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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte LAILY BEGUM

CO/1808/96

12 June 1996

Queen's Bench Division: Dyson J

Leave to remain, exceptional-refusal by Secretary of State-deception by applicant-whether Secretary of State entitled to take account of applicant's immigration history in exercising discretion-whether policy DP/2/93 should have been applied-whether in exercising his discretion the Secretary of State should have regarded the interests of the applicant's children as paramount.

The applicant was a citizen of Bangladesh. She had in 1976 contracted a polygamous marriage with a British citizen: of that union four children were born. Her husband died. The children were issued with British passports. She sent the three youngest children to the United Kingdom where they were put into local authority care. She, herself, three years later, came to the United Kingdom under a false name. She was refused leave to enter but granted temporary admission, she having claimed asylum.

The children then went to live with her. An application was made for her to be granted exceptional leave to remain, outside the immigration rules, to allow her to remain with the children. That application was refused. In reaching his decision the Secretary of State took account inter alia of the applicant's immigration history: he also concluded that the children could without difficulty re-settle in Bangladesh.

Counsel argued that the Secretary of State should not have taken against the applicant her immigration history. She had not been treated as an illegal entrant, but could have been so regarded and therefore the guidance in the marriage policy DP/2/93 should have been followed. Moreover he should have treated the interests of the children as paramount.

Held

1. The applicant had not been treated as an illegal entrant and the guidance policy DP/2/93 did not therefore apply: it was irrelevant that the applicant could have been treated as an illegal entrant.

2. It followed that the Secretary of State had been entitled to take account of the applicant's immigration history.

3. In exercising his discretion in immigration matters the Secretary of State was not obliged to treat the interests of the children as paramount, albeit their interests were a factor to be taken into account as the Secretary of State had done: his position was not the same as the courts in exercising their jurisdiction under the Children Act.

Miss N Finch for the applicant

Miss E Grey for the respondent

Cases referred to in the judgment:

Abu Shahed v Secretary of State for the Home Department [1995] Imm AR 303.

Re H (a minor) (Adoption application) (CA) The Times 9 May 1996: The Independent 9 June 1996.

DYSON J: This is an application for leave to apply for judicial review of a decision by the Secretary of State of 30 April 1996 to refuse to grant the applicant exceptional leave to remain in the United Kingdom outside the immigration rules, and, further, his decision of 22 May 1996 to remove her to Bangladesh. The applicant now also seeks to challenge the confirmation of those earlier decisions contained in the Secretary of State's letter of 10 June.

The background to this case is somewhat complicated. The applicant was born in 1959, a citizen of Bangladesh. On 31 January 1976 she married a British citizen in Bangladesh, becoming his second wife. Between 1978 and 1984 she gave birth to four children. Those children are now aged 12 to 18. The oldest child lives alone. There are two girls aged 14 and 16, and there is a boy aged 12. Two of the four children have suffered from severe emotional problems.

Reverting to the history, in 1986 the applicant's husband died. Between 1987 and 1990 she placed three of her children in an orphanage in Bangladesh. On 21 April 1992 she was refused a certificate of entitlement to the right of abode in the United Kingdom on the grounds that her marriage had been polygamous.

In about June 1992 she applied for British passports for the four children, and also for a fictitious child. Passports were granted to the four children, who qualified by reason of their late father's nationality. In August 1992 she placed her four children on a plane and sent them to the United Kingdom where they were placed in local authority care.

On 4 January 1995 she arrived in the United Kingdom under a false name, claiming to be the mother of four children who, in fact, were unrelated to her. She sought to use forged American visas and claimed that she was travelling onwards to the United States. Leave to enter was refused. She appealed, but then withdrew her appeal, and instead claimed political asylum, still using her false name. She was granted temporary admission.

She made contact with her children who were (by now) in foster care in Oxford and in London. On 28 March 1995 she applied for exceptional leave to enter in order to be with her children. By this time she had disclosed her true identity and used her real name.

In July 1995 the children came to live with her. On 14 September 1995 she was refused leave to enter. Thereafter further representations were made on her behalf, including a psychologist's report.

Eventually, on 30 April 1996, the Secretary of State wrote a letter to a Member of Parliament, who, by this time, had taken up the applicant's cause. He gave his reasons for refusing exceptional leave to remain. He stated that in reaching his decision he had noted that the applicant had employed considerable deception in her attempt to gain admission to the country. To this I have already referred. He said that he had taken due account of the circumstances of the children, bur noted that prior to their arrival in this country they had spent five years in an orphanage in Bangladesh. He noted also that the applicant had chosen to send her children at considerable expense to this country in the full knowledge that they had no family nor any means of support here, at a time when she was aware that she could not qualify to join them.

The immigration service had concluded that the applicant had deliberately sent the children in an attempt to facilitate her subsequent entry. He stated that he had taken into consideration the psychologist's opinion concerning the children's development. He said, however, that the applicant had no claim under the immigration rules to enter the United Kingdom, and it was she who had decided to separate herself from her children.

He observed that the children had been in the United Kingdom for only three years and had spent their formative years in Bangladesh, and he thought that they would be able to adapt to life there again. He could not accept that the applicant would be unable to look after them in Bangladesh. He referred to the presence of her family in Bangladesh, and noted that she had, when necessary, found the funds required to send her children and herself to the United Kingdom.

He then went on to say:

"In view of the potential for abuse, we do not believe it would be right to operate a policy where the presence of British children in the United Kingdom constituted, in itself, grounds for allowing a parent who would not otherwise qualify for entry, to remain"

The rest of the letter deals with article 8 of the European Convention on Human Rights but no challenge is now made to the decisions by reference to that article.

Following the institution of these proceedings for judicial review, the Secretary of State looked at the case again and communicated a further decision in his letter of 10 June. Having recited the history at great length, which I have already outlined, he repeated the reasons that he had set out in the earlier letter.

He stated (it is true in the context of a consideration of the article 8 point) that the applicant should have had no expectation of being allowed to remain in the United Kingdom to pursue her family life here, and that it would be reasonable to expect her and her children to pursue family life in Bangladesh, given the relatively short period that the children have spent in the United Kingdom.

It is against that background that Miss Finch submits that the Secretary of State has arguably erred in reaching his decision. Her first submission is that the Secretary of State should not have taken into account the applicant's immigration history at all. Alternatively, he should have given only small weight to it. She bases that submission on the contents of the guidelines contained in DP/2/93. She submits that DP/2/93 governs this case, and that the Secretary of State has erred in regard to this case as one to which DP/2/ 93 applies.

If I were satisfied that DP/2/93 applied then I would give leave in this case, since it is plain that the Secretary of State has placed considerable weight on the applicant's unmeritorious immigration history. At the very least, it would be arguable that on the basis of DP/2/93 he should have placed either no weight or very little weight on that fact. I am satisfied, however, that DP/2/93 does not apply in the present case. DP/2/93 applies to cases where applicants are subject to deportation and/or to illegal entry cases. Of that there can be no doubt. Indeed there is authority binding on me in Abu Shahed v Secretary of State for the Home Department [1995] Imm AR 303 at 308 to that effect.

Miss Finch seeks to escape from the consequences of that decision by saying that the applicant could and should have been treated in this case as an illegal entrant. The fact is, however, that she was not treated as an illegal entrant. It is not suggested that the decision to grant her temporary admission was in some way a sham or not taken bona fide. The advantages to the applicant in not being treated as an illegal entrant are obvious. One of them is that she was not liable to criminal proceedings for breach of the Immigration Act.

It seems to me that since, perfectly properly, the Secretary of State decided not to treat her as an illegal entrant, but merely to grant her temporary admission, it is not now possible for the applicant to persuade the court in a different context that she should be treated as if she were an illegal entrant.

Accordingly, I conclude that DP/2/93 has no application. It must follow that the first ground advanced fails. It is not suggested by Miss Finch that, absent DP/2/93, it was improper for the Secretary of State to have regard to the unmeritorious immigration history when deciding whether exceptionally to grant leave to remain outside the immigration rules.

The other ground advanced by Miss Finch is that the Secretary of State misdirected himself when considering what weight to give to the welfare of the children. Basing herself on the recent adoption case: Re H (a minor) (Adoption application) The Independent 5 June 1996 (a decision of the Court of Appeal), she submits that the interests of the children were paramount, and that the Secretary of State was in error in failing to treat those interests as paramount. There is no doubt that the Secretary of State had taken into consideration the interests of the children, but it is equally clear that he had not treated their welfare as a paramount consideration, but merely as a consideration to be taken into account in the balancing exercise that he sees himself as required to perform.

I accept the submission of Miss Grey in answer to that. She argues that there is a difference of principle between the jurisdiction exercised by the court in adoption cases and the functions performed by the Secretary of State when deciding how to deal with immigration applications where the interests of children are involved. The way in which the court exercises its original jurisdiction under the Children Act 1989 is stated in that statute and has been developed by case law. The obligations placed on courts by the Children Act are not imposed upon the Secretary of State. When the court is reviewing a decision of the Secretary of State in a case such at this, it applies Wednesbury principles.

I am satisfied that the Secretary of State was under no obligation to treat the interests of children as a paramount consideration when carrying out his balancing exercise. His obligation was no more than to have regard to the interests of the children. The weight to be placed on those interests was a matter for him, and unless the way in which he assesses the weight was perverse in the Wednesbury sense, the court should not interfere.

Miss Finch submits that there is no basis for thinking that the applicant could look after her children if they all went back to Bangladesh. The Secretary of State was, in my view, entitled, for the reasons that he gives, to conclude that the applicant would be able to look after her children in Bangladesh. The result is that the second ground also fails and the application must be dismissed.

Application dismissed

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