R v. Secretary of State for the Home Department, Ex parte Ahmed (Mohammed Hussain) and Patel (Idris Ibrahim)

IN THE HIGH COURT OF JUSTICE CO/3476/97

QUEEN'S BENCH DIVISION

(CROWN OFFICE LIST)

Royal Courts of Justice Strand London WC2

Monday, 27th April 1998

Before: MR. JUSTICE SULLIVAN

Regina-v-Secretary of State for the Home Department ex parte Mohammed Hussain Ahmed and Idris Ibrahim Patel

MR. S. KADRI Q.C. and MR. A. BLAKE (instructed by Messrs Maliks, Manchester) appeared on behalf of the Applicants.

MR D. PANNICK Q.C. and MR. S. KOVATS (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.

JUDGMENT

MR. JUSTICE SULLIVAN:

Mr. Ahmed and Mr. Patel have both applied for leave to remain in the United Kingdom on the basis of marriage to a person settled in this country. Both applications were refused by the Secretary of State. The two cases have been heard together because they raise substantially the same issues relating to the lawfulness and proper application of the Secretary of State's policy DP/3/96 which gives guidance as to the approach to be adopted towards the removal of illegal entrants who have, since their illegal entry into the United Kingdom, married a person settled here and become the fathers of children who have been born here.

The facts of the two cases may be summarised as follows. Mr. Ahmed is a citizen of Bangladesh who entered the United Kingdom in 1990 or 1991 using a false passport. In 1993 he met Zahirun Nessa who enjoys indefinite leave to remain in the United Kingdom. They married in August 1995 and a daughter, Anisa Ahmed, was born in June 1996. On 4th July 1996 Mr. Ahmed applied for leave to remain in the United Kingdom on the basis of his marriage. He was interviewed. He admitted entering the country using another person's passport and was served with notice of illegal entry on 10th December 1996. Early the next year Mr and Mrs Ahmed purchased a house.

The Secretary of State refused his application for leave to remain by letter dated 11th April 1997:

"As I am sure you are aware, as an illegal entrant, your client has no entitlement to make an application for leave to remain in the United Kingdom under the Immigration Rules. Although it is the case that an illegal entrant who has contracted a genuine marriage to a person settled here may be allowed, exceptionally, to remain in the United Kingdom, discretion is used sparingly. Under current policy and practice, a marriage can only avail an illegal entrant if it has subsisted for more than two years prior to the commencement of enforcement action."

Their Member of Parliament made representations on their behalf, to which the Secretary of State replied in a letter of 23rd January 1997 in these terms:

"I know that you have already been provided with the background details to Mr Ahmed's case and the policy and guidelines currently in use by the Immigration Service when considering applications from illegal entrants who contract marriages to persons settled here. I shall therefore not repeat it here.

I have carefully reconsidered Mr Ahmed's case in the light of your representations but I am not satisfied that there are exceptional circumstances of a compelling or compassionate nature which would justify my taking the wholly exceptional step of allowing him to stay.

Mr Ahmed is a self-confessed illegal entrant. He therefore has no entitlement to make an application for leave to remain under the immigration rules. He may apply from abroad for entry clearance to re-join his wife and child here legally. His wife will be invited to accompany him, with their child, at public expense, to Bangladesh, where she lived until 1990. Their child is considered young enough to adapt to life there with his parents."

In September 1997 application was made for leave to apply for judicial review of the decisions contained in these two letters. The grounds contended, inter alia, that the decisions were disruptive of family life and thus contrary to Article 8 of the European Convention on Human Rights (the European Convention), and that the Secretary of State had failed to consider Anisa's rights to enjoy the system of health and education which is available in the United Kingdom.

The application for leave prompted the Secretary of State to write a further letter of 8th December 1997:

"Mr. Ahmed is an illegal entrant with no entitlement to make an application to remain under the Immigration Rules. Although it is the case that an illegal entrant who has contracted a genuine marriage to a person settled here may be allowed exceptionally to remain in the United Kingdom discretion is used sparingly, and only in cases which predate enforcement action by more than two years or where exceptionally compelling and compassionate circumstances exist. Under current policy and practice, Mr. Ahmed's marriage does not avail him and he has no basis on which to remain in the United Kingdom. Mr. Ahmed's wife, a citizen of Bangladesh who has spent most of her life there and their child, born 3 June 1996 will be invited to accompany Mr Ahmed, at public expense to Bangladesh.

Once abroad Mr Ahmed may appeal against the decision to remove him as an illegal entrant, and for an entry clearance to return legally.

With reference to your mention of Article 8 of the European Convention on Human Rights, it would appear that as the family have been invited to travel together to Bangladesh there is no question of splitting the family unit. However, even if that were to happen, the need for a fair immigration control would outweigh that factor in this case. It is appreciated that conditions in Bangladesh may not be as good as in the United Kingdom, and that the child was born in the United Kingdom, but we consider this to be irrelevant as their child is only one year old and would readily be able to adapt to life abroad."

Further affidavit evidence was provided in support of the application for leave by the applicant and his wife. In the applicant's further affidavit he said this:

"2.  I am from Syihet City in Bangladesh and my background is poor. Before I came to this country I ran a small shop in the city which allowed me to earn a meagre living. My earnings merely allowed me to subsist. I have no particular training or expertise in any field and no longer have the shop which I used to run. In those circumstances I do not have any business to which I might return in order to earn sufficient money to support myself and my family.

3.   I would find it extremely hard to find employment if I were to return to Bangladesh. In fact I originally started the shop in Syihet because there was no other work available to me, and then I was only able to do this by borrowing a great deal of money some of which I still owe.

4.   Were my family forced to return to Bangladesh I would be worried that I would be unable to support them. There is no state social security system to fall back on. I have three brothers and one sister currently living in Bangladesh but I could not count on their help because they also have their own families and are by no means wealthy enough to take on the care of another family.

5.   Syihet is a crowded chaotic city in which only the wealthy can take for granted education and health care. I really worry that my daughter Anish's welfare in particular would be compromised. Nursery care is available only for the wealthy and schools in Syihet are badly run, particularly in the state sector. Many children receive no education whatsoever. The only way of obtaining a reasonable education is to attend a private fee paying school which I would be unable to afford and my daughter would grow up illiterate and with no prospects of a future career.

6.   Health care in Syihet is poor. Hospitals for ordinary people are overcrowded and badly organised. It takes many weeks to see a doctor except in the case of accident or serious illness. My daughter is very young and I am concerned that she would not receive adequate medical treatment if she became ill.

7.   Also if I and my family were to be returned to Bangladesh, we would have no accommodation. We own no property in Bangladesh and as there is no housing system we would have to recourse to living on the streets. Once this course of action is taken it is extremely difficult to improve matters and my daughter would be brought up in circumstances where she had no stable roof over her head and where she would be exposed to the worst elements of the weather. These living conditions would be extremely detrimental to her health. My family in Bangladesh have insufficient space to offer us accommodation and I have no money with which I might buy or rent a property."

The applicant's wife said:

"3.  ... Anisa was born in the United Kingdom. My parents and my brothers reside in this country and Anisa has regular contact with all of them. If my husband were to be removed from the United Kingdom and myself and my daughter were forced to return with him to Bangladesh then my daughter would be deprived of her family life with her grandparents and uncles and their families.

4.   Syihet City from where both my husband and myself originate is a very poor area where employment and housing are scarce. Neither my husband nor myself have any property there and if we were to be returned we would have no means of obtaining accommodation. Although my husband has family in Bangladesh and I have two sisters in that country, they all have family of their own and already live in overcrowded conditions. They would not therefore be in a position to assist my husband and myself with accommodation and we would be forced to literally live in the gutter."

Tucker J gave leave to move on 18th December 1997. The respondent filed an affidavit in response from Mr. Gammons, a senior executive officer employed in the Immigration Service Enforcement Directorate. He set out the history and stated that the application for leave to remain had been considered under the Secretary of State's guidelines DP/3/96. He then said at paragraphs 6 to 12:

"6.  The Secretary of State accepted that the marriage was genuine. He noted, however, the marriage had not subsisted for two years prior to the date of the commencement of enforcement action and that the applicant's wife had spent most of her life in Bangladesh. The Secretary of State also considered that she and the child could reasonably be expected to adapt to life there should they wish to accompany the applicant on removal. The application therefore fell outside the terms of the policy guidance.

7.   The Secretary of State further considered whether the family's circumstances warranted exceptional consideration outside the policy. He took into account Anisa's rights as a British citizen and recognised that, if she grew up in Bangladesh, she would probably lack some advantages which she would have if she grew up here. The Secretary of State was also aware that some disruption to family life would occur if the applicant's wife and child did not accompany him to Bangladesh.

8.   The Secretary of State concluded that the importance of maintaining immigration control outweighed the compassionate circumstances of the Applicant's case.

9.   On 11 April 1997 the Secretary of State notified the Applicant that he would not be granted leave to remain in the United Kingdom. The Minister wrote to the Applicant's Member of Parliament to like effect on 23 July 1997. The Secretary of State wrote a further letter on 8 December 1997. In the penultimate paragraph of that last letter the word 'irrelevant' was inappropriately used. The Secretary of State accepts that the matters raised by the Applicant are relevant but, for the reasons he has given, he does not consider that they justify the grant of exceptional leave to remain.

10. I note that the Applicant's grounds of application for judicial review seek to rely upon the abolition of the 'primary purpose' rule. If the Applicant were able to meet the other requirements of the Immigration Rules in full then it is not disputed that he would qualify for entry clearance. The Secretary of State does not accept, however, that the Applicant would necessarily be granted entry clearance if he were to apply for it in the proper manner. That would be a matter for the entry clearance officer to assess at the relevant time. Even if one accepts that the Applicant would fulfil the requirements of the Rules, that in itself is not a reason for absolving him from the need to return abroad to apply. It is the Secretary of State's view that to allow illegal entrants routinely to remain on the basis of marriage would undermine the Immigration Rules; and would also seriously prejudice the pre-entry control since spouses who chose to circumvent the entry clearance requirement (for example by entering unlawfully as visitors) would know they were unlikely to face sanctions for doing so, provided only that their marriages were genuine.

11. Finally, the policy guidance document DP3/96 was formulated to deal with exceptional cases outside the Immigration Rules. Its purpose was to promote consistent decision making. It was also formulated with regard to inter alia the European Convention on Human Rights, though the document does not refer to the Convention. But the policy in DP3/96 stands on its own merits. The policy is not 'follow Article 8 of the ECHR'. The Secretary of State believes that DP3/96 is in accordance with Article 8 of the ECHR. But, if the courts were to rule otherwise, this would not mean that the Secretary of State was misapplying his own policy. It would be a reason for the Secretary of State to consider whether to alter his policy.

12. The Government supports the Bill to incorporate the European Convention on Human Rights. But it is for Parliament to decide whether, when and in what form the Bill should be enacted. For the present, the Secretary of State proceeds on the law as it is." About a fortnight before the hearing of this application for judicial review, the applicant, his wife, his brother, his mother and his father-in-law deposed to additional affidavits. I would have been troubled by the late production of such a quantity of evidence which the Secretary of State would not have had a chance to consider if it had raised any new point of substance, but those affidavits did not add materially to the information which was available to the Secretary of State at the leave stage, and to which Mr. Gammons has had an opportunity to respond.

On 17th April, four days before the hearing began before me, the applicant's wife deposed to a fourth affidavit producing a report prepared by UNICEF relating to conditions in Bangladesh and India which showed that mortality rates for under-fives in Bangladesh are very high. Apropos this new information she said:

"7.  It is suggested that my daughter and I might accompany my husband to Bangladesh. It is clear that the Secretary of State for the Home Department has not considered the conditions to which my daughter would be subjected if this were to happen.

Disease and illness is rife and the mortality rates of under five year olds is unacceptably high. Bangladesh suffers extremes of poverty, overpopulation, underemployment and unemployment.

8.   For women and children there are problems of gender discrimination, premature mortality, widespread illiteracy, early malnutrition and infectious diseases. Survival both for my daughter and myself if we were to accompany my husband should he be returned to Bangladesh as there is extremely little in the way of trained medical care."

I have mentioned the grounds in Form 86A. They do not suggest, nor had it been suggested in representations to the Secretary of State, that conditions in Bangladesh generally were so unsatisfactory that it would unreasonable to expect a child to accompany its mother if she chose to go there.

Turning to the facts of Mr. Patel's case, he is an Indian citizen who arrived in the United Kingdom in November 1995 hidden in a commercial vehicle. He applied for asylum on 30th November 1995, was interviewed, and was served with notice to an illegal entrant on 8th January 1996. In February his asylum application was refused. An appeal against that refusal was dismissed by the special adjudicator on 26th July 1996. The Immigration Appeal Tribunal refused leave to appeal. On 5th August 1996 he married Bilkisbanu Gulam Manbhad. The religious ceremony followed on 2nd November. On 14th November 1996 he applied for leave to remain on the basis of the marriage since his wife has indefinite leave to remain in the United Kingdom. The application was refused by letter dated 2nd February 1997:

"As you know, your client has admitted to having entered the United Kingdom unlawfully, and on 8 January 1996 he was served with form IS 151A, notice to an illegal entrant. In view of his unlawful status you will appreciate that he is not entitled to have his application considered under the Immigration Rules. Nevertheless, in line with normal practice, it has been considered, exceptionally, in accordance with the Secretary of State's guidelines for determining marriage applications in enforcement cases.

Under these guidelines (known as DP3/96) the question of whether a marriage is genuine and subsisting is secondary to the question of its timing. As a matter of policy, the Secretary of State is not prepared to grant leave to remain on the basis of marriage to illegal entrants who marry in the full knowledge that they are subject to enforcement action. Therefore, as your client's marriage post dates the service of illegal entry notice I regret that his application must be refused.

Illegal entrants who do not qualify for the exercise of the Secretary of State's discretion on the basis of marriage may nevertheless be allowed to remain in the United Kingdom if there are other wholly compelling reasons for not enforcing their departure.

Examples might be serious ill health or the presence of a child who is a British citizen (although children under the age of 11 are generally considered young enough to be able to adapt to life abroad). As no such reasons have been advanced in your client's case his removal to India will proceed subject to the outcome of the present judicial review proceedings.

It will be open to your client's wife to accompany him when he is removed and she will be given the opportunity to do so at public expense if necessary. Equally, it will be open to your client 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 in advance how long such an application would take to process, or to guarantee the outcome."

In August 1997 a son, Amir Patel, was born, and Mrs Patel is expecting their second child in four to five months time. The Secretary of State was asked to reconsider the matter in the light of Amir's birth. He did so and said in a letter of 11th January 1998:

"The Secretary of State has carefully considered the representations which you have submitted and has noted the presence of the couple's child, born on the 8th August 1997. However, children under the age of 11 are generally considered young enough to adapt to life abroad if necessary, therefore his presence does not provide your client with a basis of stay in the United Kingdom. In the circumstances the Secretary of State considers that although your client's removal may cause disruption to the lives of his wife and child, he concludes that this is justified in the interests of a fair and effective immigration control.

It will also be open to your client's wife and child to accompany him when he is removed and they will be given the opportunity to do so at public expense if necessary. They are not of course obliged to do so. Equally, it will be open to your client 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 in advance how long such an application would take to process, or to guarantee the outcome."

Application was made for leave to move for judicial review. The grounds raised, inter alia, Article 8 of the European Convention. Nothing was said as to conditions in Gujerat from whence the applicant comes. Having had sight of the grounds, the Secretary of State wrote a further letter of 12th February 1998, reciting the history of the matter, and said at paragraphs 5 to 7:

"On 14 November 1996 an application was made on behalf of your client for leave to remain on the basis of his marriage on 5th August 1996 to Bilkibanu Gulam Manbhad who had been granted indefinite leave to remain in the United Kingdom in July 1994. In view of your client's unlawful status you will appreciate that he was not entitled to have his application considered under the Immigration Rules. Nevertheless, in line with normal practice, it was considered exceptionally, in accordance with DP3/96, the Secretary of State's guidelines for determining marriage applications in enforcement cases. Under these guidelines the question of whether a marriage is genuine and subsisting is secondary to the question of its timing. As a matter of policy the Secretary of State is not prepared to grant leave to remain on the basis of marriage to illegal entrants who marry and take on family commitments in the full knowledge that they are subject to enforcement action. Therefore, as your client's marriage post-dates the service of the illegal entry notice his application was refused on 2 February 1997.

6.   Following the birth of your client's child on 8 August 1997, you requested that the Secretary of State's refusal to grant leave to remain be reconsidered. However, the Secretary of State decided to maintain his refusal and you were informed of this decision by letter dated 11 January 1998. The Secretary of State has given careful consideration to the presence of your client's child and notes from your JR bundle that your client's wife is pregnant again. However, children under the age of 11 are generally considered young enough to adapt to life abroad if necessary. Therefore, the presence of your client's child does not provide your client with a basis of stay in the United Kingdom.

7.   It will be open to your client's wife and child to accompany him when he is removed and they will be given the opportunity to do so at public expense if necessary. They are, of course, not obliged to do so. Equally, it will be open to your client 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 in advance how long such an application would take to process, or to guarantee the outcome. The Secretary of State has taken into account the United Kingdom's obligations under Article 8 of the European Convention on Human Rights. He has taken into consideration the effect which removal would have on your client's family life, and also the effect which removal would have on your client's wife and child. If Mr. Patel's wife and child choose not to accompany him to India the Secretary of State considers that any interference which there would be to their family life would be justified in the interests of maintaining a fair and effective immigration control."

The next day Moses J gave leave to move for judicial review.

Mr. Gammons deposed to an affidavit in response to the grounds set out in the application for judicial review. In the affidavit he explained why the applicant's marriage did not fall within the guidelines contained in DP/3/96 and added that: "Further consideration was then given to his application to see if there were other compassionate factors that might constitute a compelling reason for making him an exception to the normal practice of removing illegal entrants but none was identified."

He added: "13. The Secretary of State considered the grounds on which leave to move was sought and the effect the removal of the Applicant would have on his wife and children. The Secretary of State did not accept that removing the Applicant would oblige his family to travel with him. His wife, as a person settled in the United Kingdom, and his son, and any unborn child later born in the United Kingdom, being British citizens, cannot be compelled to leave this country. In any event, the Applicant can apply for entry clearance to return to the United Kingdom, and his wife can readily support such an application from here should she choose not to accompany him. Although this would entail some disruption to family life the Secretary of State considers that this is justified in the interests of maintaining the integrity of the immigration control. I am informed by the British High Commission in Delhi and believe that the average waiting time for an interview appointment for an application for entry clearance to come from India to the United Kingdom as a spouse is six weeks. Subject to the satisfaction of the relevant immigration rules, entry clearance may be issued on the day of interview.

14. Even if, in the interests of family unity, Mr Patel's wife decided that she and the couple's children should accompany the Applicant to India, the Secretary of State does not accept that it would be unreasonable to expect the family to live there. The Applicant's wife is an Indian national who arrived in the United Kingdom in July 1994 and was granted indefinite leave to remain. The Secretary of State considers that she has first hand knowledge of the Indian culture and is of the view that she would have no difficulty re-adjusting to life in India. She has been settled in the United Kingdom for less than 10 years and would not benefit from consideration under paragraph (ii)b of the notes in DP3/96. The couple's son is young enough to adapt to life abroad and as a British citizen he would have a right to return to the United Kingdom at any time. Furthermore should the couple wish their unborn child to benefit from the advantages of having British citizenship the Secretary of State considered it would not be unreasonable to expect the Applicant's wife to delay her departure from the United Kingdom until after the birth of the child. The Secretary of State did not consider that the Applicant's decision to enter into further family commitments in the full knowledge that he was subject to enforcement action was a matter from which he should benefit.

15. The Secretary of State has taken into account Amir's rights as a British citizen and he recognises that, were he to grow up abroad, he may forego certain advantages which he would have if he remained in the United Kingdom. But he does not consider that this factor and the other circumstances of the case outweigh the importance of maintaining immigration control by removing the Applicant."

On 16th April the applicant and his wife each deposed to an affidavit. Mrs Patel's affidavit explains that she would like to give birth to her second child in the United Kingdom because of the health care facilities available here. She also produces the UNICEF report which shows that Gujerat has very high infant mortality rates. She says that sanitation is very poor there and there is much overcrowding.

In the light of those facts it is common ground between Mr. Kadri QC, who appears for both applicants, and Mr. Pannick QC, who appears on behalf of the Secretary of State, that each of the applicants is an illegal entrant and is therefore subject to removal from the United Kingdom. Neither applicant has any entitlement under the immigration rules to remain in the United Kingdom on the basis of his marriage (see paragraphs 284(i) and (iv) and 286 of HC 295 as amended from 5th June 1997.

Merely because the applicants have no entitlement to remain here under the rules does not mean that the Secretary of State shuts his eyes to the fact that many illegal entrants will marry and have children while they are staying unlawfully in the United Kingdom. He has devised extra statutory policies which address this problem. Where the marriage came to the Department's notice on or before 13th March 1996, the policy was contained in "Marriage and Children" (DP2/93). Where the marriage came to the Department's notice after that date, DP/2/93 has been superseded by "Marriage Policy" DP/3/96. The introduction to DP/2/93 said:

"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 policy was then set out:

"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

(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, most commonly as a result of having been born in the United Kingdom to a parent settled here...."

Note (i) said this:

"The subject's immigration history is of little relevance once it has been concluded that the marriage is genuine and subsisting."

Note (ii) said:

"Enforcement action may be inappropriate where the spouse or the foreign national is pregnant with a child who would have the right of abode here even if born outside the United Kingdom."

Paragraph 3 said:

"3.  In considering whether it is reasonable for a spouse to accompany on removal under paragraph 2(c) above, whilst the onus is on the United Kingdom settled spouse to make out a case for why it is unreasonable for him/her to join the family outside the United Kingdom, in general terms cases should be conceded if the United Kingdom settled spouse

(a)  has strong family ties in the United Kingdom; or

(b)  has lengthy residence in the United Kingdom; or

(c)  suffers from ill health such that his/her quality of life would be significantly impaired if he/she were to accompany his/her spouse on removal."

Article 8 was again mentioned in another context in paragraph 5 of DP/2/93.

The introduction to DP/3/96 does not mention Article 8 and is in these terms:

"This notice 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. This notice supersedes DP2/93 which is hereby cancelled, subject to the transitional provisions set out in paragraph 10 of this instruction. Deportation cases fall to be considered within the framework of the Immigration Rules and the attached guidance should be read in conjunction with those Rules. Although illegal entry cases are considered outside the Rules, any relevant compassionate circumstances, including those referred to below, should be considered before a decision to remove is taken."

Paragraph 2 says:

"Paragraph 364 of the Immigration Rules explains that deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained here without authority but that all the known relevant factors must be taken into account before a decision is reached. These include:

(vii): Compassionate circumstances."

Paragraph 3 says:

"Where persons do not qualify for leave to remain under the Immigration Rules and are to be considered for deportation, or where they are illegal entrants liable to removal, but seek nevertheless to remain on the basis of marriage in the United Kingdom, the following paragraphs of this guidance apply.

4.   Where enforcement action is under consideration and the offender is married to someone settled here a judgment will need to be reached on the weight to be attached to the marriage as a compassionate factor. Caseworkers should bear in mind that paragraph 284 of the Immigration Rules, which sets out the requirements to be met for an extension of stay as the spouse of a person present and settled in the United Kingdom, specifically requires, amongst other things, a person to have a limited leave to remain here and to have not remained here in breach of the immigration laws, in order to obtain leave to remain on that basis. Therefore, the fact that an offender is married to a person settled here does not give him/her any right to remain under the Rules.

Marriages that Pre-Date Enforcement Action

5.   As a general rule, deportation action under 3(5)(a) or (3)(5)(b) (in non-criminal cases) or illegal entry action should not normally be initiated in the following circumstances (but see notes below):

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 2 years before the commencement of enforcement action;

and

b)   it is unreasonable to expect the settled spouse to accompany his/her spouse on removal."

In deciding whether it is reasonable for the settled spouse to accompany the spouse who is being removed, DP3/96 adopts a similar approach to that which was contained in DP2/93. Further, the notes make it clear that service of illegal entry papers amounts to the commencement of enforcement action for the purposes of the policy.

Children are dealt with in paragraph 7 as follows:

"7.  The presence of children with the right of abode in the UK (see note below) is a factor to be taken into account. In cases involving children who have the right of abode, the crucial question is whether it is reasonable for the child to accompany his/her parents abroad. Factors to be considered include:

a)   the age of the child (in most cases a child of 10 or younger could reasonably be expected to adapt to life abroad);

b)   serious ill-health for which treatment is not available in the country to which the family is going."

Paragraph 8 deals with marriages that post-date enforcement action and is in these terms:

"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. . . . 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 action be stopped and the person allowed to stay."

Both Mr. Ahmed's and Mr. Patel's marriages came to the Department's notice after 13th March 1996 and therefore fell to be considered under DP3/96. Mr. Patel's marriage falls within paragraph 8 of DP3/96. It will be noted that, whilst there is explicit guidance for post- enforcement marriages and for marriages which meet the two year criterion in paragraph 5 of the guidance, there is no specific guidance in respect of marriages which take place prior to enforcement action but which have not subsisted for two years before it is commenced. Mr. Ahmed's marriage falls into this category. It would appear from the Secretary of State's letters, dated 3rd July 1997 and 8th December 1997, that, in practice, a policy similar to that set out in paragraph 8 of DP3/96 is followed; that is to say, compassionate circumstances will be considered but they will have to be so compelling as to amount to most exceptional circumstances in order to justify stopping removal action.

Against that factual background, Mr. Kadri began his submissions by pointing out that the United Kingdom government was signatory to and had ratified a number of international covenants or conventions, including the United Nations Convention on the Rights of the Child, in addition to the European Convention. In Article 3.1 of the former the signatories agreed that in all actions concerning children, the best interests of the child shall be a primary consideration. The United Kingdom's Instrument of Ratification contained a number of reservations, including the following:

"Immigration

The United Kingdom reserves the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, and to the acquisition and possession of citizenship, as it may deem necessary from time to time."

Article 8 of the European Convention 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 wellbeing 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."

Whilst recognizing that such conventions were not part of our domestic law, Mr. Kadri nevertheless submits that their ratification by the United Kingdom government gives rise to a legitimate expectation that the Secretary of State will follow them when exercising his discretion under the Prerogative. He refers to the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh 128 ALR 353. The respondent, who had married an Australian citizen and had a number of children, was ordered to be deported. The Minister's decision was quashed by the Federal Court on the basis that Australia's accession to the Convention on the Rights of the Child created a legitimate expectation that the respondent's application for resident status would be treated in accordance with the Convention, with the children's best interests as a primary consideration. The Minister's appeal was dismissed by the Australian High Court. Mason CJ and Deane J said at page 365:

"Ratification of a convention is a positive statement by the Executive Government of this country to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as 'a primary consideration'. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it."

Toohey J said at page 374:

"It follows that while Australia's ratification of the Convention does not go so far as to incorporate it into domestic law, it does have consequences for agencies of the Executive Government of the Commonwealth. It results in an expectation that those making administrative decisions in actions concerning children will take into account as a primary consideration the best interests of the children and that, if they intend not to do so, they will give the persons affected an opportunity to argue against such a course. It may be said that such a view of ratification will have undue consequences for decision-makers. But it is important to bear in mind that we are not concerned with enforceable obligations, but with legitimate expectations, and that there can be no legitimate expectation if the actions of the legislature or the executive are inconsistent with such an expectation."

Gaudron J approached the case in a somewhat different manner. On page 375 he said this:

"I agree with Mason CJ and Deane J as to the status of the Convention in Australian law. However, I consider that the Convention is only of subsidiary significance in this case. What is significant is the status of the children as Australian citizens. Citizenship involves more than obligations on the part of the individual to the community constituting the body politic of which he or she is a member. It involves obligations on the part of the body politic to the individual, especially if the individual is in a position of vulnerability. And there are particular obligations to the child citizen in need of protection. So much was recognised as the duty of kings, which gave rise to the parens patriae jurisdiction of the courts. No less is required of the government and the courts of a civilised democratic society.

In my view, it is arguable that citizenship carries with it a common law right on the part of children and their parents to have a child's best interests taken into account, at least as a primary consideration, in all discretionary decisions by governments and government agencies which directly affect that child's individual welfare, particularly decisions which affect children as dramatically and as fundamentally as those involved in this case. And it may be that, if there is a right of that kind, a decision-maker is required, at least in some circumstances, to initiate appropriate inquiries, as Carr and Lee JJ held should have happened in this case. However, it was not argued that there is any such right and, thus, the case falls to be decided by reference to the requirements of natural justice.

Quite apart from the Convention or its ratification, any reasonable person who considered the matter would, in my view, assume that the best interests of the child would be a primary consideration in all administrative decisions which directly affect children as individuals and which have consequences for their future welfare. Further, they would assume or expect that the interests of the child would be taken into account in that way as a matter of course and without any need for the issue to be raised with the decision-maker. They would make that assumption or have that expectation because of the special vulnerability of children, particularly where the break-up of the family unit is, or may be involved, and because of their expectation that a civilised society would be alert to its responsibilities to children who are, or may be, in need of protection.

The significance of the Convention, in my view, is that it gives expression to a fundamental human right which is taken for granted by Australian society, in the sense that it is valued and respected here as in other civilised countries. And if there were any doubt whether that were so, ratification would tend to confirm the significance of the right within our society. Given that the Convention gives expression to an important right valued by the Australian community, it is reasonable to speak of an expectation that the Convention would be given effect.

However, that may not be so in the case of a treaty or convention that is not in harmony with community values and expectations."

In R. v. Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696, the House of Lords had to consider the argument that the Secretary of State, in issuing directives under the Broadcasting Act 1981, had failed to have proper regard to Article 10 of the European Convention. Lord Ackner said at page 761H:

"The fallacy of this submission is however plain. If the Secretary of State was obliged to have proper regard to the Convention, i.e. to conform with article 10, this inevitably would result in incorporating the Convention into English domestic law by the back door. It would oblige the courts to police the operation of the Convention and to ask themselves in each case, where there was a challenge, whether the restrictions were 'necessary in a democratic society...' applying the principles enunciated in the decisions of the European Court of Human Rights. The treaty, not having been incorporated in English law, cannot be a source of rights and obligations and the question 'Did the Secretary of State act in breach of article 10?' does not therefore arise.

As was recently stated by Lord Oliver of Aylmerton in J.H. Rayner (Mincing Lane) Ltd v Department of Trade and Industry (the 'International Tin Council case') [1990] 2 AC 418,500:

'Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant."

Lord Bridge said at page 748:

"Hence, it is submitted, when a statute confers upon an administrative authority a discretion capable of being exercised in a way which infringes any basic human right protected by the Convention, it may similarly be presumed that the legislative intention was that the discretion should be exercised within the limitations which the Convention imposes. I confess that I found considerable persuasive force in this submission. But in the end I have been convinced that the logic of it is flawed. When confronted with a simple choice between two possible interpretations of some specific statutory provision, the presumption whereby the courts prefer that which avoids conflict between our domestic legislation and our international treaty obligations is a mere canon of construction which involves no importation of international law into the domestic field. But where Parliament has conferred on the executive an administrative discretion without indicating the precise limits within which it must be exercised, to presume that it must be exercised within Convention limits would be to go far beyond the resolution of an ambiguity.

It would be to impute to Parliament an intention not only that the executive should exercise the discretion in conformity with the Convention, but also that the domestic courts should enforce that conformity by the importation into domestic administrative law of the text of the Convention and the jurisprudence of the European Court of Human Rights in the interpretation and application of it. If such a presumption is to apply to the statutory discretion exercised by the Secretary of State under section 29(3) of the Act of 1981 in the instant case, it must also apply to any other statutory discretion exercised by the executive which is capable of involving an infringement of Convention rights. When Parliament has been content for so long to leave those who complain that their Convention rights have been infringed to seek their remedy in Strasbourg, it would be surprising suddenly to find that the judiciary had, without Parliament's aid, the means to incorporate the Convention into such an important area of domestic law and I cannot escape the conclusion that this would be a judicial usurpation of the legislative function."

Mr. Kadri recognizes that his submissions based on Teoh run contrary to the decision of the House of Lords in Brind, but he argues that Brind is distinguishable upon the basis that (a) it was concerned with a statutory discretion and not one exercised under the Prerogative, and (b) because in the case of the European Convention, we have now reached the stage where the United Kingdom has not merely ratified the Convention, but the present government, having publicly stated its commitment to incorporate the Convention into our domestic law, has laid the Human Rights Bill before Parliament. Hence, Mr. Kadri submits that in these circumstances the applicants have, in common with other persons residing in the United Kingdom, a legitimate expectation that the Home Secretary, in exercising any discretion, will put into effect the government's commitment to the Convention unless precluded from doing so by statute or any subordinate legislation.

Mr. Kadri submits that DP3/96 is not compatible with Article 8 of the European Convention and indeed amounts to a deliberate invitation to ignore it because it does not show a proper respect for family life. Unlike DP2/93 it does not refer to the European Convention and the Secretary of State's policy should be to "follow the Convention". Nor, he submits, is DP3/96 compatible with Article 3 of the Convention on the Rights of the Child, since it does not provide that the best interests of British children shall be a primary consideration. He cites Teoh in support of his submission and argues that the United Kingdom's reservation relates to those children who do not have the right to enter and remain in the United Kingdom and not to the applicants' children who are British citizens. He further submits that, since both the applicants' children are British citizens, they are entitled under the common law, regardless of any international or European Convention, to have their interests regarded as being, if not of paramount importance, then at least as a primary consideration. He cites the approach of Gaudron J in Teoh in support of this proposition. He submits that no reasonable Secretary of State would send British children to India or Bangladesh, given the conditions generally of those countries as evidenced in the UNICEF reports, and given the specific circumstances in which they would find themselves as explained in their parents' affidavits.

Whilst, as a generality, it may be reasonable to say that young children can adapt to life abroad with their parents, he submits that the Secretary of State must look at each case on its individual merits and that the particular circumstances here are such that it was Wednesbury perverse for the Secretary of State to conclude that the applicants' children could accompany them to Bangladesh or to India respectively. Whilst the applicants did not draw the UNICEF material to the Secretary of State's attention until after the decisions under challenge in these proceedings, he should have been aware of the conditions described in the report and was under a duty to investigate for himself the conditions to which British children might be sent. To say in the letter of 8th December 1997 that "conditions in Bangladesh may not be as good as in the United Kingdom" was such an understatement as to be unreasonable. The Secretary of State has acknowledged that it was wrong to have said in that letter that this factor was "irrelevant".

Finally, he submits that the policies in DP2/93 and DP3/96 were formulated against the background of Immigration Rules which required an applicant seeking leave to enter under the rules to show that the primary purpose of his or her marriage was not to obtain admission to the United Kingdom. The requirement in DP2/93 and DP3/96 that the marriage must pre-date enforcement action by two years was inserted to ensure that an illegal entrant was in no better position than a person who had entered lawfully and had been given temporary leave for 12 months under rule 285. Since the abolition of the primary purpose rule as from 5th June 1997, he submits that it is irrational for the Secretary of State to continue to insist on the two year rule. The only consequence would be that the applicants, having been removed from the United Kingdom at public expense, will then be able to seek entry under the rules and, subject only to obtaining entry clearance, they qualify for entry under the rules. A desire that the applicants should join the queue for entry clearance is not a sufficient justification for the severe disruption that would be caused to the lives of both of the applicants' families.

Mr. Pannick submits that the applicants are seeking not merely an extra statutory concession as contained in DP3/96, but that an exception should be made in their favour beyond the extra statutory concession contained in that policy document. In such circumstances, he submits that the court should be slow to interfere with the Secretary of State's discretion. He refers to the Court of Appeal decision in R v Secretary of State for the Home Department, ex parte Gangadeen and Khan [1998] Imm AR 106.

Mr. Khan was an overstayer whose marriage had broken down but who would lose contact with his daughter if he was deported. Mrs. Gangadeen was an illegal entrant whose son would lose contact with his father if she was deported and her child went with her. As the headnote records:

"It was argued before the court that although the Secretary of State, in applying policy DP/2/93, would carry out a balancing act, in so doing and in the light of the provisions of the European Convention on Human Rights and the UN Convention on the Rights of the Child, primacy should be accorded to the interests of any children who would be affected by the deportation of one of the parents."

Hirst L.J. at page 115 accepted the submission made on behalf of the Secretary of State:

"that it is right for the court to confer a broad measure of discretion on the Home Secretary in relation to the application of the Policy, so long of course, as he has regard to that policy, and makes a decision which is not inherently irrational; and also bearing in mind that the greater the inference with human rights the more the court will require by way of justification (see eg R v Ministry of Defence ex parte Smith [1996] QB 517, 554)".

He then turned to consider the status of the European Convention in English law and its impact, if any, on the interpretation of the policy. He concluded that, whilst the jurisprudence of the European Court of Human Rights was not to be entirely excluded, its relevance was as background to a complaint of irrationality. He adopted the dicta of Sir Thomas Bingham MR (as he then was) in Smith:

"It is, inevitably, common ground that the United Kingdom's obligation, binding in international law, to respect and secure compliance with this article is not one that is enforceable by domestic courts. The relevance of the Convention in the present context is as background to the complaint of irrationality. The fact that a decision-maker failed to take account of Convention obligations when exercising an administrative discretion is not of itself a ground for impugning that exercise of discretion."

Hirst L.J. then referred to the United Nations Convention on the Rights of the Child but stated that the United Kingdom's reservation to that Convention (which I have read) "distinguishes the position in the United Kingdom from that in for example, Australia and New Zealand where the United Nations Convention has been directly applied (Minister of Immigration and Ethnic Affairs v Teoh 128 ALR 353 and Tavita v Minister of Immigration 2 NZLR 257)." He then considered the large number of cases where the European Court of Human Rights had considered the importance of family life and the interests of the child in the context of Article 8. Having cited the three most relevant cases in his view, he concluded at page 119:

"In my judgment these three cases demonstrate quite clearly that, in their interpretation of article 8 in the present context, the Court of Human Rights and the Commission approach the problem as a straight-forward balancing exercise, in which the scales start even, and where the weight to be given to the considerations on each side of the balance is to be assessed according to the individual circumstances of the case; thus they do not support the notion that paramountcy is to be given to the interests of the child. . . ."

He therefore upheld the submission "that the Home Secretary, in laying down and applying the Policy on the basis that the scales start even with no preferences being given to the interests of the child, he was fully in line with article 8 as interpreted in the European jurisprudence."

Swinton Thomas LJ agreed with Hirst LJ and added that, whilst the principle that the welfare of the child is the first and paramount consideration, had been laid down in the context of section 1 of the Children Act 1989:

"That is not the position in immigration cases where, as the jurisprudence shows, the interests of all parties, including the children, have to be weighed in the balance with immigration policy and other relevant factors, including those matters set out in DP/2/93."

In the light of those dicta, Mr. Pannick submits that ratification of the European Convention gives rise to no legitimate expectation that the Secretary of State will follow its provisions in the exercise of his discretionary powers; the only legitimate expectation that the applicants have is that DP/3/96 will be applied and that, in any event, Article 8 merely requires a balancing exercise as between respect for family life and the interests of children within the family on the one hand, and the maintenance of immigration control on the other. That, he submits, is what the Secretary of State has done in DP/3/96 which is therefore in accord with Article 8, even though the Secretary of State did not set out deliberately to follow Article 8.

In broad terms, the longer a marriage has lasted before the commencement of enforcement action, the stronger will be the compassionate case for allowing the applicant to remain, even though he is in breach of immigration laws. The policy does not rule out consideration of compassionate circumstances if the marriage has not lasted for two years. It positively says that they should be considered, but it makes it clear that, because a concession is being sought in respect of what is already an extra statutory concession, those compassionate circumstances will have to be compelling if they are to persuade the Secretary of State to exercise his discretion in the applicants' favour.

Mr. Pannick submits that the principles to be found in the speeches of Lord Bridge and Lord Ackner in Brind apply to the exercise of a discretion under the prerogative, just as they do to the exercise of a statutory discretion. It makes no difference what the source of the Secretary of State's discretion is. Ratification of an instrument, such as the European Convention, does not give right to any legitimate expectation that the Secretary of State will follow its terms in exercising his discretion. That would be to introduce the Convention by the back door, as it was put in the immigration context in Chundawadra v Immigration Appeal Tribunal [1988] Imm AR 161, per Glidewell L.J. at page 174. Mr. Pannick acknowledged that the distinction between statutory and non-statutory discretion was not raised in Khan, but he submits that Khan was correctly decided, and being concerned with the same non-statutory discretion as is in issue in the present case, is binding upon me. Moreover, he submits that Khan is consistent with the decision of the Court of Appeal in Smith, to which I have referred. In Smith the court was concerned with the United Kingdom's policy towards homosexuals in the armed forces, plainly a matter within the prerogative. I have referred to the dicta of the then Master of the Rolls. Henry L.J. said at page 564A:

"As Sir Thomas Bingham M.R. has said, it is inevitably common ground that the United Kingdom's obligation under international law to respect and secure compliance with article 8 is not enforceable by domestic courts, and so its relevance is simply as 'background to the complaint of irrationality'... If the Convention were part of our law, then, as Simon Brown LJ said in the Divisional Court... the primary judgment on this issue would be for the judges. But Parliament has not given us that primary jurisdiction on this issue. Our present constitutional role was correctly identified by Simon Brown LJ as exercising a secondary or reviewing judgment. As it is, in relation to the Convention, the only primary judicial role lies with the European Court of Human Rights at Strasbourg."

This approach was indorsed by the House of Lords in R v Secretary of State for the Home Department, ex parte Launder [1997] 3 All ER 961, a case dealing with extradition (see the speech of Lord Hope at page 989B). Mr. Pannick submits that the approach adopted in these authorities is different from that adopted by the Australian High Court in Teoh. The fact that the government has announced its intention to incorporate the European Convention into our domestic law and has introduced a Bill into Parliament to that effect makes no difference to the position which is set out in Brind and the other authorities, to which I have referred. Parliament may or may not enact the Human Rights Bill but until it does the Bill is of no legal effect and does not amount to a statement of policy that, until such time as it is enacted, its provisions will be applied by the Secretary of State when exercising a discretion.

I accept Mr. Pannick's submissions. The principles set out in Brind, Smith and Launder are, in my view, equally applicable whether the Secretary of State is exercising a discretion conferred by statute or under the prerogative. The source of the discretionary power is irrelevant for the purpose of deciding whether the United Kingdom's accession to an instrument such as the European Convention gives rise to a legitimate expectation that the Secretary of State will exercise a discretion in any particular way. A different approach has been adopted by the Australian High Court but, even adopting that approach, as Toohey J observed on page 374 of Teoh, "there can be no legitimate expectation if the actions of the legislature or the executive are inconsistent with such an expectation."

In the present case the Secretary of State has clearly set out the policy guidelines that he intends to follow towards cases such as these in DP/3/96. In so far as the applicants have any legitimate expectation, it is that the Secretary of State will follow those guidelines when considering their cases. Mr. Gammons' affidavits make it clear that the applications have been considered under the guidelines. Even if the Secretary of State had been obliged to follow Article 8 in framing the policies which are now set out in DP/3/96, Article 8 does no more than require a balancing exercise to be undertaken, weighing the importance of family life as against the importance of maintaining immigration control (see the dicta of Hirst LJ in Khan). In striking that balance the Secretary of State has a wide margin of appreciation. I am unable to accept Mr. Kadri's submission that DP/3/96 either conflicts with Article 8 or is Wednesbury perverse. It is true that it does not start from the premise that the interests of the applicants' children must be regarded as being of paramount importance. I note that Article 3 of the Convention on the Rights of the Child does not go that far. It provides that the interests of the child shall be a, not the, primary consideration. But, in any event, as the Court of Appeal explained in Khan, the United Kingdom's reservation distinguishes the position in this country from that which is described in Teoh. I do not accept that the United Kingdom's reservation to the Convention has the limited effect submitted by Mr. Kadri. In my view, it enables the United Kingdom to apply the policies in DP/3/96 to persons such as the applicants who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, whether or not they are married and whether or not their children are British citizens.

Mr. Kadri advanced no authority in support of his submission that the interests of the child must be regarded as paramount or as a primary consideration at common law, independently of Article 8. In my view, that submission runs contrary to the dicta of Swinton Thomas LJ in Khan, to which I have referred.

Even though the primary purpose rule has been abolished as one of the criteria which has to be met by those seeking to enter the United Kingdom lawfully with a view to settlement as the spouse of someone who is present and settled here, the general policy of securing the removal of illegal entrants is concerned with a different policy objective. It is intended to encourage compliance with the Immigration Rules and to deter illegal entry. The Secretary of State is entitled, as a matter of discretion, to be reluctant to waive breaches of the Immigration Rules unless there is a strong compassionate case for so doing. The fact that an illegal entrant has married and had children here is clearly relevant in that connection, but the Secretary of State is entitled to take the view that, in general, the longer the marriage has lasted before enforcement action, the stronger the compassionate case is likely to be. Any cut-off point, whether it is 18 months, two years or three years or any other period, could in one sense be described as arbitrary, in that there will always be marriages which fall just on one side or the other of the line. But it cannot be said that the period of two years, described in DP/3/96, is perverse.

It is true, as Mr. Kadri submits, that the applicants, having been removed from the United Kingdom at public expense, will then be able to join the queue to apply for entry clearance in a lawful manner. However, the Secretary of State was entitled to take the view which is set out in paragraph 10 of Mr. Gammons' affidavit in Mr. Ahmed's case, which I have read. Moreover, in view of the terms of rule 320(12) and (19) of the Immigration Rules, it is by no means a foregone conclusion that the applicants will be granted entry clearance if they apply to return to the United Kingdom. If an application is made the entry clearance officer will have to exercise his or her discretion under the Immigration Rules in due course.

Finally, I turn to Mr. Kadri's submission that, on the particular facts of these cases, it was Wednesbury unreasonable for the Secretary of State to in effect require two children, who are British citizens, to return to India and Bangladesh respectively. Whilst I accept that the Secretary of State has to consider each case on its merits, I do not accept that he is under an obligation to conduct any investigation of his own into the circumstances pertaining in the area to which one of the child's parents is to be removed. Having given one extra statutory concession to those whose marriages have been in existence for at least two years prior to enforcement action, the Secretary of State is entitled to say to other illegal entrants, such as the applicants: "I will consider any compelling compassionate circumstances, but the onus is upon you to put them forward." Paragraph 7 of DP/3/96 makes it clear that the presence of children with the right of abode here is a factor to be taken into account. It is not unreasonable for the Secretary of State to take the view that, as a general rule, children of 10 or younger could reasonably be expected to adapt to life abroad with their parents. The Secretary of State must not close his mind to representations from parents that, in their particular case, their child or children will not be able to adapt to life abroad. The onus lies upon the applicant to put forward such information to the Secretary of State. Accordingly, I do not consider that the Secretary of State can be criticised for not dealing with the contents of the UNICEF report or with the detailed material contained in the affidavits from the applicants which post-dated his decision.

In considering the criticisms of the Secretary of State's decisions in these cases, it must be remembered that in cases of this kind the Secretary of State is dealing with a moving target. A refusal of leave to remain does not prevent the disappointed applicant from putting forward fresh representations which will then be considered by the Secretary of State, as occurred in the present cases. Accordingly, where there is evidence that the matter has been reconsidered, it seems to me that criticisms directed at earlier letters, such as the letters of 11th April and 23rd July 1997 in Mr. Ahmed's case, will usually be of little weight. I can detect no error in the letters from the Secretary of State dealing with Mr. Patel's case. The Secretary of State has conceded that the use of the word "irrelevant" in the letter of 8th December 1997 in Mr. Ahmed's case was wrong. The fact that the child would be going to Bangladesh, where conditions are not as good as in the United Kingdom, was plainly relevant. But criticisms of the letter would have force only if, because of his misdirection, the Secretary of State had not considered that factor. It is plain from Mr. Gammons' affidavit, the relevant passages of which I have read, that he did consider this factor but, having considered it, he concluded that it was outweighed by the importance of maintaining immigration control. Detailed consideration was also given to Mr. Patel's circumstances but the same conclusion was reached.

I appreciate that both applicants claim, on the basis of the material which I have set out, that their families, which include in each case a British child, will face a life of destitution and homelessness if they have to return to Bangladesh or to India. There can be no doubt that conditions for both the applicants and their families will be difficult indeed if they are removed from the United Kingdom. But their cases cannot be considered in isolation. Considering each case on its merits does not mean looking only at the individual circumstances and ignoring the wider policy considerations. Those wider policy considerations are part and parcel of the merits of individual cases. The Secretary of State, who receives many such applications, is in the best position to know whether the circumstances described by these applicants can fairly be described as so compelling as to be exceptional. The details are for the Secretary of State to evaluate. This is a court of review, not a Court of Appeal.

Standing back from the detail for a moment, I find it impossible to conclude that the Secretary of State was perverse to strike the balance, as he did, in the circumstances of these two cases, when considering them against the policy background which I have described. Both Mr. Ahmed and his wife come from Sihyet City in Bangladesh. He lived there until 1990 or 1991; she until 1990. Both of them have relatives in Bangladesh. It was not unreasonable for the Secretary of State to say, notwithstanding the conditions that they would face in that country, that she could join her husband there, bringing their young child with her, if she chose. In Mr. Patel's case, he came here from India in November 1995. It is not clear whether he still has relatives there.

Whilst his wife has no family in India, she is also an Indian national who arrived in the United Kingdom in July 1994. Again, in my judgment, it was not unreasonable for the Secretary of State to say that, notwithstanding the conditions in India, she could join her husband there, bringing her child, if that is what she chose to do.

For those reasons, both these applications must be dismissed. It only remains for me to thank both counsel for their very considerable assistance.

MR. PANNICK: The applicants are legally aided. I make no application for costs.

MR. KADRI: I have an application for leave to appeal. Your Lordship has noticed that the matter of legitimate expectation has not been conceded in any of these cases. In Smith it was common ground when there is a prerogative power or the other way round. This is a matter of constitutional importance, whether the United Kingdom government is free to sign international treaties and free to act upon them without restraint from Parliament. Still, it would be said that there is no legitimate expectation either by the people in this country or the world that they will do what they preached to the whole world. I apply for leave for the court to consider whether there is a distinction between these two situations. Secondly, the question of the interests of the child. The matter is already subject to a provisional leave by the House of Lords in the case of Khan, although the objection has been asked. We say there is a distinction there because the matter was not decided after full argument, whether the Article 3 ---.

MR. JUSTICE SULLIVAN: I am not sure I follow the provisional leave. What is the nature of the provisional leave?

MR. KADRI: The House of Lords has given provisional leave and gave until the 22nd of this month to file any objections from the respondent. That is without a hearing, on the papers. The Court of Appeal's direction is not drawn to the fact that that was a permission limited in respect of only British children. Thirdly, your Lordship has said that the affidavit makes it clear that the Secretary of State did not consider that the matter was relevant, although the decision we asked to be quashed says that it was relevant. The affidavit makes it clear. Is it, as a matter of law, right for one officer to explain what was in the mind of the other officer who says that it is relevant to refusal. In the case of Khan, it was the same person who was explaining his letters. The Court of Appeal accepted the explanation.

MR. JUSTICE SULLIVAN: Mr Pannick, anything to say about leave?

MR. PANNICK: I invite you to refuse leave on the merits of the argument. The applicant can then renew the application in the Court of Appeal if so advised. By that stage further information will no doubt be available as to what approach their Lordships'

House is going to take in the Khan case. The Court of Appeal will be able to decide what to do in the light of their Lordships' House's determination. They may decide to grant leave and to order a stay until their Lordships' House has determined the matter or they may refuse leave. I can assure your Lordship and the applicants that there is no question of either of the applicants being removed from this country until the Court of Appeal has decided whether to grant leave in this matter, if your Lordship were to refuse leave. That is my submission.

MR. JUSTICE SULLIVAN: Mr. Kadri, I think you ought to have your leave. I think the distinction between the exercise of the discretion under the prerogative as opposed to the exercise of discretion under statute is a matter of wider importance which has not been considered explicitly before.

MR. KADRI: May I ask that the matter should be expedited?

MR. JUSTICE SULLIVAN: If you want expedition you must ask the Court of Appeal. You may have legal aid taxation.