Hlomodor v. Secretary of State for the Home Department

HLOMODOR v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1993] Imm AR 534

Hearing Date: 18 May 1993

18 May 1993

Index Terms:

Deportation -- overstayer -- married -- child of the union -- whether decision by Secretary of State to deport applicant a reasonable exercise of discretion -- whether due attention paid to European Convention on Human Rights -- Berrehab distinguished. Immigration Act 1971 (as amended) para 3(5)(a): HC 251 paras 162-166: European Convention on Human Rights art 8.

Held:

The applicant for leave to move for judicial review was a citizen of Ghana: he was an overstayer whom the Secretary of State had decided to deport: his initial application for leave to move for judicial review had been dismissed by Popplewell J. It was not disputed that the Secretary of State had had the power in law to take the decision he took. It was contended that the Secretary of State had exercised his discretion unreasonably. The applicant had a complicated matrimonial history, which is fully set out in the judgment of Kennedy LJ. He was married, and there was a child of the union. The Secretary of State had not, at one time, been persuaded that the applicant was the father of the child. Counsel contended that the applicant had not been given the opportunity to prove paternity. Furthermore, the Secretary of State had not given sufficient weight to the quality of the relationship between the applicant and his wife and the children: he relied on Berrehab. Held 1. The court did not indicate what weight it would have attached to Berrehab if it had found that case relevant. Both representatives acknowledged that the European Convention on Human Rights was a factor to be taken into account in the exercise of discretion by the Secretary of State. The court distinguished the case on the facts. 2. In the instant case the Secretary of State had concluded there was no link at the material time between the applicant and his wife and the children. 3. The Secretary of State's decision was not Wednesbury unreasonable.

Cases referred to in the Judgment:

Berrehab v The Netherlands (1989) 11 EHCR 322. R v Secretary of State for the Home Department ex parte Richard Hlomodor (unreported, QBD, 14 May 1993).

Counsel:

M Supperstone QC and D O'Dempsey for the applicant; R Tam for the respondent. PANEL: Stuart-Smith, McCowan, Kennedy LJJ

Judgment One:

KENNEDY LJ: This is a renewal of an application for leave to move for judicial review, leave having been refused by Popplewell J on 14 May 1993. The decision which it is sought to challenge is a decision of the Secretary of State of 5 May of this year to implement an order for deportation which was signed on 5 June of last year. The applicant is a citizen of Ghana, who was born on 5 February 1964. He arrived in the United Kingdom on 2 June 1987, and was given leave to enter as a visitor for one month. Thereafter, he remained without leave, and apparently engaged himself in the television repair business. He met a woman, named Yvonne Williamson, who was of similar age, and who already had twin sons. On 5 May 1988, he says -- and it seems to be accepted -- that he married Yvonne Williamson. On 6 June 1989, Edward Lamp & Co, on his behalf, applied for leave for him to remain on the basis of his marriage to a British citizen. The Secretary of State refused that application on 19 June 1990, and gave notice of his intention to deport under section 3(5)(a) of the Immigration Act 1971. The applicant gave notice of appeal against that decision, and the matter then came before an adjudicator. On the first occasion the applicant did not attend, nor did he attend on an adjourned date, and the appeal was then dismissed. In reality, the Secretary of State clearly did have that which was challenged, namely power to make the order. In August 1990, the immigration service received information suggesting that the applicant was living with a woman named Caroline Mills, a Ghanaian student, and immigration officers found him at her address on one occasion. Enquiries which they made at that time tended to confirm the allegation. For instance, he appeared on the electoral roll in respect of that address; what appeared to be his property was there; and, in due course, he was there eligible for the local tax. On 22 October 1990, his present solicitors made representations to a Member of Parliament, in which it was accepted, understandably, that he was in breach of the immigration rules, but it was sought that, nevertheless, he should have leave to remain. In January and March of 1991, immigration officers visited Yvonne Williamson. She asserted that she was living with the applicant, but there was no evidence of it. On 20 April 1991, Yvonne Williamson gave birth to a child named Shemira. That child was initially registered by Yvonne Williamson with the name of the mother being given, but the name of the father -- if it was given at all -- was certainly not the name of this applicant. That was a matter which, on subsequent occasions, the applicant and Yvonne Williamson were invited to explain. What happened was that afterwards, beginning in about September 1991, the applicant and Yvonne Williamson took steps to have the child re-registered, showing both of them as parents, and, in due course, that came about. Moving now to 1992, between February and May, Yvonne Williamson was serving a sentence of six months imprisonment imposed for offences of fraud. She says, and there seems to be no reason to doubt it, that during that period the young child born the previous April stayed with a friend, and her two older children were placed in local authority care. On 5 June 1992, there was signed a deportation order, to which I have already referred. As soon as that was signed, a letter was written by the Under Secretary of State to a Member of Parliament who had been making representations on behalf of this applicant, explaining what was the attitude of the Secretary of State. Essentially, it was pointed out that visits had been made along the lines I have indicated, that the Secretary of State was not satisfied of the relationship existing, in particular with Yvonne Williamson, but as far as the child was concerned, no birth certificate had been produced and, accordingly, there was no viable claim under the immigration rules or without them. To that the solicitors acting for the applicant responded on 26 June by saying that they had seen both the applicant and Yvonne Williamson, and the child, and that, although there was the problem of the birth certificate, it was being rectified. In July 1992, a further letter from the solicitors acting on behalf of the applicant indicated that the calls made by the immigration service on Yvonne Williamson had been on occasions when the applicant had been at work, and that certainly he had been living with her. It was also alleged that the Secretary of State would not comply with his obligations under article 8 of the European Convention on Human Rights -- a matter to which I shall return. On 11 August 1992, the registration authority agreed to re-register the child, Shemira, to record her as a child of this marriage. That, as I have indicated, was then done. On 1 October 1992, the Minister of State wrote to the Member of Parliament and on that occasion he again set out the visits which had been made in 1991 -- to try and explore whether or not there was a subsisting relationship -- both to Yvonne Williamson and to the home of Caroline Mills. In that letter, the Minister of State pointed out that there was a claim -- and I use the word advisedly -- that the child was the child of the applicant, but also pointed out that no birth certificate had been produced. That letter is relied upon before us by Mr Supperstone because it contains an indication that the Secretary of State regarded as relevant the contents of the European Convention. For the purposes of the hearing before us it is accepted by Mr Tam, on behalf of the Secretary of State, that article 8 of the European Convention should be regarded as a relevant factor. On 20 October 1992 the immigration service wrote to the solicitors, who were acting on behalf of the applicant. That letter is of some significance because in it, the immigration service write thus: "Although Mr Hlomodor's daughter was born in the United Kingdom, the Secretary of State is not satisfied that his marriage to a British citizen is subsisting and therefore does not accept that his removal from the United Kingdom would contravene articles contained in the European Convention on Human Rights." As Mr Supperstone rightly pointed out, it there seems to be accepted, without qualification, that the child, Shemira, was the daughter of the applicant. Following that, there were some further representations made by the Member of Parliament, and on 29 November 1992, immigration officers again visited Yvonne Williamson. On this occasion she was not there, but they were able to speak to one of her twin sons, and that young boy, then aged about ten, said that the applicant did not live there. Subsequently, Yvonne Williamson rang the immigration service to say that the child had been advised to say something of that nature, because of the difficulties which the applicant was experiencing in relation to the problem of immigration. The immigration officers also visited what had been the premises at which Caroline Mills had been living, and on that door they found a note to say that the property had been repossessed and the present incumbents were not to be answerable to any liability of Caroline Mills or the applicant. On 5 April 1993, the applicant and Yvonne Williamson were interviewed separately, and then together, by the immigration service at Gatwick. There were, it is said -- and it is clear from the record -- discrepancies between the answers given by each of them. One discrepancy in particular, is perhaps worth noting because it relates to his knowledge of Yvonne Williamson's criminal convictions. He said this: The immigration officer asked: "Does Yvonne have any criminal convictions?", to which he answered: "Not that I know of." In fact, as I have already indicated, she had relatively recently served a sentence of six months' imprisonment for fraud, and that at the time when, according to the applicant, and indeed according to her, they were living together as a family unit. I do not need to deal with any of the other discrepancies. He subsequently sought to explain that particular discrepancy by saying that it was a matter of embarrassment to him that she had had that difficulty. On 5 May 1993, he was arrested and taken to South Norwood Police Station. Of course, it is that arrest which led immediately to the proceedings before Popplewell J and in this court. The solicitors, who are still representing him, wrote to protest, and in response to that letter, the immigration service set out at some length what it asserted to be the present position, in the letter which is at page 110 in our bundle. It said in that letter: "It was not possible for the Secretary of State to be satisfied that there was a subsisting relationship between Mr Hlomodor and Yvonne (Williamson) Hlomodor or that he was the father of her child." Mr Supperstone says, with some force, that that is the first occasion upon which it has been directly put in issue by the respondent, whether or not the applicant was indeed the father of the child, although, as I have indicated in the history which I have attempted to outline, that had certainly been a matter for consideration from time to time. The letter also deals with the conclusion of the Secretary of State, and it expresses it in this way: "In all the circumstances, and after exhaustive enquiries the Secretary of State has concluded that enforcement of the deportation order which was made against Mr Hlomodor in June 1992 would not breach article 8 of the European Convention by interfering with his right to family life in the United Kingdom because he cannot be satisfied that there is subsisting family life between Mr Hlomodor and Mrs (Yvonne Williamson) and her children." There, of course, are specifically mentioned not only the girl, but also the twin boys. The letter, which I have just quoted, was followed by another letter from the immigration service which was substantially to the same effect, and by a second letter, of 13 May 1993, in which it was asserted that: "In all the circumstances the public interest in favour of deportation would outweigh that relationship as a compassionate circumstance." Mr Hlomodor then swore an affidavit, in which he claimed that Caroline Mills was simply a friend from Ghana, with whom he had invested in property, but the properties happened to be registered in such a way as to cause his name to appear on the electoral roll, and he sought to explain the problems which had been encountered over the registration of the birth of the child, Shemira. He also gave his explanation of his apparent lack of knowledge of his wife's conviction, at the time when he was interviewed at Gatwick. So much then for the historical background to this application. It is worth considering the general position in law which faced the Secretary of State, when signing the order for deportation in June 1992. The situation was that the applicant was an overstayer whose right to remain ended in July 1987. His application to remain on the grounds of his marriage had been turned down in January 1990. He was plainly liable to be deported, pursuant to section 3(5)(a) of the 1971 Act. The power to make a deportation order rested with the Secretary of State. It is clear from the rules that when exercising that power, the Secretary of State in each case will balance the public interest against compassionate circumstances, but deportation will normally be the proper course when an applicant has remained without authorisation, after taking into account such matters as his age, the length of his stay in the United Kingdom, the strength of his connections, his personal history, any compassionate circumstances which may be brought to the attention of the Secretary of State, and any other representations which may be made on the applicant's behalf. It is against that background that, as it seems to me, it is necessary to consider the submissions put forward by Mr Supperstone on behalf of this applicant. What is here alleged is that the Secretary of State was at fault, in failing to give the applicant an opportunity to make representations as to whether he was the father of the child, and whether the relationship was of the requisite quality -- even if father and mother were, at the material time, separated from each other -- as to make it appropriate for the applicant to remain in this country, having regard to the provision of article 8 of the European Convention. It is said that the Secretary of State failed to take into account the quality of the relationship as he should have found it to be. In the alternative, it is submitted that there is here a genuine humanitarian case, under article 8, although, as it seems to me, that adds nothing to the principal submission put forward on behalf of this applicant. As far as paternity is concerned, Mr Tam, on behalf of the Secretary of State, realistically faces the position. The fact is, as he puts it, although there were suspicions as to paternity raised at an early stage, they appear, on the face of it, to have been allayed by the production of the revised birth certificate, and they only resurfaced at the end of the enquiry. The matter has to be considered on the basis that this applicant may well have been the father of Shemira and it should proceed upon that basis. Having regard to the concession made in relation to the applicability of article 8, for the purposes of this case, it then becomes necessary to consider how the Secretary of State ought to have addressed the qualitative relationship, which is relied upon as a reason for this applicant remaining in the United Kingdom. Mr Supperstone realistically accepts that the Secretary of State was entitled to come to the conclusion that the applicant was not, in fact, continuing his relationship with Yvonne Williamson in the way that she asserted, but, of course, his whole case was that they were, throughout the relevant period, living together as one family; he and his wife, her two children and the one child of both of them. Investigations made by the Secretary of State, the nature of which I have attempted to outline, showed that case to be wholly without foundation to the satisfaction of the Secretary of State. With that case, as it seems to me, must inevitably have gone the case which is now sought to be relied upon, namely that although the principal case was shown to be defective, there, nevertheless, was underlying it a genuine half-way house, a qualitative relationship between father and daughter, existing, for example -- I suppose it is to be envisaged -- on the basis that the father was having contact with the daughter, very much less than that which he relied upon, but nevertheless genuine contact. In support of that approach, we were invited to consider the decision of the European Court of Human Rights in Berrehab v The Netherlands, and we have looked at that report, which is in (1989) 11 EHRR 322, but the circumstances of that case point to the distinction between that type of case and the one with which we are concerned. There, the husband whom it was proposed to deport was divorced from his Dutch wife, but was, nevertheless, seeing the child regularly, and it was upon that regular contact that the decision was founded. He saw his daughter four times a week, for several hours at a time. The investigations made by the Secretary of State in the present case suggest that there was, at the material time, no link at all between this applicant, and Yvonne Williamson and her children. The Secretary of State was, as it seems to me, entitled to come to the conclusion that there was no such link, and if there was no such link, even if Shemira was his daughter, I can see no way in which judicial review proceedings would succeed. Accordingly, I would dismiss this renewed application.

Judgment Two:

STUART-SMITH LJ: I agree.

Judgment Three:

MCCOWAN LJ: I also agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Jane Coker & Partners, London N15; Treasury Solicitor

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