R v Secretary of State for Home Department, ex parte Gangadeen; R v Secretary of State for Home Department, ex parte Khan
| Jurisdiction | England & Wales |
| Judge | HIRST L.J,Sir Brian NEILL |
| Judgment Date | 27 November 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1121-24 |
| Docket Number | QBCOF 97/0328/D |
| Court | Court of Appeal (Civil Division) |
| Date | 27 November 1997 |
and
[1997] EWCA Civ J1121-24
Lord Justice Hirst
Lord Justice Swinton Thomas
Sir Brian Neill
QBCOF 97/0328/D
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
CASE 1:
MR. N. BLAKE Q.C. and MR. A. DIAS appeared on behalf of the Appellants/Applicants.
MR. D. PANNICK Q.C. and MR. M. SHAW (instructed by the Treasury Solicitor) appeared on behalf of the Respondent/Respondent.
CASE 2:
MR. P. DUFFY Q.C. and MR. R. DE MELLO (instructed by J.R. Jones Cooper, Birmingham) appeared on behalf of the Appellant/Applicant.
MR. S. KOVATS (instructed by the Treasury Solicitor) appeared on behalf of the Respondent/Respondent.
Introduction
The Court had before it two appeals, each of which concerns the legality of a decision by the Secretary of State for the Home Department to remove the appellant from the United Kingdom.
These two cases have been listed together because they each raise an important question of general principle, namely whether in a case where such a decision affects the interests of a child of the prospective deportee, it is incumbent on the Home Secretary to give preference to the best interests of that child as the paramount consideration in the process, having regard to the principles laid down in Article 8 of the ECHR, and the policy announced by the Home Office in the Deportation Policy Guidance ("the Policy") known as DP/2/93, which states in its introduction as follows:-
"The attached instruction provides guidance on cases involving marriage and children, and takes into account the effect of the European Convention on Human Rights. Article 8 of the Convention guarantees the right to respect for family life and recent European court cases have demonstrated that, however unmeritorious the applicant's immigration history, the Court is strongly disposed to find a breach of Article 8 where the effect of an immigration decision is to separate an applicant from his/her spouse or child."
The answer to this question hinges in part upon the resolution of other issues of principle, as to the proper legal approach which should be adopted to the Policy, and as to the status in English law of the ECHR.
In Gangadeen and Jurawan the first appellant Mrs. Philomena Gangadeen is an illegal entrant subject to removal and is the mother of the second appellant Daniel Jurawan who is now aged 7. Mrs. Gangadeen was born in India in 1960, and is an Indian citizen. She first entered the UK in 1983 on 6 months leave to enter, and following unsuccessful applications for leave to remain, was declared an illegal entrant in 1993. In 1988 she met Daniel's father, Mr. Robert Jurawan, who is a British citizen and who was at all material times married to another woman. Shortly after Daniel's birth their relationship ended, and in April 1992 she married Mr. Samuel Gangadeen, a British citizen who was divorced from his former wife. Daniel has lived here all his life, resides with his mother and Mr. Gangadeen, with whom he has a close relationship, and has attended school here since 1993. He also retains a close relationship with his father, and other paternal relations, and contact between them has been and remains frequent and regular. It is Daniel's interest and welfare which is the main focus of their appeal, which is against the dismissal by Harrison J. on 15 November 1996 of their application for judicial review of a decision by the Home Secretary dated 31 August 1995 whereby he maintained earlier decisions to refuse to grant Mrs. Gangadeen leave to remain, and to proceed with her removal to India, it being plain that if she is deported Daniel will accompany her.
In Khan the appellant Mr. Khalid Khan, who is an overstayer subject to removal, was born in October 1962 and is a Pakistani citizen. In 1989 he married his wife Nasreen Khan, who is a British citizen, in Pakistan, and in May 1990 their daughter Saira, whose interest and welfare is the main focus of Mr. Khan's appeal, was born in the UK. In August 1992 Mr. Khan arrived in this country and was given leave to enter for 12 months as the husband of a British citizen, but subsequent applications for leave to remain have proved unsuccessful. In July 1993 Mr. Khan and his wife separated, and they have lived apart ever since. Mrs. Khan has care of Saira, and Mr. Khan has enjoyed limited and intermittent contact with her pursuant to Court orders. Mr. Khan's appeal is against the order of Turner J. dated 8 October 1996, refusing his application for judicial review of the Home Secretary's order for deportation made against him on 31 January 1996, together with the decision to confirm that order which was communicated to him on 28 March 1996. That decision is reported at [1997] Imm AR 89.
In this judgment I shall first consider the main issues of principle. I shall then review each of the cases individually against a much more detailed background of the relevant immigration and family history.
The Main Issues of Principle
Article 8 of the ECHR provides as follows:-
"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 is 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."
The Policy (which has subsequently been superseded by DP/3 4 & 5/96 with effect from 14 March 1996) contains the following relevant provisions, which I refer to hereafter by reference to the numbered paragraphs, following the introduction which I have already quoted:-
" SECTION A: MARRIAGE POLICY
1. All deportation and illegal entry cases must be considered on their individual merits. Where enforcement action is under consideration or has been initiated and the offender is married a judgment will need to be reached on the weight to be attached to the marriage as a compassionate factor.
2. As a general rule deportation action under section 3(5)(a) or section 3(5)(b) (in non-criminal cases) or illegal entry action should not be initiated or pursued where the subject has a genuine and subsisting marriage to a person settled in the United Kingdom if:
(a) the marriage pre-dates enforcement action; and
(b) the marriage has lasted 2 years or more or, in the case of a common-law relationship (see paragraph 7 below), the couple have cohabited for 2 years or more. It does not automatically follow, however, that deportation/removal is the right course where this test is not met. Full account should be taken of any evidence that a strong relationship has existed for more than 2 years (this will include any reasons why the couple did not marry earlier, eg waiting for a divorce to be finalised, saving to buy their own home); or
(c) the settled spouse has lived here from an early age or it is otherwise unreasonable to expect him/her to accompany on removal; or
(d) one or more children of the marriage has the right of abode in the United Kingdom …..
Divorced or separated parents
5. The fact that the European Court is strongly disposed to find a breach of Article 8 of the European Convention where the effect of an immigration decision is to separate a parent from his/her child is also relevant in cases involving divorced or separated parents. Where one parent is settled in the United Kingdom and the removal of the other would result in deprivation of frequent and regular access currently enjoyed by either parent, section 3(5)(a), 3(5)(b) (in non-criminal cases) or illegal entry action should be abandoned. Reliance cannot be placed on the argument that the United Kingdom settled parent can travel abroad to continue access.
6. Cases will arise where a person to be deported/removed has custody of a child with the right of abode in the United Kingdom by a previous partner who is no longer in contact with the child. Here, the crucial question is whether it is reasonable for the child to accompany the parent to live abroad. The factors to be considered are:
(a) the age of the child (in most cases a pre-school age child could reasonably be expected to adapt to life abroad);
(b) the strength of the child's ties with the United Kingdom, including other United Kingdom resident family members;
(c) any medical conditions which would be better treated here;
(d) the standard of living (including educational facilities) in the country to which the parent is being removed.
Common-law relationships
7. Where there is conclusive evidence that a genuine and subsisting common-law relationship akin to marriage exists, it should be considered under this instruction as if it were a marriage. The onus rests firmly on the individual who seeks to benefit to provide conclusive evidence of the nature of the relationship."
It is common ground that the Home Secretary is in ordinary circumstances obliged to act in accordance with his declared Policy, and that, if he departs from it, it is incumbent upon him to explain why. It is also common ground that he must conduct a balancing exercise in which the considerations of the interests of the child on the one hand, and the considerations...
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