R (Mahmood) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,Lord Justice May,The Master of the Rolls |
| Judgment Date | 08 December 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1208-13 |
| Docket Number | Case No: C/2000/0385 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 December 2000 |
[2000] EWCA Civ J1208-13
The Master of the Rolls
Lord Justice May and
Lord Justice Laws
Case No: C/2000/0385
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF
(MR JUSTICE OWEN)
JUSTICE QUEEN'S BENCH DIVISION
Frances Webber (instructed by Thompson Leatherdale for the Appellants)
Lisa Giovannetti (instructed by Treasury Solicitors for the Respondent)
INTRODUCTORY
This appeal is brought against the judgment of Owen J, given on 2 November 1999, when he dismissed the appellant's application for judicial review of the Secretary of State's decision to remove him from this country as an illegal entrant. Although the appellant claimed and was refused asylum in this country, these proceedings are not concerned with that aspect of the case, but rather with the Secretary of State's refusal to allow him to remain as the husband of a British citizen. The Secretary of State has considered the matter more than once. His latest decision letter is dated 29 September 1999. Judicial review papers were first lodged at the Crown Office as early as 22 January 1998 (to challenge the Secretary of State's first decision letter dated 15 December 1997), and amended on 7 December 1998 (so as to assault the second decision letter, dated 23 November 1998). Before Owen J and this court the proceedings have been treated as directed against the latest letter, of 29 September 1999. Mantell LJ gave permission to appeal on 6 April 2000.
Amongst other matters the appeal raises two particular issues of some importance, which however were only exposed in the course of argument in this court. The first concerns the application of the Human Rights Act 1998. As is well known the principal provisions of that Act, incorporating into our law the substantive rights guaranteed by the European Convention on Human Rights and Fundamental Freedoms, took effect on 2 October 2000. The first issue may at this stage be expressed as follows. Where a public body (here the Secretary of State) has before 2 October 2000 (here on 29 September 1999) taken an executive decision to the effect that on a future date he or it will take certain action (here, to remove the appellant from the United Kingdom) which has however not been carried into effect before 2 October 2000, and upon a date after 2 October 2000 the High Court or this court on appeal is concerned to scrutinise the decision upon an application for judicial review, does the court look only at the pre-October 2000 executory decision and so judge its legality upon the premise that the European Convention rights are not domestic law, or does it look forward to the action which (if the court permits) the public body will take to give effect to its earlier decision, necessarily after 2 October 2000, and so pass judgment on the footing that the Convention rights are fully in play since the action is proposed to be taken after their incorporation?
The second issue is raised by Miss Webber's submission for the appellant that this court is effectively in as good a position as was the Secretary of State to form a judgment as to the competing interests which militate for and against the appellant's removal. The submission promotes the question, how intensive is the proper standard of judicial review of the Secretary of State's decision? And it is connected with the issue: does the proper standard differ according to whether or not the court is considering incorporated Convention rights, and if so, how?
THE FACTS
Before addressing these and other issues in the case I should describe the facts. The appellant who was born on 16 August 1968 is a citizen of Pakistan. On 26 November 1994 he entered the United Kingdom clandestinely in a lorry (or was later to claim that he had done so). On 11 January 1995 he applied for asylum. His claim was refused on 27 October 1997, and he was served with notice of removal directions as an illegal entrant. However a week earlier, on 20 October 1997, he had married Salma Yashin, who is a British citizen. In fact she had herself come from Pakistan, and with members of her family had settled in the United Kingdom, when she was about thirteen. Her parents, brothers and sisters live in this country.
The appellant appealed against the Secretary of State's decision refusing asylum, and also applied for leave to remain in the United Kingdom on the basis of his marriage. His asylum appeal was dismissed by the Special Adjudicator on 17 December 1997. It does not appear to have been prosecuted with any great vigour; the Special Adjudicator observed that "[t]he appellant did not appear at the hearing to give oral evidence. No explanation for his absence was received." The appellant's marriage application was refused two days earlier, on 15 December 1997. In the decision letter of that date it was pointed out that he had no claim to stay under the Immigration Rules; and that was correct. However the Secretary of State proceeded to consider the case in light of his "Marriage Policy", set out in a document known by its serial number as DP3/96.
Given the arguments in the case it is convenient to set out the material provisions of DP3/96 at this stage. Together with its predecessor DP2/93, it has many times been considered by the courts. As is stated in the Introduction the document "provides guidance, in general terms, on the consideration of cases of those persons liable to be removed as illegal entrants or deported who have married a person settled in the United Kingdom." Caseworkers are reminded (paragraph 4) that illegal entrants or persons liable to be deported acquire no right under the Rules to remain in the United Kingdom by virtue of marriage to someone settled here. The document then describes two situations between which there is a plain antithesis. The first is set out under the heading, "Marriages that pre-date enforcement action", and is dealt with at paragraphs 5 – 7. The second is headed "Marriages that post-date enforcement action", and is dealt with in paragraph 8.
Paragraph 5 states in part:
"As a general rule, deportation action… or illegal entry action should not normally be initiated in the following circumstances:
(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 two years before the commencement of enforcement action;
and
(b) it is unreasonable to expect the settled spouse to accompany his/her spouse on removal."
There is then set out certain guidance as to what is meant by "reasonable" and by "commencement of enforcement action". Paragraph 6 contains some observations about applicants with criminal convictions. Paragraph 7 refers to cases where there are children with the right of abode here, and states that "the crucial question is whether it is reasonable for the child to accompany his/her parents abroad", as regards which one factor is the age of the child ("in most cases a child of 10 or younger could reasonably be expected to adapt to life abroad").
Paragraph 8 (under "Marriages that post-date enforcement action") states:
"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. Paragraph 284 of the Immigration Rules makes it clear that one of the requirements for an extension of stay as the spouse of a person present and settled in the United Kingdom is that 'the marriage has not taken place after a decision has been made to deport the applicant or he has been recommended for deportation or has been given notice under s.6(2) of the Immigration Act 1971' [sc. which relates to illegal entrants]. Marriage cannot therefore in itself be considered a sufficiently compassionate factor to militate against removal… The onus is on the subject to put forward any compelling compassionate factors that he/she wishes to be considered which must be supported by documentary evidence. Only in the most exceptional circumstances should removal be stopped and the person allowed to stay."
DP3/96 is badly drafted. The circumstances of a person in the appellant's position are not catered for in the text. His marriage pre-dated enforcement action, but not by two years; so he has not the advantage of paragraph 5, as the decision letter of 15 December 1997 stated. Equally, he is not condemned by paragraph 8. There is however a flow chart attached to DP3/96, which shows in effect that in the case of an immigrant in the appellant's position the Secretary of State's view is that in the absence of exceptional circumstances "enforcement action is appropriate". (I note that the question in the chart, "Has the Marriage lasted for at least 2 years?" must mean "Had the marriage lasted for a least 2 years before enforcement action?", since otherwise the flow chart would be inconsistent with the policy.) That is unsurprising. The appellant is an illegal entrant within the meaning of the Immigration Act 1971; and unless the Secretary of State's policy in relation to illegal entrants contained a prima facie bias in favour of their removal, it would not be a policy supporting immigration control at all. However, I hope that the Home Office will look again at the terms of DP3/96, if only for clarity's sake.
The letter of 15 December 1997 referred also to Art. 8 of the European Convention, which guarantees (Art. 8(1)) the right to respect for family life; "but...
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