R v Secretary of state for the home department ex parte Khalid Masood Khan
| Jurisdiction | England & Wales |
| Judgment Date | 08 October 1996 |
| Docket Number | CO/1114/96 |
| Date | 08 October 1996 |
| Court | Queen's Bench Division |
Turner J
CO/1114/96
R de Mello for the applicant
S Kovats for the respondent
Cases referred to in the judgment:
Abdul Aziz v United Kingdom [1985] 7 EHRR 471.
re T [1994] Imm AR 368.
R v Khan [1995] QB 27: [1994] 4 ALL ER 426.
R v Khan [1996] 3 WLR 162: [1996] 3 All ER 289.
R v Ministry of Defence ex parte Smith and ors [1996] 2 WLR 305: [1996] 1 All ER 257.
Deportation — following refusal of variation of leave after breakdown of marriage — daughter of union — applicant had secured contact order — relevance of DP/2/93 — meaning in policy document of “takes account of the effect of the European Convention on Human Rights” — meaning of “frequent and regular access” — whether article 8 of the Convention should be applied without reservation. Immigration Act 1971 ss. 3(2), 3(5)(a), 33(5): Children Act 1989 s. 8: HC 395 paras. 246 — 8, 322(1): European Convention on Human Rights art. 8.
Application for leave to move for judicial review of the decision by the Secretary of State to deport the applicant. The applicant was a citizen of Pakistan. He had been granted limited leave following his marriage to a British citizen. Variation of leave was subsequently refused because the marriage had broken down. There was a daughter born of the union. The applicant had secured a contact order under section 8 of the Children Act.
Counsel argued that the decision of the Secretary of State was contrary to the Minister's guidance policy, DP/2/93. That policy acknowledged the relevance of article 8 of the European Convention on Human Rights and provided that deportation proceedings should be abandoned where there was frequent and regular access to a child. The Secretary of State while acknowledging the relevance of article 8 had failed unreservedly to apply it.
Held:
1. The Secretary of State was not bound by the provisions of the European Convention although he was obliged to have regard to it, which he had.
2. He had been entitled on the facts to conclude that the access granted by the courts was not “frequent and regular contact”.
3. The Secretary of State's decision was not Wednesbury unreasonable.
Turner J: The applicant, who is a Pakistani national, moves to quash the order for deportation made against him and dated 31 January 1996 together with the decision to confirm that order which was communicated to him on 28 March. The background to the application was the applicant's marriage to Nasreen Lubna [a British citizen] in Pakistan on 22 September 1989. On 22 May 1990 a daughter was born as the result of this union. Three months later the applicant arrived in the United Kingdom and was given leave to enter for 12 months: this was on the basis of his marriage. On 23 June 1993 the applicant applied for indefinite leave to remain relying upon his marriage as the basis of his claim. On 24 July of the same year, the applicant and his wife separated, the wife keeping the child with her.
The Home Office commenced enquiries into the applicant's outstanding application and were informed that his wife did not support it because the marriage had broken down. As a result of the enquiries on 13 October 1993, the Home Office notified the applicant that his application was refused. However, on 29 September, before the Home Office decision had been made public, the applicant applied to the Birmingham County Court for a contact order with his daughter: this was under the provisions of section 8 of the Children Act 1989. On 22 April 1994 the applicant was granted a contact order for one hour per week. On 6 June of that year, the applicant's appeal against the refusal of leave to remain was dismissed by an adjudicator but on 6 July the applicant made a fresh application to the Home Office for indefinite leave to remain on the basis of the contact order which he had obtained. Two days later a further contact order was made, again, this was for one hour per week. On 12 January 1995 a further contact order was made, this time it was for 11/2–2 hours every three weeks. A further application for leave to remain was then submitted on 25 January, but was yet again refused on 24 March 1995. The applicant was on that occasion offered the opportunity to depart voluntarily under HC 395 rule 246. Notice of intention to deport was given simultaneously. The applicant's appeal against this order was dismissed on 7 July.
On 24 August the contact order was amended to provide for contact over four hours every two weeks, this was later varied to two hours every three weeks on 6 March 1996. On 28 March, the Home Secretary rejected further...
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