Adebiyi v. Secretary of State for the Home Department

ADEBIYI
(Applicant)
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Respondent)

6 August 1996 Court of Appeal: Hobhouse, Millett, Swinton Thomas LJJ Illegal entrant-served with notice-subsequent marriage-visit to Ireland return to United Kingdom-application for leave to remain on basis of marriage-whether visit to Ireland and return caused previous enforcement proceedings to lapse-whether applicant could rely on policy document DP/2/93. Renewed application for leave to move for judicial review after refusal by Ognall J. The applicant was a citizen of Nigeria. He secured leave to enter the United Kingdom by deception. Notice was served on him that he was an illegal entrant. He married. He went on a short visit to Ireland. On his return to the United Kingdom, he sought leave to remain on the basis of marriage. The Secretary of State refused the application observing that the marriage post-dated the inception of enforcement action against the applicant as an illegal entrant. The applicant's circumstances put him outwith the provisions of the ministerial policy DP/2/93. Before the court it was argued that the departure of the applicant to Ireland and his subsequent return had altered his position. He had re-entered the United Kingdom: he would therefore have to receive new directions for removal and in that regard his marriage did not post-date enforcement action. The applicant therefore could seek the benefit of DP/2/93.

Held:

1. The applicant on his return from Ireland was still an illegal entrant. The short visit to Ireland did not alter that status.

2. In general terms the marriage on which the applicant sought to rely did not pre-date enforcement action.

3. The applicant was seeking a discretionary leave to remain under the terms of a policy document. The application had to be considered on its merits and the Secretary of State's approach and conclusions were not unreasonable.

A Nicol QC and C Um0ezuruke for the applicant P Saini for the respondent

Case referred to in the judgments:

R v, Secretary of State for the Home Department ex parre Adebi-vi (unreported, QBD. 2 August 1996).

HOBHOUSE LJ:

This is a renewed application for leave to move for judicial review after refusal by Ognall J sitting in the Divisional Court on 2 August 1996. It is an immigration matter and it is accepted that the applicant is an illegal entrant, but he says that he should be allowed to remain under the application of the policy statement DP/2/93. There is a more recent policy statement which deals also with marriage and children, but that does not apply to this applicant.*[1] A forensic point has been made that the new policy statement is in different terms and, it could be said, is more clearly expressed. Certainly it is differently expressed and introduces different criteria to the statement of 1993. That argument does not carry any weight. It does not disclose that there is any necessary gap, in the 1993 document and, in any event, it is on the 1993 document (and the correct understanding of it) that this matter has to be considered and decided. The 1993 document is headed "Marriage and Children" It has an introductory paragraph:

"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 in 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."

In relation to marriage it says:

"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 predates enforcement action…."

There then follow three lettered paragraphs of which the second is the relevant other half of the criterion:

"(c)the settled spouse has lived here from an early age or it is otherwise unreasonable to expect him/her to accompany on removal."

The applicant is a Nigerian citizen. He was born there in June 1951. Some 40 years later, just as he was approaching his fortieth birthday, he arrived in the United Kingdom. That was in May 1991. He misled the immigration officer. He deceived him as to the reason why he was entering and, accordingly, his entry was illegal. That was not discovered until some time afterwards and, in September 1994, after the applicant admitted that he had obtained leave to enter by deception, he was served with a notice of illegal entry. However, he then started to take proceedings, apparently in order to claim a right of asylum. In the interval, in February 1995, he married a British citizen, one Sharon Nichola Hunt, who had lived in this country from birth and therefore was a person who came within the second half of the criteria to which I have earlier referred. That marriage, however, took place at a date after the applicant had already been stated to be an illegal entrant and a notice had been served upon him. It then seems that the applicant devised a scheme whereby he might improve his position. In any event, whether it was done with forethought in that way, it is his submission now that it did improve his position. On 13 October 1995 he bought a return ticket to Ireland. That was for a flight to Dublin. The flight out was on 21 October and the return flight was on 23 October. He did indeed travel to Ireland. He said that while he was there he saw relations of his. When he returned he did not take any appropriate steps to obtain leave to enter the United Kingdom, and it is accepted that when he returned on 23 October 1995, he was again an illegal entrant. However, having returned in that way, he shortly after applied for leave to remain on the basis of his marriage to Sharon Hunt that had taken place in February 1995. It is argued on his behalf that, although as of 21 October 1995 he would not under the statement have been entitled to rely upon that marriage because it did not predate enforcement action, because he had re-entered the United Kingdom and therefore was liable to be required to leave again the marriage had a different status and did predate any enforcement action that might thereafter be taken against him. That argument was advanced. It appears that his asylum application was not then completed. On 7 June, he was served on behalf to the Home Secretary with a letter which refused him leave to remain, and likewise refused him asylum. The letter had an earlier date, but nothing turns upon that. This is the letter in respect of which the application for leave for move for judicial review is based. That letter is a short letter, It refers to his two successive entries into the United Kingdom, in each case as an illegal entrant, and it also refers to the date of his marriage. It continues:

"As I am sure you are aware, as an illegal entrant, your client had no entitlement to make an application for leave to remain in the United Kingdom under the Immigration Rules. Although it is the case that illegal entrants who have contracted genuine marriages to a person settled here may be allowed, exceptionally, to remain in the United Kingdom, discretion is exercised sparingly and only in cases where the marriage pre-dates enforcement action. The enforcement action in Mr. Adebiyi's case commenced on 29 September 1994, with the service of illegal entry papers. He can, therefore, have no expectation that any subsequent marriage will avail him. Clearly he cannot now expect to be availed by compassionate circumstances which are of his own making."

The remainder of the letter informs him of the relevant formalities which were shortly to be followed. Two further letters were sent to him in response to further submissions by solicitors on his behalf. The one on 16 July said:

"I have carefully reviewed Mr. Adebiyi's case but I am not satisfied that the circumstances are sufficiently compelling or compassionate to justify taking the wholly exceptional step of allowing him to remain in the United Kingdom."

Similarly, in response to yet further representation, on 30 July 1996, a person acting for the Secretary of State felt constrained to point out that he was of the opinion that Mr. Adebiyi's journey to the Republic of Ireland was a deliberate attempt to bring himself within the terms of favourable consideration under DP/2/93:

"However, I am satisfied that by making a voluntary departure to the Republic the initial enforcement action, commenced on 29 September 1994, is not negated. Mr. Adebiyi was an illegal entrant when he left the United Kingdom. The act of voluntary departure did not negate this, but put an end to consideration of any grant of leave to remain until Mr. Adeblyi returned to the United Kingdom. Thus it is correct to consider that the date on which enforcement action was commenced was 29 September 1994."

It is that reasoning, which is attacked in the argument of Mr. Nicol QC, to whom we are grateful for his clear submissions, and indeed in the notice applying for judicial review. It is said that the departure of the applicant from the United Kingdom in October 1995 made the initial enforcement action redundant and wholly irrelevant. The point is a very short point. It was rejected equally shortly by Ognall J in a judgment of which we only have counsel's note. In my judgment no arguable point is raised. The first and fundamental point is that this is not an application asserting a right of entry to the United Kingdom, or a right to remain in the United Kingdom. If it was such a case, then potentially anomalous or unusual results might flow and have to be accepted both by the Secretary of State and this court. But that is not the present situation. The applicant is seeking a discretionary leave to remain under the terms of a policy document. That policy document states its general principle to have regard to article 8 of the Convention on Human Rights and the family considerations which that reflects. It is pointed out that those considerations are perfectly capable of overriding even an unmeritorious immigration history. However, the policy document says "all deportation and illegal entry cases must be considered on their individual merits". Therefore, each case turns on its own facts and the Secretary of State has said that he will consider the merits of any application to remain, That does involve considering the merits, not bold unmeritorious technical arguments. Further, paragraph 2 starts with the words "As a general rule deportation action... should not be initiated or pursued..."in the situations referred to. It is, therefore, not a position which is without exception. It is one which had to be considered on its merits. The criterion which has been the subject of submissions before us is the criterion which refers to "the marriage pre-dates enforcement action". There is no identification of any particular enforcement action in that paragraph. It is completely generally expressed. In general terms, the marriage of this applicant did not pre-date enforcement action. When he married Sharon Hunt, he was already the subject of enforcement action. As is said in one of the letters from which I have quoted, the applicant must have appreciated at the time of his marriage that he could not found on that marriage under this policy statement because it was a marriage which he undertook at a time when he was subject to enforcement action. Therefore, in my judgment, it is clear that, both on the overall spirit of the policy statement and on its strict wording, this applicant does not have an arguable case. The reality of the situation is that he has sought, by a trip to Ireland of just a few days, to put himself in a position which he submits is significantly different from that which he was in before he travelled to Ireland. The trip to Ireland did not change his status as an illegal entrant. He was an illegal entrant before; he was an illegal entrant afterwards. The only marriage which he is entitled to rely upon is a marriage which he undertook at a time when he was subject to enforcement action. As I say, in my judgment his application for leave to remain is without merit. It is not surprising that it has been refused by the Secretary of State and, in my judgment, there are no arguable grounds for interfering with the decision of the Secretary of State. It follows that this application must be refused.

MILLETT LJ:

I agree. I am for my part prepared to accept that the applicant's two day visit to Ireland was undertaken from a genuine desire to visit his relatives there and not with any ulterior motive of improving his immigration status. I am, however, quite unable to accept that such a visit should have the effect of causing existing enforcement proceedings to lapse or become redundant as claimed. The applicant left the United Kingdom with a clear intention to return within a few days. He was plainly not intending to comply with the Secretary of State's requirement that he leave the United Kingdom. Enforcement action against him continued to be necessary. In fact, the applicant is in something of a dilemma. Either lie -was permanently leaving his wife in the United Kingdom when he went to Ireland without any intention of returning, in which case his own conduct would show no case for compassion now, or he was making only a short visit to his relatives in Ireland with the intention of returning to the United Kingdom after a temporary absence, which ought not to affect his immigration status at all. I agree that the application is without merit and should be refused.

SWINTON THOMAS LJ:

I also agree.

DISPOSITION

Application dismissed

Solicitors:

Ashok Patel & Co, London, SW17; Treasury Solicitor
 

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[1]* In March 1996 DP/2/93 was cancelled and replaced by three new guidance papers: DP/3/96 "Marriage policy", DP/4/96 "Children" and DP/5/96 "Deportation in cases where there are children with long residence".