Ahmed v. Secretary of State for the Home Department

AHMED v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1992] Imm AR 538

Hearing Date: 26 June 1992

26 June 1992

Index Terms:

Illegal entrant -- went to ground -- subsequent marriage -- application for leave, to regularise position -- refusal by Secretary of State -- decision to remove applicant from United Kingdom -- whether Secretary of State's decision unreasonable -- whether Secretary of State erred in law in not taking account of all the factors set out in the immigration rules in relation to deportation. Immigration Act 1971 sch 2 paras 8, 9: HC 251 paras 162-166.

Judicial review -- refusal of application in Queen's Bench -- Secretary of State subsequently reviewed case and clarified reasons for decision -- application then manifestly of no merit -- whether application should have been renewed before the Court of Appeal.

Held:

Renewed application for leave to move for judicial review, following dismissal by Brooke J. The applicant was a citizen of Bangladesh who had gone to ground after being granted temporary admission. Four years later, after he had married a woman settled in the United Kingdom, solicitors approached the Home Office, seeking to have the applicant's position regularised. The Secretary of State refused the application and proposed to remove the applicant from the United Kingdom. On application for judicial review it was argued that the Secretary of State had erred in failing to take account of the factors set out in the immigration rules, relating to deportation. His decision was also asserted to be unreasonable. After the application had been refused by Brooke J, the Secretary of State had reviewed the case and had clarified his reasons for refusing the application to regularise the appellant's position. Nevertheless a renewed application was made to the Court of Appeal. Held 1. Following Khan, the factors set out in the immigration rules were irrelevant: the decision was taken not under the rules but pursuant to the provisions of schedule 2 to the 1971 Act. 2. On the facts, the Secretary of State's decision could not be challenged on Wednesbury principles. 3. It was clear, after the Secretary of State had reviewed the case, that the application had no merit: it was wrong for the application to have been renewed before the Court of Appeal.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Taj Mohammed Khan [1985] Imm AR 104. R v Secretary of State for the Home Department ex parte Mahtab Ahmed (unreported, QBD, 18 February 1992).

Counsel:

F Slevin for the appellant; M Shaw for the respondent PANEL: Parker, Balcombe, Woolf LJJ

Judgment One:

WOOLF LJ: This is a renewed application by Mahtab Ahmed for leave to apply for judicial review. The applicant was born in Bangladesh on 29 December 1959. He arrived in the United Kingdom on 16 October 1986. He was not granted leave to enter but he was temporarily admitted. He says that he lost the form which he was given, which dealt with his temporary admission. Whether that be right or not, there is no doubt that he absconded for four years and kept his whereabouts hidden from the immigration authorities. On 21 November 1990 he married his wife. He was then about 30 years of age and his wife was 17. After his marriage he communicated with solicitors, who wrote to the Home Office on 30 November 1990, accepting that the applicant's situation was irregular and seeking to regularise the situation. Immigration officers visited the applicant's address on 3 March 1991 and were given information that indicated to them that the applicant was not living there. That information may or may not have been correct. However, eventually the applicant was seen and on 16 July 1991 a decision was made with regard to his application to regularise his position. I do not propose to refer to the whole of the letter setting out the reasons for the decision which was made, but I refer to the final two paragraphs. "It is the normal practice to remove those persons found to be in the United Kingdom unlawfully unless there are reasons, usually of an exceptional compassionate nature, not to do so in a particular case. Mr Ahmed is married to a British citizen but there were discrepancies in their accounts of their relationship. Although Ms Begum is pregnant, as they were not found to be living at their given address there must remain some doubts that this is a genuine and subsisting relationship. Moreover, Ms Begum has spent the majority of her life in Bangladesh and would suffer no undue hardship should she choose to accompany her husband there. Her parents and younger siblings have recently returned permanently to that country where her six other siblings also live and where the family own property. Accordingly arrangements will now be made for Mr Ahmed's removal to Bangladesh as an illegal entrant, his wife being offered the opportunity to accompany him at public expense if necessary." Following that decision the application for leave to apply for judicial review was made. It was dismissed by Simon Brown J on paper and subsequently, after an oral hearing, by Brooke J on 18 February 1992. Before Brooke J there were two difficulties in the way of the application for leave. First, it was made on the misconceived basis that the immigration rules, which deal with the deportation of persons who are lawfully in this country, apply to the case of the applicant. That was not the situation. If authority were required for the point, which I suggest is clear beyond a peradventure, then it is provided by a decision of this court in R v Secretary of State for the Home Department ex parte Khan [1985] Imm AR 104. In the applicant's case he was being removed in accordance with the provisions of schedule 2 of the Immigration Act 1971 and in particular paragraph 9 of that schedule which has to be read together with the provisions of paragraph 8. The other difficulty in the way of the application is that, although it was argued that the decision of the Secretary of State was Wednesbury unreasonable, in fact such a contention had no prospect of success. There is no basis upon which it could be said that the matter has not been properly considered by the Secretary of State. Two matters were relied upon in support of the contention that the decision was Wednesbury unreasonable. First it was said that the Secretary of State was being unreasonable in having doubts as to the relationship between the applicant and his wife. But the Secretary of State simply said that he had some doubts as to the genuineness of the relationship. It was argued that that could not be genuine doubt, because the Secretary of State knew that the wife was pregnant. However, the Secretary of State in his decision referred to the fact that the wife was pregnant and he clearly had it in mind. The second matter related to the reasons of the parents of the wife for returning to Bangladesh. The Secretary of State, in coming to his conclusion, did take into account that there would be no undue hardship to the wife because the parents had returned there. The officers of the Secretary of State had been told that. It may or may not have been right, but they are entitled to take it into account. So far as the factual matters are concerned, the applicant is now faced with the additional difficulty that the Secretary of State has since reconsidered the position, as indicated in his letter of 15 April 1992. The letter says this: "The purpose of the letter is to clarify the contents of our earlier letter of 16th July already placed in evidence. Whilst accepting that our initial doubts as to the genuineness of the couple's relationship may now have been disproved with the passage of time, it remains our view that the marriage should not avail him. Mr Ahmed is clearly an illegal entrant . . ." The letter goes on to deal with the circumstances of Ms Begum and refers to the fact that she has since sworn an affidavit on 3 August 1991. It says: "The contents of that affidavit are noted", and continues: ". . . I would point out that we have not been provided with evidence of her parents' return to the United Kingdom. It is therefore considered that Ms Begum would not suffer undue hardship by accompanying her husband abroad, if necessary at public expense. I would add that once abroad it will be open to Mr Ahmed to apply for entry clearance as a foreign spouse and that any such application would be considered under the immigration rules." In the light of the second letter, to which I have made reference, it seems to me that if there had been any merit at any stage of this application, which I very much doubt, there is certainly no merit in it now. In my view it was wrong to renew this application to this court, as it was bound to fail, involving expense to both parties and possibly the Legal Aid Fund. I would therefore dismiss this application.

Judgment Two:

BALCOMBE LJ: I agree.

Judgment Three:

PARKER LJ: I also agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Hafiz & Co, London, SW4; Treasury Solicitors

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