Iye v. Secretary of State for the Home Department

IYE v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1994] Imm AR 63

Hearing Date: 27 August 1993

27 August 1993

Index Terms:

Illegal entrant -- entry by deception -- conviction for social security fraud -- recommended by court for deportation -- Secretary of State elected to remove applicant as illegal entrant -- long-term association with British citizen -- child of the relationship -- whether unreasonable for Secretary of State to remove applicant in light of guidance to immigration officers. Immigration Act 1971 s 3(6), sch 2 para 8.

Held:

Renewed application for leave to move for judicial review after refusal by Auld J. The applicant was a citizen of Nigeria who had entered the United Kingdom by deception in 1986. He came to the attention of the immigration authorities when convicted of social security fraud in 1993. The court in imposing a custodial sentence recommended he be deported. The Secretary of State however decided to remove him from the United Kingdom as an illegal entrant. Counsel argued that in the light of the guidance the Secretary of State had issued to immigration officers in relation to those liable to deportation but who had children in the United Kingdom, the decision was unreasonable. Held 1. The matter was entirely one for the exercise by the Secretary of State, of his discretion. 2. Albeit the relevant letters sent on behalf of the Secretary of State did not specifically refer to the private guidance paper, it was clear that consideration had been given to the policy it embodied. 3. It could not be said that the Secretary of State's decision was Wednesbury unreasonable. 4. Per Evans LJ, it was regrettable that the Secretary of State was unable to clarify whether he acknowledged a duty to comply with the terms of the guidance paper and whether that was designed to give effect to article 8 of the European Convention on Human Rights, and if it were, to make it abundantly clear that that guidance had been followed in this case.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Jordan Abiodun Iye (unreported, QBD, 22 July 1993).

Counsel:

D Roberts for the applicant; Miss L Giovannetti for the respondent PANEL: Glidewell, Scott, Evans LJJ

Judgment One:

GLIDEWELL LJ: This is a renewed application on behalf of Mr Jordan Abiodun Iye for judicial review of a decision of the Home Secretary (in practice the Home Office), communicated to the solicitors acting for Mr Iye in a letter dated 24 June 1993 of the Home Office's intention to remove Mr Iye to Nigeria. In theory, the decision was not to grant him consent to remain in the United Kingdom. In order to explain that, I have to go back to the history of this matter, about which there is no doubt at all. Mr Iye arrived in this country in September 1986. He made an earlier attempt to enter the United Kingdom using something approximating to his own name and was refused consent to enter. He then came back some weeks later using a totally false name. Under that false name he was given consent to enter for a short period of time only as a visitor. Having entered under a false name, he had, of course, committed an offence. He had obtained his leave to enter by deception and he was therefore an illegal entrant. Had he been apprehended at any time immediately after his entry he would have had no answer to a decision to send him back whence he came, that is to say Nigeria. However, the time here for which he was permitted to stay under the false name having elapsed, Mr Iye stayed on, and in due course (we do not know exactly when, but it is accepted some years ago) he formed a relationship with a young lady who is a British subject. They have lived together until earlier this year. She has a child, of whom Mr Iye is the father, who is now over two years old. They were living together in Nottingham, until April of this year when Mr Iye was convicted of conspiracy to obtain housing benefit from Nottingham City Council and a second offence of conspiracy. I should say that the young lady was the alleged co-conspirator. She was put on probation, but he was sentenced to a total term of two years' imprisonment. The judge recommended that he be deported from the United Kingdom. Such a recommendation, of course, is not binding on the Home Office, but having received that recommendation they were bound to consider it. They were also under an obligation, as they knew, to consider whether the circumstances that Mr Iye had the relationship with Miss Raylar and the child, who is of course a British subject, born in this country, provided compassionate circumstances which would justify the Home Office in not accepting the recommendation for deportation, and further in allowing Mr Iye to remain in the United Kingdom. I emphasise that the second part of that process would have required a positive step on the Home Office's part. He has no right to be here at the moment. If he is to remain here lawfully there would have to be a grant of consent for him to remain in the United Kingdom; at the moment there is none. In the event, the letter of 24 June, which was in reply to the letter from those acting for Mr Iye dated 1 June, which we do not have before us said: ". . . that Mr Iye was refused entry to the United Kingdom in June 1986. However, on his own admission, subsequently he gained entry in September 1986 using a passport in the false identity of George Ishola Awosonwi. Consequently he is an illegal entrant." The letter then continued: "In March 1992 Mr Iye was arrested for cheque/DSS fraud and was subsequently sentenced to 18 months' imprisonment and a recommendation was made for his deportation. However the Secretary of State has decided exceptionally, not to act on the court's recommendation in this instance. Notwithstanding this decision, it is the normal practice to remove those persons found to be in the United Kingdom unlawfully unless there are circumstances, usually of a compelling compassionate nature, not to do so in a particular case. Mr Iye has a common law wife, Ms Amanda Raylar, a British citizen, and the couple have a daughter. However Ms Raylar has moved from Nottingham, where she and Mr Iye lived, back to Warrington to stay with her parents and she is currently dependent on public funds. Given Mr Iye's poor immigration and criminal record, it is not considered that this relationship should avail him. Arrangement will now be made for Mr Iye's removal to Nigeria, Ms Raylar and their child being given the opportunity to accompany him at public expense if necessary." (I understand that the reference in that letter to his sentence being one of 18 months' imprisonment is in fact incorrect, and that it was a two year sentence.) A point arose during the course of argument as to the effect of Miss Raylar having moved back to Warrington. I should say that what we are concerned with was what was known to the officers of the Home Office, communicated in the letter of 24 June 1993. We have an unsworn affidavit from Miss Raylar, which because it is unsworn and has not been filed, we ought not to consider; even if we did, it does not go very far save to say that she loves Mr Iye and she has lived with him for the past several years. It does not say anything about why she went back to Warrington. The solicitor's affidavit in support of this application says that she went back to Warrington because Mr Iye was in jail and her parents live in Warrington; that may well of course be correct. The Secretary of State had two courses open to him to consider, as I have already made clear: 1. Did he accept the judge's recommendation for deportation? He decided not to. 2. Should he nevertheless require Mr Iye to leave the United Kingdom because he was an illegal entrant? The decision was one purely of discretion for the Secretary of State or his officers acting on his behalf; but because, no doubt, officers exercising discretion of this kind need guidance, there has, during the course of this year, come into existence an internal document number DP/2/93, in which the Secretary of State gives his officers guidance, perfectly properly, of course. The particular matter which has necessitated such guidance is that article 8 of the European Convention on Human Rights requires that courts should have respect for family life, which means that courts which are deciding on cases such as this must take into account the fact, if it be a fact, that a person is married and has family ties in this country or has a stable non-married relationship with family ties in this country. The document refers to decisions of the European Court which it says: ". . . have demonstrated that, however unmeritorious the applicant's immigration history, the court (meaning the European Court of Human Rights) 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 . . ." A later note given this guidance: "The subject's immigration history is of little relevance once it has been concluded that the marriage is genuine and subsisting . . ." There is then a paragraph which deals with criminal convictions. It reads: "The test in cases where someone liable to immigration control has family ties here which would normally benefit him/her under paragraphs 1-6 above yet has criminal convictions is whether removal can be justified as 'necessary in the interests of a democratic society'." That phrase comes from the European Convention of Human Rights, article 8. The paragraph continues: "This is usually interpreted by the European Court as serious crime punished with imprisonment (For example crimes of violence, drug offences (other than possession), murder, terrorism) but minor offences even where the individual has a long criminal record or a poor immigration history do not carry much weight. What is reasonable in any particular case will depend not only on the nature of the offence but also on the settled spouse's strength of ties with the United Kingdom . . ." That document is not in any sense a public document, but its existence became known and it was used, apparently, in some earlier case in this court or in the High Court and thus reference has been made to it in the present case without any objection on the part of the Home Office. The effect of the guidance as I see it is this: having embarked upon the exercise of deciding whether to exercise his discretion because of compassionate grounds, the Home Secretary's officers are required by him to act within the general terms of the guidance he gives. If it became clear a particular officer had disregarded the guidance, that would be a valid reason for saying the decision was wrongly made. But if it appears that the guidance has been followed, the question then arises whether it can be said that following the guidance no sensible Home Secretary or officer on his behalf could properly ever arrive at the decision which has been made. Mr Roberts, who has put Mr Iye's case with clarity and great fairness and made every point that could be made on his behalf, accepts that is the test which he has to accept. He invites us first to the view that the letter of 24 June does not show that the author of the letter paid any attention to the guidance note. There is an easy explanation to that, because at that stage it was not a document to which reference was publicly made. The author was not obliged to refer to it. It is quite clear in my view that although the letter is expressed in different terms, the substance is what he was required to consider by the guidance note. Do the compassionate circumstances in this case outweigh the valid reasons for not allowing this man to remain in the United Kingdom? So one comes to the question: can it be said that the decision in this case is one which no sensible Home Secretary or his officer could come to in all the circumstances? The guidance says that the poor immigration history is of little relevance once it has been concluded that the marriage or non-marriage is genuine. It does not say it is of no relevance, but it is of some. So that is a factor to put in this scale. Added to that is the offence. The real question, as I see it here, is: was the Home Office entitled to decide that this offence was so serious, taking everything into account, that that outweighed the compassionate circumstances which otherwise would have justified, in deciding that Mr Iye could remain? It is true that it is not an offence of violence. On the other hand, it must have been regarded by the court as a serious offence of its kind, otherwise the court would not have imposed a term of two years' imprisonment. The case is made clear by the recommendation of the judge for deportation. Although the Home Office are not following the deportation route, they clearly are entitled to take the recommendation into account as an indication of the seriousness of the offence. I, for my part, am of the clear view that it cannot properly be said that the Home Office could not arrive at this decision sensibly and rationally. In that I agree with the decision of Auld J who refused leave on the original application to him on 22 July. I would therefore dismiss this renewed application.

Judgment Two:

SCOTT LJ: I agree.

Judgment Three:

EVANS LJ: I also agree. Despite the considerable assistance which we have had from Miss Giovannetti, counsel for the respondent, I must confess that I, at least, am left somewhat unclear as to the answer to three basic questions. The first is whether the Secretary of State acknowledges any duty or obligation on his part to comply with the instructions described as "The Home Office Enforcement Policy Group Instruction" dated January 1993, reference DP/2/93, or not. Secondly, is that instruction intended or not to give effect to article 8 of the European Convention on Human Rights as interpreted by the European Court? Thirdly, if the answer to those questions is yes, then why does the decision letter (in this case of 24 June 1993) not make it abundantly clear that that was the route which was followed to the making of this decision? I am bound to say for my part at least that I find it unsatisfactory that in a case of this sort, involving the removal of the applicant from this country after many years here, the respondents are unable to make clear what the position of the Secretary of State on these three matters is. However, on the crucial question which arises today, that is to say whether it is arguable that the Secretary of State was not entitled to reach the conclusion that the crimes committed by the applicant were sufficiently serious to justify the Secretary of State's decision, this being a case where the learned judge recommended deportation, I reluctantly agree with the conclusion reached by my lords.

DISPOSITION:

Application refused

SOLICITORS:

Singh & Choudry, London, E8; Treasury Solicitor