R v. Secretary of State for the Home Department, Ex parte Ibehi (Eli Mouto)

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

APPLICATION FOR LEAVE TO MOVE FOR JUDICIAL REVIEW

Royal Courts of Justice

The Strand

London WC2

Monday 22nd June, 1998

Before: LORD JUSTICE EVANS, LORD JUSTICE HENRY, LORD JUSTICE SCHIEMANN

Regina- v -The Secretary of State for the Home Deprtment ex parte Eli Mouto Ibehi

MISS AM SHEEHAN (Instructed by Messrs Egole & Co., London N4 3AD) appeared on behalf of the Applicant

MR A MACLEAN (Instructed by The Treasury Solicitor) appeared on behalf of the Respondent

JUDGMENT

LORD JUSTICE EVANS:

Lord Justice Schiemann will give the first judgment.

LORD JUSTICE SCHIEMANN:

Before the court is a renewed application for leave to move in a judicial review case, where leave had been refused by Hidden J last week on 16th June. It is an immigration case. The crucial facts, so far as the chronology is concerned, are these. The applicant claims to have entered the United Kingdom on 23rd April 1991 . In any event, he made an asylum claim on the following day, the 24th. He was served with an illegal entry notice on 10th August 1991 but was not detained. The Secretary of State examined his asylum claim. This examination continued for rather more than three years, and the claim was rejected on 22nd October 1994.

Rather more than a year later, on 28th November 1995, the applicant married and shortly thereafter applied to the Home Office for leave to remain as the spouse of someone lawfully here. That application was rejected by the Secretary of State in a series of decisions which were later reaffirmed. So far as the asylum position is concerned, there was an appeal which was in due course dismissed on 10th December 1997, all this while the applicant was at liberty. He was, however, conditioned to appear at a police station, I think it was once a month, and he duly did this, But when he turned up on 11th May 1998 he was detained. Thereafter removal directions either were or were about to be given, as he knew, but he managed to obtain an injunction from Keene J on 12th May 1998, ex parte, restraining the Home Secretary from removing him until 14th May 1998, two days later.

On that day further representations were made on his behalf. The gist of these was that there was a challenge to a formal decision dated 13th May 1996 in relation to the applicant. That decision of 13th May 1996 dealt with his marriage application under the Home Secretary's policy DP2/93 which applies to, amongst others, illegal immigrants such as the applicant who have contracted marriages. I ought to read the policy itself. It is an instruction which provides guidance on cases involving marriage and children. It reads so far as presently is concerned as follows:

"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 ... 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 ..."

Then there are various refinements of that policy with which we need not presently concern ourselves.

In his letter of 13th May 1996 the writer, writing on behalf of the Immigration Service, says this:

"As was explained in my earlier correspondence, it is the normal practice to remove those persons found to have entered the United Kingdom unlawfully, and discretion is exercised only in the most exceptional cases. Where an illegal entrant has entered into a marriage with a person settled here, it would only be appropriate to consider granting leave to remain, exceptionally, if we are satisfied that the relationship is genuine and that it pre-dates the service of illegal entry notice. Both these precedent conditions must be met and it follows, therefore, that if the marriage post-dates enforcement action - as Mr Ibehi's does by over 4 years - the application to remain is unlikely to succeed. Of course, that is not to say that other compassionate factors will not be taken into consideration; however, they would have to be particularly compelling in order to justify the use of discretion.

In Mr Ibehi's case, his marriage in November 1995 post-dates the service of illegal entry notice in August 1991 and he has not made out a case for the exercise of discretion on other grounds. Although his wife is a British citizen and has no desire to live overseas, it has to be borne in mind that the marriage was entered into in the full knowledge of Mr Ibehi's liability to removal and she was presumably prepared to accept the consequences. The Secretary of State is not persuaded, therefore, that her position constitutes a sufficiently compelling reason for making an exception to the normal practice of removing illegal entrants.

As regards Article 8 of the [European Convention on Human Rights], we reject the claim that removing Mr Ibehi to the Ivory Coast will put us in breach. He is to be removed from the United Kingdom at public expense and his wife is free to accompany him, also at public expense, should this be her wish. ...

Accordingly, his removal as an illegal entrant will proceed, subject to the outcome of his outstanding appeal."

The Secretary of State on 16th May 1998 writes to confirm receipt of further representations from the applicant and states:

"It has been forwarded to ISHQ for their consideration and we await a response, which once ascertained, will be notified to you.

In the meantime your client's detention will continue to be reviewed regularly. It has been decided to maintain his detention presently."

Judicial review proceedings were issued on 27th May 1998. On 2nd June 1998 the Secretary of State wrote the following letter:

"I am writing with reference to your letter of 14th May 1998 ... regarding the above named illegal entrant.

As you may be aware Mr Ibehi's case was reviewed on two previous occasions, on 13 May and on 30 May 1997, when it was decided that the decision of 13 March 1996, to refuse his application to remain in the United Kingdom on the basis of his marriage, should be maintained. The Secretary of State has carefully considered your recent representations, but sees no reason to alter his earlier decision. He has decided, therefore, that arrangements for Mr Ibehi's removal to the Ivory Coast should now proceed."

The applicant seeks to challenge the decisions of 16th May and 2nd June. As will be appreciated, the latter related to his further attempts to obtain leave to remain in the United Kingdom exceptionally, and outside the Immigration Rules, on the basis of his marriage. Whereas the former related to his detention pending his removal from the United Kingdom and, pending consideration being given to his latest application, representations based on his marriage.

The submissions in front of us, made by Miss Sheehan, really deal with two separate matters. One is the applicant's marriage application and, secondly, his detention. The one of greater long term importance, on any basis, which has been substantially addressed in these proceedings, is the marriage application. There is a certain amount of common ground. It fell to be considered under DP/2/93 and it was so considered on 13th March 1996, when the Secretary of State wrote to point out that, since the marriage post-dates the service of notice as an illegal entrant, and was therefore entered into in the full knowledge of Mr Ibehi's immigration status, in the absence of any overwhelming compassionate factors which may justify the use of the Secretary of State's discretion, the marriage does not benefit the applicant.

It is common ground that the application did not fall to be granted within the Immigration Rules. The relevant Rule being paragraph 284 of the Immigration Rules. It is common ground that his marriage postdated enforcement action against him. So it is obvious and not disputed that paragraph 2(a) of DP/2/93 was not satisfied. It is, I think, common ground that, as was pointed out by Hirst LJ in a case called Gangadeen v Secretary of State for the Home Department [1998] Imm.A.R. 106 at page 115, that the courts are slow to interfere with the Secretary of State's judgment of facts under that policy.

The present challenge in relation to the policy, and the decision taken under it, really has a twofold basis. One is against the very policy itself, it being alleged that this policy is incompatible with this county's obligations under the European Convention on Human Rights. The second, and very related way of making the same point, is that the decision in relation to the applicant taken under this policy is inconsistent with those obligations. The European Convention on Human Rights in Article 8 says this:

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accord 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."

As is often the case in relation to Articles under that Convention, the reader coming to it the first time has some difficulty in knowing the ambit of the rights conferred and the ambit of the restrictions on those rights. However, as is again now commonly the case, this Article has been the subject of a fair amount of interpretation by the European Commission on Human Rights and the European Court of Human Rights. Article 8 and immigration policy, has been the subject of a decision by this court as recently as last November called Gangadeen v Secretary of State for the Home Department and Khan v Secretary of State for the Home Department [1998] Imm.A.R. 106. That was a case in which there were not merely a married couple but also a child which had been born to them. So Article 8 was relied upon. Also there was relied upon, in relation to the child, a separate convention to which this country was a party but with which we are not presently concerned.

In the course of giving his judgment, with which the other two judges agreed, Hirst LJ dealt with the case law of the European Court and Commission in relation to immigration control and Article 8. He said this at page 118:

"By far the most significant case in this context to my mind is Abdulaziz v United Kingdom [1985] 7 EHRR 471. ... In that case the applicants were lawfully and permanently settled in the United Kingdom in accordance with the immigration rules in force at the material time, but their husbands were refused permission to remain with or join them there. The case raised a number of issues under the Convention, involving not only article 8 but also sex discrimination, and the applicants were successful under the latter but not under the former head. On this topic the ratio of the court was as follows:

`The court recalls that, although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective `respect' for family life. However, especially as far as those positive obligations are concerned, the notion of `respect' is not clear-cut: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In particular, in the area now under consideration, the extent of a State's obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved. Moreover, the Court cannot ignore that the present case is concerned not only with family life but also with immigration and that, as a matter of well-established international law and subject to its treaty obligations, a state has the right to control the entry of non nationals into its territory.'"

Hirst LJ went on to say at page 119, a little later:

"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."

He goes on and says a little later:

"I therefore uphold Mr Pannick's 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."

The way Miss Sheehan put her case was that the policy as a whole was at variance with the United Kingdom's obligations under the Convention. She did not develop that argument with any further references to the case law, save this: she drew our attention to a case decided on 27th April 1998 called R.v. Home Secretary ex parte Ahmed and Patel. That was a case in which leave had been given to move for judicial review and the substantive case was argued in front of Sullivan J. It was a case where Mr Kadri, arguing for the appellants, who in some ways were in rather a similar situation to the present, albeit as I say there was also a child involved. Mr Kadri pointed out that the United Kingdom was a signatory of 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. He went on to say, whilst recognising that such Conventions were not part of our domestic law, he submitted that their ratification by the United Kingdom gave rise to a legitimate expectation that the Secretary of State would seek to comply with them when exercising his discretion under the prerogative. He referred to the well-known case in Australia Minister for Immigration and Ethnic Affairs v Teoh 128 ALR 353.

Sullivan J, in dealing with that situation, referred to the House of Lords' case in this country, R.v. Home Secretary ex parte Brind [1991] 1 AC 696 which is, as is well-known, a case in which the standing of the European Convention on Human Rights was considered by their Lordships' house. Mr Kadri submitted in front of Sullivan J that DP/3/96 was not compatible with Article 8 of the European Convention because it did not show a proper respect for family life. He elaborated that submission. Mr Pannick, who appeared for the Home Secretary, drew the judge's attention to Gangadeen and Khan, to which I have already made reference, and submitted that ratification of the European Convention gave rise to no legitimate expectation that the Secretary of State would follow its provisions in the exercise of his discretionary powers, and that Article 8 merely required 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. Crucially for the present submission, Mr Pannick submitted to Sullivan J that the principles to be found in the speeches of Lord Bridge and Lord Ackner in Brind applied to the exercise of a discretion under the prerogative, just as they do to the exercise of a statutory discretion.

All of those submissions by Mr Pannick were accepted by Sullivan J, and he rejected the applicant's case. But he did, however, give leave to appeal so that this court might consider whether indeed the exercise of a discretion under the prerogative was to be regarded in the same light as the exercise of a discretion under statute. That point still remains to be argued.

Miss Sheehan opened her submissions by saying that since that point remained to be argued, the present case should be adjourned until the Court of Appeal, and if need be the House of Lords, in that case had decided that point. Then we can see whether any or all of DP/3/96 and by implication quite possibly DP/2/93 was invalid and meanwhile the applicant ought to be allowed to remain here with his wife.

As it seems to me, the difficulty with that submission is that that point only becomes of interest if the facts of the present case are such that it can be arguably shown (because we are only dealing with a leave application) that in the circumstances of the present case the applicant's position is one with which it was unreasonable to interfere if one was having due regard to Article 8 of the European Convention on Human Rights. In the present case there has been no discussion and no argument as to whether or no the Home Secretary has taken Article 8 into account. He manifestly has.

The question therefore is has he misconstrued it or misapplied it, or is there an arguable case to that effect? As it seems to me, it follows from the decision in Gangadeen that the policy in general is one which is compatible with Article 8. So far as this applicant in particular is concerned I am unable to discover and -- with one exception to which I am about to come Miss Sheehan has not indicated to us any reason why -- the Secretary of State was acting in any way which can be regarded as unreasonable or misapplying that policy. The exception to which I refer is that she says, and so far as I can see says correctly, that the Secretary of State did not in his various letters which he has written in the present case directly address the question whether or no the applicant's marriage is genuine. She submits, again so far as I can see correctly, that there was no reason to suppose that it was not a genuine marriage. On the other hand, she has to admit that the Secretary of State nowhere indicated that he thought it was not a genuine marriage. She submits that the Secretary of State in each case has, in order to comply with Article 8, to consider the genuineness of the marriage and make a specific finding upon it.

While clearly the genuineness or otherwise of the marriage is a relevant factor to take into consideration, it does not seem to me that it is arguable that the Secretary of State has in each case to make an express finding that a marriage is genuine. Marriages are presumed to be genuine unless something indicates the contrary. Here there is no indication to the contrary and, in my judgment, it is not to be assumed that the Secretary of State thought that this marriage was other than a perfectly genuine marriage.

The point which was reserved for possible consideration by this court in Ahmed and Patel, namely whether one could rely on a legitimate expectation that the Secretary of State would take the ECHR into account, does not seem to me to arise in this case, because the Secretary of State has taken Article 8 into account. Insofar as one is concerned with what was actually the main point in Ahmed and Patel, namely the relevance of the Convention for the Protection of the Child, that point also does not arise in the present case. So on that aspect of Miss Sheehan's submissions, I would refuse to grant leave.

Rather separate from it, and conceptually distinct from it, are her submissions in relation to the detention of the applicant. The factual position I have already indicated. The powers under which he was detained are set out in the Immigration Act 1971 in the second Schedule. Paragraph 9 of that Schedule provides:

"Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as, in the case within paragraph 8 above, are authorised by paragraph 8(1)."

Those directions include removal directions.

Paragraph 16(2) of the Schedule says this:

"A person in respect of whom directions may be given under any of paragraphs 8 to 14 above may be detained under the authority of an immigration officer pending the giving of directions and pending his removal in pursuance of directions given."

So, on the face of it, there is authority for the detention of the applicant. Paragraph 17(1) says:

"A person liable to be detained under paragraph 16 above may be arrested without warrant by a constable or by an immigration officer."

Paragraph 18(4) provides:

"A person shall be deemed to be in legal custody at any time when he is detained under paragraph 16 ..."

That regime is mollified in two possible respects. One is contained in Paragraph 21 of the Schedule which reads: "(1) A person liable to detention or detained under Paragraph 16 above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or released from detention: but this shall not prejudice a later exercise of the power to detain him."

I interpose to say that it was under this power that the applicant was at large for about three or four years. The final quotation from the second Schedule is paragraph 22(1) which says:  "(b) a person detained under paragraph 16(2) above pending the giving of directions, may be released on bail in accordance with this paragraph.

"(1A) An immigration officer not below the rank of chief immigration officer or an adjudicator may release a person so detained on his entering into a recognizance conditioned for his appearance before an immigration officer at a time and place named in the recognizance ..."

So that is the statutory background under which the applicant was detained. All went well, so far as his liberty was concerned, until 11th May when, as I indicated, he was detained at the police station. There is in relation to detention of applicants a Home Office policy which, summarised in a sentence, says that people are not to be detained unless there is a good reason for their detention. Quoting from the introduction there is said this:

"Criteria for detention are set out in Section B of this instruction. Broadly, however, the overriding consideration is whether the person is likely to comply voluntarily with any restrictions imposed upon him, including any arrangements for removal. In making this assessment account should always be taken of the person's immigration history and circumstances. For example, an illegal entrant who lives at a settled address, has steady employment and a subsisting relationship may reasonably generate a greater expectation of compliance than a single unemployed person with no fixed abode. Other factors to be taken into account in assessing the need to detain will include any compassionate circumstances ... the likely length of detention and the expectation of removal within a reasonable period."

There are set out in Paragraph 6 various criteria which are to be looked at jointly. They are just the sort of thing that one would expect to see; dealing with any evidence that the man or woman may be likely to abscond; or what the individual's expectations are about the outcome of the case when there are outstanding applications being dealt with.

The complaint in relation to his detention does not, as I understand it, relate to his initial detention on 11th May. We have no clear evidence in relation to that because it is not a matter which is challenged in the form 86A which gave rise to these proceedings. But I think the flavour of the situation may fairly be taken from paragraph 8 in that form, which reads:

"On 11th May 1998 when signing on at the police station in compliance with the restriction imposed upon him, the applicant was arrested and detained under the instructions of the [Immigration and Nationality Department.] The applicant understood that he was to be removed within the week."

It will be recollected from the history which I set out at the beginning of this judgment, that when he entered the United Kingdom he put in an asylum claim. That was live for a number of years until it was finally dismissed in December 1997. So far as his marriage application is concerned, that also had been dismissed in the intermediate time. So the applicant was in this situation, whereby gradually his prospects of success were diminishing for one reason or another. It is said, in relation to the letter of 16th May 1998 which I have read, that the gentleman who signed it, an immigration officer, did not set out his or other people's reasons for the decision to maintain the detention of the applicant. It is said, and said quite rightly so far as I can see, that the Home Office's policy in principle is that persons should be told why they are being detained and they should be given reasons. Further, it is said by Miss Sheehan, that the question of Ahmed and Patel was not properly addressed in that case or, indeed, addressed at all. That, again, is right. Though that of course deals with not so much a matter of fact as a matter of law and of policy.

To those submissions in relation to detention Mr MaClean, who appears for the Home Secretary, makes first of all the point that, assuming that the applicant fails on his challenge to the substantive decision in relation to Article 8 of the Convention on Human Rights, the point is rather academic because the plane is due to leave tomorrow morning.

The second point is this. That as from 11th May it was possible to apply for bail. No application for bail has been made, with the possible exception of one made (I gather out of hours) to an adjudicator which he refused. There appears, from what we understand from counsel, to have been some confusion there, in the sense that it was made in reliance on the wrong paragraph of the second Schedule, and the adjudicating officer, directing himself to that paragraph said it was not in point. But he failed to direct himself to the relevant paragraph. As I say, the matter is not gone into in the evidence because there has been no challenge by way of judicial review, or application for it, in relation to that adjudicator's decision. Nor do we have detailed evidence as to what happened before him. But what is quite clear is that there has been no attempt either to ask him to think again, or to appeal his decision, or to go by way of judicial review of his decision. It is of course possible to apply for leave to move for judicial review in cases of urgency where other channels have been exhausted. If the court finds that there is an arguable case that a man has been unlawfully detained, then the court either can grant bail itself or alternatively quickly arrange for the matter to be reconsidered. But none of that was done in the present case. That is why we find ourselves where we are today. Looking at the situation as at today, it does not seem to me that it would be right to progress that matter any further, even if an application were made in relation to it.

So far as 16th May letter is concerned, which is the one that is directly challenged, all that is said in it is that:

"Your client's detention will continue to be reviewed regularly."

It must not be forgotten that that letter was written in reply to the letter of 14th May, setting out the applicant's case. That was largely concerned with the legality of the policy which is being pursued and the point on the case of Ahmed and Patel. That letter concludes as follows, and it is this conclusion which contains the only reference to detention. It is at page 20:

"I would conclude by stressing that in order to conserve tax payers money, by way of legal aid, which Mr Ibehi shall be entitled in due course were you to be against him, it is in public interest to resolve this matter by way of differing any decision in relation to my submissions, so as to await the decision of the House of Lords in Gangadeen and most importantly to await the decision of the Court of Appeal in Ahmed and Patel's case.

That would be the most sensible way forward, and since this may take several months to resolve, it would be most appropriate to review Mr Ibehi's detention, and accordingly grant him temporary admission with previous restrictions such as reporting to the police restored, as he has always surrendered himself to custody when required."

If at times it seems there are some words missing, I can only say I am reading the text in front of me.

To that letter the reply given on 16th May seems to me to be an adequate reply. It is not one which itself can be struck down and, in any event, it does not seem to me that it is arguable that relief should now be given by way of striking down that decision, which will only send the matter back to the Secretary of State to consider what he is to do before tomorrow morning. In those circumstances I would refuse leave.

LORD JUSTICE HENRY:

I agree.

LORD JUSTICE EVANS:

I also agree. There has been no direct challenge in these proceedings to the detention of the applicant on 11th May of this year. On that day he reported at the police station, as he had been doing monthly for a number of years. It was some 5-6 months after his asylum application was finally refused. He was told abruptly that he was being detained so that he could be removed from the country within a matter of days. We have not heard argument directly related to this issue, no doubt because it was soon overtaken by subsequent events. It seems to me (I should stress we have not heard full argument) that it is highly questionable whether that decision, that is to say the decision to detain the applicant on that occasion following the grant of temporary admission, was properly taken unless it took account of the criteria laid down as showing when detention is desirable. We have no evidence one way or another. If a person is settled in this country and married, then it could be at least arguable that such an abrupt exercise of the power to detain was unjustified, and there might even be grounds for suggesting that there was a separate breach of Article 8 of the European Convention.

I would note, however, that the practical importance of this point may invariably be reduced by the fact that there is express provision for release on bail in paragraph 22(1), already quoted by my Lord.

ORDER:

Application dismissed; Legal aid taxation of the applicant's costs.

(Order not part of approved judgment)