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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte RAMESH KUMAR

CO/1050/95

26 October 1995

Queen's Bench Division: Sedley J

Illegal entrant-applicant served with notice that Secretary of State had concluded he was an illegal entrant-subsequent marriage-Secretary of State decided applicant could not benefit from marriage guidance policy whether the giving of notice to the applicant that he was an illegal entrant was the initiation of enforcement action.

The applicant for leave to move for judicial review was a citizen of India. He was refused leave to enter the United Kingdom: he was granted temporary admission but then absconded. Subsequently he applied for asylum. Later he was served with notice that he was an illegal entrant. After the service of that notice, the applicant married. The Secretary of State concluded that the marriage had post-dated the initiation of enforcement action against the applicant who, in consequence, could not benefit from the guidance policy on marriage.

Before the court it was contended that the service of notice that the applicant was an illegal entrant was not the initiation of enforcement action.

Held

1. It was clear from the wording of the guidance policy that enforcement actions for illegal entry embraced both the initiation and pursuance of such action. Manifestly the notice served on the applicant was the initiation of enforcement action.

2. The decision of the Secretary of State that the applicant could not benefit from the terms of the guidance policy was correct.

H Singh for the applicant S Kovats for the respondent

Case referred to in the judgment:

R v Secretary of State for the Home Department ex parte Napoleon Ekewuba [1995] Imm AR 89.

SEDLEY J: Mr Singh moves, on behalf Ramesh Kumar, for leave to challenge the decision to remove Mr Kumar to India. Mr Kumar, who is a citizen of India, came to the United Kingdom in 1986 and sought leave to enter as a visitor. He was refused leave, but was temporarily admitted and then absconded during that period. Some three-and-a-half years later he surfaced and applied for asylum. Two years after that, in 1992, notice of illegal entry was served upon him. The notice is in these terms and it is addressed to the entrant:

"I have considered all the information available to me and I am satisfied that you are an illegal entrant as defined in s. 33(1) of the Immigration Act 1971.

You are therefore a person who is liable to be detained pending the completion of arrangements for dealing with you under the Act."

Then there is a footnote that refers to the relevant parts of the relevant schedule of the Act.

"… I propose to give directions for your removal from the United Kingdom in due course and details will be given to you separately."

There then follows provision for the immigration officer either to authorise detention or to grant temporary admission.

In Mr Kumar's case he was further temporarily admitted. It was some eight months later, in February 1993, that Mr Kumar married a British Citizen, Inderjit Kaur, and a few weeks later applied for leave to remain on the basis of his marriage. It was not until September of that year, following a Sikh ceremonial wedding, that Mr Kumar began to live with his wife, but nothing turns upon that and I am sure that nothing ever would if cohabitation following a civil British marriage merely awaits the completion of the individual's own religious ceremonies. The important thing is that he married after he had received the notice of illegal entry.

In March 1994 Mr Kumar was refused asylum. At an interview which was conducted on the day of refusal and which, from its heading, concerned all three issues (his illegal entry, his application for asylum and his application for further leave to remain as a spouse) an immigration officer has recorded that Mr Kumar's wife, as she now was, who was present at the interview, when asked if she would be willing to live in India with her husband if he was removed said "somewhat cautiously" that she would.

For a reason which in his evidence he attributed to advice given to him by an immigration officer (though this is no longer pursued as a ground) Mr Kumar withdrew his appeal against the refusal of political asylum. It was in November 1994 that he did so and in January 1995 the Home Secretary refused his application for further leave to remain on the basis of his marriage. By letter of 26 January the Home Secretary wrote to Mr Kumar's solicitor:

"It is normal practice to remove those persons found to be in the United Kingdom unlawfully unless there are reasons, usually of a compelling or compassionate nature, not to do so in a particular case. In February 1993 Mr Kumar married Inderjit Kaur, a British citizen. However, this marriage took place after Mr Kumar was served with notice of illegal entry and, as such, its timing does not count in his favour. Furthermore, Miss Kaur has indicated her willingness to return to India with her husband and, in all the circumstances of the case, the Secretary of State does not consider that the marriage should provide Mr Kumar with a basis of staying in the United Kingdom."

Finally, on 24 March 1995, again in a pro forma document directions were given for the removal of the applicant by a prescribed flight.

Let me deal first with the limb of the challenge which Mr Singh predicates on the statement in the letter of 26 January from the Immigration and Nationality Department of the Home Office that Mr Kumar's wife had indicated her willingness to return to India with him. Contrary to the clear direction of Macpherson J, who in June of this year directed renewal in open court on notice to the. Home Office, in particular so that they could comment on the sentence to which I have referred and which in their evidence the applicant and his wife directly deny, the applicant's solicitors failed to convey Macpherson J's views to the Home Office or the Treasury Solicitors until a few days ago.

The Home Office has not been able to put on affidavit a formal response to the denial, but Mr Singh has realistically and honourably accepted that the affidavit could do no more, in all probability, than exhibit the immigration officer's report of 23 March 1994 which is before me and which I have recited in the material part.

On the assumption, which is a reasonable assumption, that this report was before the decision-maker and/or letter writer there is, in my view, nothing arguably wrong with the letter having recorded a willingness on Mrs Kaur's part to return to India with her husband. It was known to the decision-maker from the report that it was not a bald willingness to return, but a cautious and conditional willingness if her husband was removed, which manifestly was going to be against his and her wishes. Indeed, it is difficult to see how either willingness or unwillingness in this situation is capable of furnishing an important element in the decision-making process, since both have to be regarded as given under protest. For the rest, there is nothing wrong, subject to the point to which I now come, with the remainder of the letter.

The principal point, to which I now turn, is Mr Singh's argument that although the stated policy of the Home Office and the Home Secretary makes it clear that powerful consideration will be given to a marriage to a person settled here, both in deportation cases and illegal entry cases, this is, according to paragraph 2(a) of the policy, "only where the marriage pre-dates the enforcement action". Mr Singh submits that the giving of the notice of 4 June 1992, to which I have referred in detail, is not on any sensible construction of the language of the policy, enforcement action. It is therefore worth looking at the opening words of this paragraph of the policy to see the context in which the phrase "enforcement action" is cast. The paragraph reads:

"As a general rule deportation action under s. 3(5)(a) or s. 3(5)(b), in noncriminal 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 …"

and there then follow the conditions, the first of which I have quoted as the relevant one.

It is clear from the terms in which that part of the policy is expressed that enforcement action for illegal entry embraces both the initiation and the pursuance of such action. Nothing can more clearly be the initiation of enforcement action against an illegal entrant than the notice to an illegal entrant, which in this case was given on 4 June 1992 before either the civil or the religious marriage.

It is therefore not necessary to consider Mr Kovats' submission for the Secretary of State that it is for the Secretary of State primarily to interpret his own policy. This may be debatable if it is the case, and I only mention the arguments, that a publicly stated policy of this kind creates a legitimate expectation in those affected, and if it be arguable that the construction of the policy is for the court and not the policy maker. It is not an issue that falls to be determined here.

The matter does not, of course, end with the failure of the applicant t meet the prescribed condition of the policy, as Harrison J held in the case of Ekewuba [1995] Imm AR 89. Even where the marriage post-dates enforcement action it is still something to be taken into account. The difference is that it is not entitled to be accorded the weight that the policy would other wise give it. It was taken into account in this case and Mr Singh realistically does not suggest otherwise.

Mr Singh prays in aid one further point in support of his construction. H submits that the notice to an illegal entrant is no more than a notice that issue is joined between him and the Home Secretary so that he may, for example resort to his appeal rights if he wishes to challenge the Home Secretary' view. This is not very obviously the case. Whereas in a deportation case the issues giving rise to the decision to deport will in the ordinary way be susceptible to appeal before any final action is taken, in illegal entrant case the entrant has limited rights of appeal, and they are rights which can only be exercised once he has gone. This again makes it difficult to see the notice of illegal entry as merely a preliminary warning of what may follow. It is truly, in every sense, in any view, the initiation of enforcement action and the contrary, I am afraid, seems to me unarguable.

With gratitude, therefore, for the submissions that have been put before m and also in recognition of the fact that Mr Kumar, in spite of his earlier breaches of the law, has established himself as a successful and prosperous businessman in this country, the application must be refused.

Application refused

Solicitors: Murria & Co, Birmingham; Treasury Solicitor

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.