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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte AMANKWAH

Queen's Bench Division

[1994] Imm AR 240

Hearing Date: 10 December 1993

10 December 1993

Index Terms:

Deportation -- overstayer -- married to a person with indefinite leave -- Secretary of State decided to deport applicant -- whether decision in conformity with internal policy document on deportation and family links -- whether on the reasons given, decision perverse. Immigration Act 1971 (as amended) s 3(5)(a): HC 251 paras 162-166.

Held:

The applicant for judicial review was a citizen of Ghana who had overstayed his limited leave in the United Kingdom. During his time as an overstayer he had married a person with indefinite leave. The Secretary of State decided to initiate deportation proceedings against him. In January 1993 the Home Office had issued to immigration officers a document giving guidance on deportation cases where the person involved had family links in the United Kingdom. Counsel argued that on the face of the record there were no reasons given why in this case the guidance given to immigration officers had not been followed. Held 1. It was clear that the policy set out in the document was one to which the Secretary of State in exercising his discretion in immigration cases had to have regard. 2. None of the documents in the case gave any indication as to why the Secretary of State had not followed his guidance policy in this case. 3. Insofar as it appeared not to be in conformity with the policy document, the decision was unfair and perverse.

Cases referred to in the Judgment:

Asif Mahmood Khan v Immigration Appeal Tribunal [1984] Imm AR 68.

Counsel:

N Blake for the applicant; D Pannick QC for the respondent PANEL: Popplewell J

Judgment One:

POPPLEWELL J: This is an application by the applicant to judicially review the decision of the Secretary of State for the Home Department served on 31 August 1993 to deport the applicant and the maintenance of that decision on 7 October and 25 October 1993. Leave was given by Brooke J. The facts are not in dispute. They are set out helpfully in the chronology prepared on both sides. The applicant is a citizen of Ghana. He entered the United Kingdom on 30 October 1985 with leave as a visitor for six months. That leave expired on 30 April 1986. He was thus an overstayer. From October 1990 he cohabited with Felicity Awuah who is now his wife. She has been in the United Kingdom since 1985. Indefinite leave was granted since 1988. On 13 April 1991 the applicant married Miss Awuah. He then applied for regularisation of his status on the ground of his marriage. On 11 July 1991 his application for leave was refused in these terms: "The Secretary of State has carefully considered your application for leave to remain in the United Kingdom with your wife but your marriage gives you no claim to remain under the Immigration Rules since you married at a time when you were remaining in breach of the immigration laws. Your application is hereby refused. The Secretary of State is currently considering whether it would be right to make a deportation order against you by virtue of section 3(5)(a) of the Immigration Act 1971. In considering your case, the Secretary of State is required by the Immigration Rules to take account of all relevant factors, including your marriage. To enable a decision to be reached in your case please answer all of the following questions." On 29 May 1992 the Secretary of State wrote to the applicant as follows: "I refer to your application to remain in the United Kingdom on the basis of your marriage to a woman settled here. The Secretary of State has carefully considered your case in the light of your marriage but is not prepared to allow you to remain here on this basis. As you have overstayed your leave since 30 April 1986 the Secretary of State has decided in the light of all the circumstances of your case to initiate deportation action against you under section 3(5)(a) of the Immigration Act 1971." On 9 November 1992 an explanatory statement was served on the then appellant setting out the reasons why an appeal should not be allowed. There is no challenge to that. The rules under which the Secretary of State had to consider this matter are HC251, paragraph 162: "In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although each case will rarely be identical with another in all material aspects." At paragraph 166: "Deportation will normally be the proper course where the person has failed to comply with or has contravened a condition or has remained without authorisation. Full account is to be taken of all the relevant circumstances known to the Secretary of State including those listed in paragraph 164 before a decision is reached." Paragraph 164 sets out a number of relevant factors which it is not necessary here to repeat. In the light of those paragraphs, it would on the face of it be impossible for this applicant to challenge the decision of the Secretary of State within the well-known rules which govern the practice of the court in interfering with decisions of the Secretary of State. Therefore, on the face of it, it is a perfectly ordinary case; ordinary in the sense that the courts are dealing with these cases every day, though it is of course not ordinary for the applicant. In January 1993 the Home Office issued an internal policy document. It matters not how it came into the hands of the applicant, but that it did is clear. It does not give rise to 'legitimate expectation' because it was not a published document upon which the applicant was entitled to rely. It is plainly a matter which the Secretary of State should take into account, and it has not been argued to the contrary. That document is before the court and needs to be read in some detail. It is a document from the Enforcement Policy Group dated January 1993 and is an instruction to IES, Immigration Enforcement Section. It is headed Marriage and Children: "Introduction 1. 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 spouse or child. 2. The instruction is divided into two sections: Section (a): Marriage Policy Para 1 . . . General considerations Paras 2-3 . . . Presumption to concede Para 4 . . . Presumption to proceed with enforcement action." There are then paragraphs 5 to 10 which deal with matters unrelated to the matters in the instant case. Section 10 deals with children and is not germane to the instant argument. The document goes on: "Section (a): Marriage Policy 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 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; and (b) the marriage has lasted two years or more or, in the case of a common-law relationship, the couple have cohabited for two years or more. It does not automatically follow, however, that deportation/removal is the right course where this test is not met. Full account should be taken of any evidence that a strong relationship has existed for more than two years (this will include any reasons why the couple did not marry earlier, eg waiting for a divorce to be finalised, saving to buy their own home); or (c) the settled spouse has lived here from an early age or it is otherwise unreasonable to expect him/her to accompany on removal; or . . ." In (d) he deals with children. Then there is a note to that paragraph: "Note (i) The subject's immigration history is of little relevance once it has been concluded that the marriage is genuine and subsisting . . . 3. In considering whether it is reasonable for a spouse to accompany on removal under paragraph 2(c) above, whilst the onus is on the United Kingdom settled spouse to make out a case for why it is unreasonable for him/her to join the family outside the United Kingdom, in general terms cases should be conceded if a United Kingdom settled spouse: . . . [and it then sets out a number of matters] . . . 4. There will be a presumption to proceed with section 3(5)(a), 3(5)(b) . . . or illegal entry action (subject to consideration of other relevant factors) in marriage cases where there are no children with the right of abode in the United Kingdom if: (a) neither partner is settled in the United Kingdom; or (b) the marriage is one of convenience . . . or (c) the couple are separated." The matter was then considered again, not in the light of that policy document but by the Secretary of State on 31 August 1993. His letter reads: "I must apologise for the long delay in replying to your letter of 28 January about Mr Amankwah. First of all I should make it clear that the notice of the decision to make a deportation order against Mr Amankwah set out fully the reasons for that decision. His leave to enter the United Kingdom had expired and his application to remain on the basis of his marriage to a woman settled here had been refused. The Secretary of State was therefore satisfied that he was remaining without leave. In considering whether deportation is the right course on the merits, the public interest is balanced against any compassionate circumstances of the case. Mr Amankwah's marriage was taken into careful consideration along with all the other known circumstances of the case. However, the marriage, which was entered into whilst he was in breach of immigration laws, gives him no basis to stay here whether it is genuine or not and the Secretary of State was not satisfied that there were any compassionate circumstances which were sufficiently compelling to outweigh the public interest in deporting him. In these circumstances it was not considered to be appropriate or necessary to interview the couple [there was a complaint there had been an absence of interview]." It is clear from that letter that the Secretary of State was saying two things: that it mattered not whether the marriage was genuine or not because that gave no basis as a matter of law to stay; and secondly, that the compassionate circumstances were not sufficiently compelling to outweigh the public interest, ie that the public interest be considered first and then whether there were any compassionate circumstances which took it outside that. There was further correspondence, and on 15 October the solicitors acting for the applicant drew the Secretary of State's attention to the circular to which I have just referred. On 25 October 1993 the Secretary of State wrote again: "The Secretary of State has carefully considered Mr Amankwah's application to remain in the United Kingdom on the basis of his marriage and has taken full account of the factors seemingly affected by Article 8 of the European Convention. He, however, notes that Mr Amankwah arrived here as a visitor on 30th October 1985. He did not then embark or seek to regularise his stay until 31st May 1991 when he applied for leave to remain on the basis of his marriage on 13th April 1991 to a Ghanaian national settled here. The Secretary of State also notes that Mrs Amankwah did not come to the United Kingdom until 1985. As explained in previous correspondence, Mr Amankwah's marriage in itself gives him no claim to remain under the Immigration Rules. The Secretary of State is not satisfied that there are sufficiently compassionate factors to warrant the exercise of discretion in Mr Amankwah's favour, or that his deportation would be in breach of the European Convention. Mr Amankwah's case has again been reviewed but the Secretary of State can find no reason to revoke the Deportation Order." I ought to say that Mr Blake's submission, as I have already indicated, does not depend on legitimate expectation nor on the fact that there is a breach of the European Convention. That is a matter to be decided by some much higher court on some other occasion. His contention is that the policy of the Secretary of State is required to be consistent by the statement in the House and required to be fair in accordance with administrative law. He drew my attention to the case of Kahn, which I confess does not seem to add anything to one's knowledge. The Secretary of State has deposed through Miss Griffith as follows: "In the present case, the Secretary of State concluded that deportation was the right course on the merits, balancing the public interest as against any compassionate circumstances. The Applicant had been admitted for six months as a visitor. Thereafter he failed to depart or to seek to regularise his position, until after his marriage in April 1991. The Secretary of State did not consider the compassionate circumstances outweighed the public interest . . ." She observes in relation to the instruction: "The instruction itself states, in the introduction, that it provides 'guidance', no more than that. On page 2, the guidance on deportation policy is stated to be given 'as a general rule'. It was intended that each case would obviously very much depend on its own facts. In considering the Applicant's case, the general guidance contained in the instruction has been considered. The decision in relation to the Applicant, although based on the facts of his case, is consistent with decisions taken by the Home Office in relation to others whose circumstances are similar." Although Mr Blake has drawn my attention to a passage in the affidavit of his instructing solicitor in relation to some other people, there is no evidence that the policy has not been consistent. I accept that the policy set out in that document is not an Act of Parliament and is not fixed in tablets of stone. It is quite clear, however, that it is a policy to which the Secretary of State in administering his discretion in immigration cases has to have regard. It is very difficult in the instant case to see the basis upon which the Secretary of State has come to his conclusion other than the simple fact that this is an overstayer. He being an overstayer, it is said the public interest outweighs the compassionate grounds; that is to say, the compassionate grounds of marriage. The decisions do not condescend to any question of why the presumption has not been adopted or why this is exceptional to what is clearly the proper presumption. There is no dispute on the facts that this applicant comes within paragraphs 2(a), (b) and (c) of the policy. One would expect in those circumstances that unless there was something which was exceptional to the general rule, this application would have been successful. There is nothing to indicate, other than the fact that the applicant was an overstayer, that any factor has been taken into account to take the case out of the general rule laid down by the Secretary of State's policy document. I think Mr Blake is right to say in effect that this is a "reasons" case. None of the documents which set out the Secretary of State's decision give any indication as to why the presumption has not been adopted other than to say that the Secretary of State is not satisfied that there are sufficient compassionate factors. The only non-compassionate factor is the fact that he is an overstayer. It is quite clear from the policy document that his immigration history is of little relevance. I have come to the conclusion in this case that the decision of the Secretary of State is not in conformity with the policy document, or at any rate it does not appear from the reasons which he has given to be in conformity with the policy document. To that extent I consider that the decision is not fair and is therefore perverse. For those reasons I shall quash the decision of the Secretary of State.

DISPOSITION:

Application granted

SOLICITORS:

Simons, Muirhead & Burton, London W1; Treasury Solicitor

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