SECRETARY OF STATE FOR THE HOME DEPARTMENT
30 November 1995Court of Appeal: Simon Brown, Auld LJJ, Macpherson J Leave to enter-refusal-as visitor-removal directions given-subsequent application for asylum-refused-marriage to British citizen-leave refused-whether applicant an illegal entrant to whom the Home Office policy guidance on marriage applied albeit Secretary of State had not treated her as an illegal entrant-whether marriage after removal directions issued was a marriage which post-dated enforcement action under the terms of the marriage guidance policy. Renewed application for leave to move for judicial review of Secretary of State's refusal to grant leave to enter. The applicant was a citizen of Romania. She arrived in the United Kingdom with a visitor's visa: the immigration officer concluded that false representations had been made or material facts not disclosed when application had been made for the visa. He refused her leave to enter. Removal directions were given. The applicant however claimed asylum: that application in the fullness of time was refused and an appeal dismissed. Meanwhile one week after the refusal of leave to enter and the giving of removal directions, the applicant married a British citizen. She applied for leave to enter on the basis of the marriage: the application was refused, she not having a visa in that regard, Her representatives had submitted to the Home Office that the applicant should benefit from the Home Office guidance policy on marriage. The Home Office had asserted that that policy applied only to illegal entrants and those subject to deportation. Before the court counsel argued that although the Home Office had not chosen to treat the applicant as an illegal entrant, she was in fact an illegal entrant and should benefit from the policy. Furthermore the issuing of removal directions was not "enforcement action" within the meaning of the policy document, and thus the marriage had not taken place after enforcement action had been begun.
1. The giving of removal directions specifying the time, date and flight for intended removal constituted the commencement of enforcement action within the meaning of that phrase in the policy document.
2. It followed that the applicant was unable to benefit from the policy document.
3. The court left open for consideration in the future whether a person not treated as an illegal entrant could claim the benefit of the policy by asserting and demonstrating that he or she was an illegal entrant.
I Kumi for the applicant
R Tam for the respondent
Cases referred to in the judgments:R v Yabu Naillie  Imm AR 462. v Secr. R etary of State for the Home Department ex parte Comfort Henry  Imm AR 42. Abu Shahed v Secretary of State for the Home Department  Imm AR 303. R v Secretary of State for the Home Department ex parte Magdelena Jackson (unreported, QBD, 13 June 1995).
SIMON BROWN LJ:The applicant is a Romanian national married to a British citizen. By this renewed application she seeks leave to challenge a decision dated 19 January 1995 refusing her leave to enter the United Kingdom. As will shortly appear, that port refusal came nearly three and a half years after she first arrived in the United Kingdom, then a single woman. Let me at once, as briefly as may be, recite the essential history of this case, which may conveniently be done chronologically. The applicant arrived at Gatwick on 10 August 1991, seeking entry as a visitor for seven days as one of a tour group of ten Romanians. She held a "visit" entry clearance issued in Bucharest. She was granted temporary admission pending enquiries. Three days later, on 13 August, she applied for political asylum. That claim was thereafter fully investigated, taking, as such investigations do take, a considerable period of time. Three years later, on 8 August 1994, asylum was refused, and so too was the applicant refused leave to enter. The refusal document of that date is headed "Notice of refusal of leave to enter after refusal of asylum" and states:
"You hold a current visa endorsed 'single visit' but I am satisfied that either false representations were employed or material facts were not disclosed for the purpose of obtaining a visa. The visa is not therefore effective.A week later, on 15 August 1994, two events occurred. One was that the applicant appealed against the refusal of asylum. The other was that she married David Jackson. That marriage was notified to the Home Office by letter dated 17 August 1994 and on 7 September 1994 the applicant applied for settlement on the grounds of marriage. At the same time she withdrew her asylum appeal, such withdrawal becoming formalised on 27 September 1994. On 19 January 1995 both husband and wife were extensively questioned at interview with regard to the details and circumstances of their marriage. It is unnecessary to indicate anything of that, save only to note that there was obviously some thought in the investigating officer's mind that it might be an immigration marriage, ie a marriage entered into primarily to secure the applicant's right to remain here. Be that as it may, the same day, 19 January 1995, the applicant was refused leave to enter on the grounds of her marriage in these terms:
"You have asked for leave to enter the United Kingdom as the spouse of Mr. Jackson but under the Immigration Rules you are required to have an entry clearance for the purpose and you have no such entry clearance."In May 1995 the immigration authorities indicated that, as no appeal remained outstanding, removal directions would be given. On 2 June 1995 the applicant's solicitors wrote to the immigration appeal authorities seeking to reinstate the appeal against the refusal of asylum. On 5 June the judicial review application to challenge the refusal of 19 January 1995 was launched. On 7 June the immigration authorities wrote a very full letter setting out the essential history of the matter, indicating that they would not object to the reinstatement of the applicant's asylum appeal, but making plain that they relied upon the Court of Appeal decision in Secretary of State for the Home Department ex parte Abu Shafted  Imm AR 303 in answer to the applicant's principal complaint, which was that the Home Office had not followed a particular policy document in dealing with her application to remain on the grounds of her marriage to a United Kingdom citizen. On 13 June 1995 Judge J refused the application for leave. In short, he found that the application fell within the ambit of the principle established by Abu Shahed and failed accordingly. The applicant's appeal against refusal of asylum was thereafter reinstated, but, we are told today, that appeal was dismissed on 22 September, apparently on the basis that conditions in Romania have now altered. We are told that there is to be no further appeal in that regard. The applicant now rests all her hopes upon the present proceedings. Before turning to the case of Abu Shahed, the decision which has thus far defeated this application, but which Mr. Kumi now seeks to distinguish, it is convenient to indicate the essence of the policy document upon which ultimately the applicant seeks to found her case. It was an internal Home Office document issued in early 1993. The introduction says:
"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 "marriage policy" is thereafter stated 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 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;I need not read subparagraph (b). Essentially it requires that the marriage or habitation has lasted two years or more. It is, however, included as an alternative to subparagraph (c), to which I now come, and which unarguably the applicant here would satisfy if the policy were to apply:
(c)"the settled spouse has lived here from an early age or it is otherwise unreasonable to expect him/her to accompany on removal."I need read no more from that document. I come now to Abu Shahed, which I may note approved the first instance decision of Harrison J in ex parte Comfort Henry  Imm. AR 42, a decision essentially to the like effect. Both cases involved, as does the present case, asylum seekers temporarily admitted under the provisions of the second schedule who thereafter got married whilst in this country. In Comfort Henry the marriage occurred some seven months after arrival; in Abu Shahed two years after arrival; in the present case three years. It was unsuccessfully argued in both those earlier cases that the applicants should be entitled to rely on the policy guidance. In rejecting the argument, Sir Tasker Watkins, giving the leading judgment in Abu Shahed, said:
" the present case does not concern either a deportee or an illegal entrant. [Counsel] submits nevertheless that its contents should by analogy have guided the Home Secretary into deciding whether or not to grant this applicant leave to enter outside the rules.In R v Secretary of State for the Home Department ex parte Comfort Henry (19 August 1994) Harrison J, upon facts very similar to those in the present case decided that the January 1993 document was confined to applications in deportation and illegal entry cases. He refused, therefore, to apply it to a leave to enter case. He said 'It may be thought that there should be another such policy to deal with immigration cases but it seems to me on the face of it to be a document which has been formulated having regard to article 8 of the Convention to deal with deportation and illegal entry cases'. I respectfully agree with him. It would be quite wrong to apply policy statements to situations or circumstances other than those they are expressly stated to be applied to." Mr. Kumi, in an able and well-sustained argument, seeks to distinguish that decision and to bring himself squarely within the policy guidance. The applicant here, he submits, is an illegal entrant-see the terms of the refusal notice of 8 August 1994. True, she may not have been specifically treated as such, but that matter not, and if, the argument runs, she is in fact an illegal but that matters entrant, then she is entitled to the benefit of the policy. Speaking for myself, I am prepared for present purposes to assume that the applicant is indeed an illegal entrant and that the Home Secretary would have been entitled to treat her as such. The definition of illegal entrant in section 33(1) of the Immigration Act 1971 is, after all, a wide one, particularly when regard is had also to the provisions of section 26(1)(c) and the relevant case law. Mr. Kumi, for example, draws our attention to a recent decision of the House of Lords, R v Naillie  Imm AR 462, in which the following was said:
". . . a person in my opinion is not seeking to enter within the meaning of the Act when he disembarks. He seeks to enter when he presents himself to the immigration officer or when he tries to pass out of the area of immigration control without presenting himself to the immigration officer. Thus if he presents himself to the immigration officer and produces a forged passport or ties in a material way he is seeking to enter in breach of the immigration laws. If he is discovered to have forged documents he is an 'illegal entrant' within the definition set out in the Act. If he succeeds and is allowed in on the basis of forged documents he is also an 'illegal entrant'."But even assuming that the applicant is an illegal entrant, what, I have to say, seems to me conclusive of this case against her is that the policy would not in any event here have availed her. In my judgment she must inevitably have fallen foul of condition 2(a), namely that "the marriage pre-dates enforcement action". Here the marriage took place not before, but one week after, the notice of 8 August 1994 refusing leave to enter and giving removal directions. Mr. Kumi seeks to argue that the terms of the notice are such that it cannot properly be categorised as involving enforcement action within the meaning of the policy document. To my mind, however, the argument is impossible. The mere fact that the removal directions, specifying, one must note, a given time, on a given date, by a given flight, to a given destination, are couched in terms of "directions given/proposed" is nothing to the point; nor, in my judgment, is the fact that the document notifies the applicant of an entitlement to appeal to the independent appellate authorities. I recognise of course that this was not the basis upon which the Home Office refused this application for leave to enter on the basis of marriage (as it happens, the second application made for leave to enter in the particular circumstances of this case). Rather the Home Office dealt with the matter on the simple basis that the policy document has no application whatsoever to those whom the Home Office chooses to deal with as port refusal cases. I myself would leave over for consideration another day whether or not it will ever be open to someone in the applicant's position to invoke this policy document by painting themselves in blacker colours than the immigration authorities have chosen to do; in other words, by claiming to be an illegal entrant and then establishing, as this applicant cannot establish, that the conditions of the policy are satisfied. It is a curious irony under the present policy guidance that an applicant may be better off the worse their immigration history and the more plainly they have offended immigration control. The Home Office answer to that is that those subject to port refusal of leave will be better placed than those deported under the provisions of sections 3(5)(a) and (b) or those removed as illegal entrants to obtain entry clearance once abroad with a view to returning to married life here. That, they contend, is the logic of denying the benefit of this policy to those who are treated as port refusal cases. Whether that is a sufficient basis for denying the benefit of the policy to those temporarily admitted (sometimes nowadays for years) can only now, following Abu Shahed, be decided by the House of Lords. That argument, too, if it arises, must be for another day. On whatever basis one chooses to treat this applicant, for the reasons I have given, her case, alas, fails on the facts. I would dismiss this renewed application.
AULD LJ:I would reserve the question whether the applicant is, or could be treated as, an illegal entrant to whom the marriage guidance policy document applies. But, for the reasons given by my lord, I am of the view that on the facts the applicant does not satisfy the conditions in paragraph 2(a) of the policy. I would add that, even if those conditions were satisfied, the policy and that paragraph do not have effect so that enforcement action should never be taken where the conditions are satisfied. Its effect is to operate as a general rule. On the facts here, even if the policy had applied, it seems to me, given the circumstances recited at some length and with care in the Secretary of State's letter, it would have been a proper exercise of his discretion to make the decision he did, and within the bounds of that policy. For those reasons I too would dismiss the application.
MACPHERSON J:I agree. The case of Abu Shahed, which my lord cited, is perfectly clear and, together with the decision of Harrison J, binds this court. The only way in which that could have been altered would have been by the House of Lords if this application had been heard and failed. I doubt whether their lordships would have entertained the case. I do notice that in the applicant's affidavit she says:
"I pray for the Court's leniency and mercy, otherwise I as a refugee seeker and a recently married woman shall be removed from the UK and no legal action, if successful, can bring me back to stay with my husband."That is not entirely true, because of course this lady will be in the same position to apply for entry clearance as the spouse of a citizen of this country as would any other foreign wife seeking to come to this country. It may not help that she has indicated that she may regard herself as an illegal entrant, and there was some doubt in the first investigation about the marriage itself. But the fact is that she will not be debarred from making an application from abroad, which is the right place from which it should be made in cases of this kind. She married here, so that her circumstances are somewhat different, of course, but she will revert to the position of being a foreign spouse seeking to enter this country. I agree, for the reasons given by my lord, that this application is truly unarguable and this application must be dismissed.
J M Smith & Co, London, SW9; Treasury Solicitor
Disclaimer: Crown Copyright
This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.