of his particular case has concluded that there are insufficient compassionate circumstances to justify a concession on the grounds of the marriage. The Secretary of State considers that it would be reasonable to expect both parties to have been aware that your client's precarious immigration status was such that the persistence of their marriage within the United Kingdom would, from the outset, be uncertain. Moreover, although your client's spouse is a British citizen, the Secretary of State believes that Mrs Heather Aslam could reasonably be expected to live in Pakistan.
In these circumstances the Secretary of State is not persuaded that the position of your client's family constitutes a sufficiently compelling reason for making him an exception to the normal practice of removing those who have entered the United Kingdom illegally.
The Secretary of State has also had regard to Article 8 of the ECHR, and he would reject any claim that removing your client to Pakistan will amount to a breach of this article. Article 8 does not extend to a general obligation on the United Kingdom to respect the choice by married couples of a country of their matrimonial residence and to accept non-national spouses for settlement in the United Kingdom. Your client is to be removed from the United Kingdom at public expense and his spouse is free to accompany him, also at public expense if necessary, should this be her wish. For the reasons given above, it is the Secretary of State's view that it would be reasonable for his spouse to accompany your client. In these circumstances there would be no interference with your client's family life. Equally your client's wife can remain in the United Kingdom and support any application he makes abroad to return in the proper manner as the spouse of a person settled here. The Secretary of State considered that your client should not benefit from his breach of the immigration control by avoiding the need to obtain an entry clearance. To allow your client to remain here and thereby circumvent the need for entry clearance would benefit him against those who comply with the law. This is supported by the case of Mahmood (Queen's Bench Division 1/12/00).
In reaching this decision the Secretary of State has balanced your client's rights against the wider rights and freedom of others and the general public interest. Specifically, the Secretary of State has weighed up the extent of the possible interference with your client's private/family life, against the legitimate need to maintain an effective national immigration policy. With respect to the latter consideration he has taken into account your client's failure to observe the immigration regulation. In light of the circumstances of your client's particular case, the Secretary of State considers that his actions are proportionate to the social need being fulfilled. He does not therefore accept that the decision to proceed with your client's removal from the United Kingdom would breach Article 8."
[6]I was referred to a number of authorities which I list and cite here only for convenience viz. Boultif v Switzerland [2001] 33 EHRR 50; Mahmood v Secretary of State for the Home Dept. [2001] Imm. A.R. 229; Amrollahi Denmark (Unreported) 11 July 2002; Abdadou v Secretary of State for the Home Department 1998 S.C. 504; Ajayi v U.K. (unreported) (1999) 27663/05 ECHR; McKenzie v U.K. (unreported) (1997) 26285/95 ECHR; Beldjoudi v France 14 EHRR 801; Secretary of Sate for the Home Department v Isiko [2001] Imm. A.R. 291; Ahmed v Secretary of State for the Home Department, 2001 S.C. 705; Nowkoye v Secretary of State for the Home Department, 2002 SLT 128; Poku v U.K. (unreported) (1996) 26985/95 ECHR; Sanchez-Hoyos v Secretary of State for the Home Department (unreported) 19 March 2002, Lord Menzies; Shahid, Petitioner, (unreported) 15 May 2003, Lady Paton; S.N. and J.A. v Secretary of State for the Home Department (unreported) 6 November 2003, Lord Johnston; Singh v Secretary of State for the Home Department (unreported) 10 February 2003, Moses J.; R. (T.U.) v Secretary of State for the Home Department [2003] Imm. A.R. 288. Some other cases were also mentioned under reference to the above where these cases had been referred to in the opinion.
[7]I now move to consider the arguments addressed to me by counsel.
[8]Mr Govier maintained that the decision in No 7/17 of process should be reduced as being incompatible with the petitioner's rights under Article 8 of the European Convention on Human Rights 1950 (the right to family life). To remove the petitioner would be an interference with this right to family life and it could not be justified under Article 8(2). Counsel founded strongly on the case of Boultif v Switzerland and he quoted extensively from paragraphs 39 and 48 of that decision. He maintained that it set forth the correct guidelines and it was for the Secretary of State to come up with a reason for the interference. To force his wife to go with him to Pakistan would cause her severe problems, and the respondent ought to have been aware of that. She was born in England but lived in Fife. She had two children aged 16 and 10 who lived with her and the petitioner. (Counsel then presented an argument about whether the respondent ought to have enquired or known about the state of knowledge of the wife concerning her husband's precarious immigration status when she married him. Wisely after a time he expressly abandoned the point).
[9]Mr...
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