R v. Secretary of State for the Home Department, Ex parte Toglaci

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

8 August 1997

Court of Appeal:
Beldam, Pill, Phillips LJJ

Deportation - overstayer - decision to deport - claim for asylum-marriage after dismissal of asylum appeals-applicant, on request, re-interviewed decision to deport maintained - whether Secretary of State was obliged to re-interview applicant-whether Secretary of State obliged to give detailed reasons for maintaining decision. Immigration Act 1971 s. 3(5)(a)

Renewed application for leave to move for judicial review following refusal by Owen J. The applicant was a citizen of Turkey. He was an over-stayer. He had gone to ground. When arrested he was served with intention to deport: he claimed asylum: his application was refused: his appeal was dismissed. He married a British citizen. Following representations from the applicant's solicitors, the applicant and his wife were interviewed. The Secretary of State decided to maintain the decision to deport the applicant.

Counsel argued that the letter in which the Secretary of State confirmed his decision was flawed because it did not demonstrate that careful consideration had been given to the matters explored in the interview, nor did it give full reasons.

Held:

1. The Secretary of State had been under no obligation to re-interview the applicant.

2. The Secretary of State, in the circumstances, had not been obliged to give fuller reasons in his letter refusing to alter his decision.

R Scannell for the applicant

K Routledge for the respondent

No cases are referred to in the judgment

BELDAM LJ: This is a renewed application for leave to apply for judicial review of the respondent's decision of 11 March 1997 refusing the applicant, an overstayer, leave to remain in the United Kingdom. The application is renewed after refusal by Owen J on 19 June 1997. The facts go back some time.

The applicant is a Turkish national. He was born in 1957 and he comes from Denizli in Eastern Turkey. On 14 November 1985 he arrived in the United Kingdom as a visitor. He claimed he had come to arrange for the sale of cereals as part of his business. He was given 28 days' leave to enter and then disappeared for four years. He was eventually arrested as an overstayer on 14 January 1991. On that day he was handed a notice of intention to deport him for overstaying. He then applied for asylum on the ground that he had a well-founded fear of persecution on political grounds. On 31 July 1991 his application for asylum was refused. On I October a deportation order was signed and directions for his removal were given on 9 October. On 11 October the applicant appealed.

On 7 November 1991 the Secretary of State gave reasons for his decision, and on 16 December 1991, the adjudicator at Leeds had to consider an issue whether documents had been properly served on the applicant. He adjourned that hearing after calling for further evidence, but on 27 February 1992 the adjudicator dismissed the appeal. From that dismissal the applicant appealed to the Immigration Appeal Tribunal on 28 July 1992. On 10 August his appeal was dismissed. On 21 October 1992 the applicant applied to the High Court for judicial review of the original decision of the Secretary of State made on 14 January 1991. On 10 November Jowitt J gave leave to move.

There followed an exchange of correspondence between the applicant and the Secretary of State, and eventually those proceedings for judicial review were compromised by consent. The proceedings were withdrawn on 11 May 1993. On 7 June 1994 the Secretary of State, by a further letter, announced his decision to deport on grounds of overstaying. The applicant appealed again.

On 28 February 1995 the special adjudicator dismissed an appeal against the Secretary of State's decision. The applicant then applied to the Immigration Appeal Tribunal for leave to appeal. That application was dismissed on 16 May 1995. Ten days later, on 26 May 1995, the applicant married Kathleen Patterson, now Kathleen Toglaci. On 16 June he applied to the Secretary of State making a request for leave to remain on the basis of his marriage. That application was refused. The Secretary of State said that he had carefully considered the applicant's case in the light of the known circumstances, but he did not consider that he should be allowed to remain on the basis of his marriage, nor were there sufficient compassionate factors for the Secretary of State to allow him to remain on an exceptional basis outside the immigration rules.

The Secretary of State said that there was no evidence that there had been a common law relationship of two years or more prior to the marriage, nor had satisfactory evidence been produced of a strong relationship prior to the marriage.

There then followed correspondence between solicitors instructed on behalf of the applicant and the Secretary of State. In the first letter the solicitors indicated that they required further clarification of the reasons which the Secretary of State had given for not treating the case as exceptional. They said:

"We accept that the marriage did in fact take place after the asylum appeal and after he had previously been subject to deportation proceedings. Those proceedings, however, had been abandoned and the order revoked and the fact remains that there was already a longstanding relationship with his wife. "

They suggested in that letter that they were prepared to provide additional evidence, but said that an interview would clarify the doubts expressed regarding the genuineness or otherwise of the marriage. By that I presume they were referring, not the genuineness of the formalities of the marriage, but whether the marriage had in fact been entered into with a view to making the claim for leave to remain as a spouse.

There was further correspondence. In a letter of 18 September, the solicitors set out in some detail the situation of the applicant's wife and her family, raising the question of the degree to which his wife's family depended on the applicant, either as a father figure or as a relative. They referred to Mrs. Toglaci's son by a former marriage, who was 101/2 years of age, who had not known his own father and who, it was said, looked to the applicant as a father figure and who would feel strongly any separation from the applicant if he returned to Turkey. They also pointed out that it would not be realistic for Mrs. Toglaci, having regard to her family connections in this country, to live in Turkey with the applicant if he was returned there.

On 4 October 1996 the Secretary of State, in answer to that letter, said that he "agreed that Mr. and Mrs. Toglaci should be interviewed and arrangements would be made... However no guarantee is given as to the outcome of the case in the light of any inter-view." That interview took place on 13 November 1996, and both Mr. and Mrs. Toglaci were accompanied by their solicitor. It led to the decision letter of 11 March which is sought to be reviewed in this application.

In the letter the Secretary of State gave reasons why he was not prepared to change his decision. He said that he had given careful consideration to the interview and the representations in the letters of 12 and 18 September. He reiterated that he was not satisfied that there had been any common law relationship akin to marriage prior to the marriage. There was no evidence produced of such a relationship. He pointed out that the marriage had taken place on 26 May 1995, and therefore had not lasted for more than two years, and so it did not meet the requirements of the marriage policy to which I shall refer.

He repeated what had already been said, that the applicant had married knowing full well that Mr. Toglaci was the subject of a deportation order and could therefore have no legitimate expectation that he would be allowed to remain in the country following his marriage. It made the suggestion that Mr. Toglaci should return to his own country and apply for entry clearance from abroad to join his wife in his country. That decision letter is now questioned by the applicant.

Owen J, after setting out the history as I have outlined it, recorded the substance of the criticism. He said:

"...it is true that there is no specific reference to each and every aspect of the relationship. Indeed, there is no express reference other than the fact that it is said that the Secretary of State is not satisfied that a common law relationship akin to marriage existed prior to their marriage, a factor which is not in issue. It is, in my judgment, not necessary for the Secretary of State to spell out word for word what was taken into consideration. It has been said that careful consideration was given to the interview. In my judgment there is nothing to show that that was not in fact so. I see no legitimate criticism of the decision which is contained in that letter.

He therefore refused leave.

Before this court Mr. Scannell has submitted that the decisions of Owen J and the Secretary of State's decision letter are flawed. The decision of Owen J is flawed because there was nothing to show that careful consideration was given to the matters mentioned in inter-view, and because he had referred to the fact that the relationship prior to the marriage was not akin to marriage as in any way impugning the reasoning of the Secretary of State. Mr. Scannell says that Owen J was wrong to say that there was nothing to show that careful consideration was not given to the interview, for the main paragraph which I have cited simply repeats matters to which the Secretary of State had referred in his earlier letter of September. In effect, it merely repeats the decision which he had reached on that day and, accordingly, the only reasonable inference is that the Secretary of State either had not given full consideration to the matters mentioned in interview or, if he had, he certainly had not given reasons for his decision.

The basis upon which the Secretary of State had to consider the applicant's case was contained in the Home Office instructions on cases involving marriage and children. The relevant instructions at that time were those brought into force in February or March 1993. The first section of those instructions contains this paragraph:

"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 judgement will need to be reached on the weight to be attached to the marriage as a compassionate factor."

The second paragraph makes it clear that, as a general rule, deportation action or illegal entry action should not be initiated or pursued where the applicant has a genuine and subsisting marriage to a person settled in the United Kingdom if the marriage predates the enforcement action. It is a further condition that the marriage has lasted two years or more. Further, by paragraph 7 of the Home Office instructions:

"Where there is conclusive evidence that a genuine and subsisting common law relationship akin to marriage exists, it should be considered... as if it were a marriage."

But the instruction goes on to point out that the onus rests firmly with the individual who seeks to benefit to provide conclusive evidence of the nature of the relationship. These instructions clearly show the considerations that were informing the Secretary of State when he wrote the letter of 11 March 1997 and when he had written the previous letter of 5 September 1996.

In the course of Mr. Scanner's able submissions, the court asked him whether, if the letter had ceased at the end of the first sentence of the second paragraph which concludes "but he is not persuaded to reverse his decision of 5 September 1996", he could have had any legitimate complaint about the way in which the Secretary of State had indicated his intention to abide by his earlier decision. Mr. Scannell accepted that he would be in some difficulty if the letter had ceased at that point but, he said, insofar as the Secretary of State went on to provide reasons, they (that is the reasons) are manifestly flawed.

In substance, Mr. Scannell's objection to the letter of 11 March 1997 is, as the learned judge said, that the Secretary of State did not set out in detail the statements which had been made at the interview and his conclusions upon them. But in my judgment, the Secretary of State was not bound to do so. He was not bound to interview the applicant; he decided to do so. There is no criticism of the procedure by which he did interview the applicant. The purpose of the interview was to enable the applicant, if he could, to persuade the Secretary of State that the circumstances which existed so far as his marriage were concerned were exceptional and took his case outside the generality of cases in which the Secretary of State will not, generally speaking, reverse a decision for deportation when a marriage has taken place after a deportation order has been made.

Mr. Scannell is quite correct when he says that the Secretary of State, acting under the instructions, has discretion in all cases of deportation and illegal entry to consider them on their individual merits. The Secretary of State in this case had already considered the case on the merits; insofar as Mr. Scannell has criticised the reasons given in the letter, they are directed to statements which are simply intended to explain that the Secretary of State had adhered to his earlier decision.

In my view the Secretary of State's letter could have gone into greater detail, but he was not required to do so. The letter stated the decision to which the Secretary of State had come, and he said, in effect, "I adhere to the previous decision because the matters on which I based that decision still remain persuasive with me, and as a result of the interview I am not persuaded that they are wrong."

In my view, Mr. Scannell has not shown grounds on which this court could review this decision. I would accordingly refuse the application.

PILL, LJ: I agree.

PHILLIPS LJ: I also agree.

Application dismissed

Solicitors: David Gray & Co, Newcastle upon Tyne; Treasury Solicitor