Mahmood, R(On Application of) v Secretary Of State For Home Department [2000] EWCA Civ 315 (8 December 2000)

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Cite as: (2001) 3 LGLR 23, [2001] 1 WLR 840, [2001] Fam Law 257, [2001] 2 FCR 63, [2001] Imm AR 229, [2001] INLR 1, [2001] ACD 38, [2001] HRLR 14, [2001] UKHRR 307, [2000] EWCA Civ 315, [2001] 1 FLR 756, [2001] WLR 840

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JISCBAILII_CASE_IMMIGRATION

Case No: C/2000/0385

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF

JUSTICE QUEEN'S BENCH DIVISION

(MR JUSTICE OWEN)

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 8 December 2000

B e f o r e :

THE MASTER OF THE ROLLS

LORD JUSTICE MAY

and

LORD JUSTICE LAWS

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THE QUEEN



- and -


THE SECRETARY OF STATE

FOR THE HOME DEPARTMENT

- ex parte -

Respondent


AMJAD MAHMOOD

Appellant

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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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Frances Webber (instructed by Thompson Leatherdale for the Appellants)

Lisa Giovannetti (instructed by Treasury Solicitors for the Respondent)

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Judgment

As Approved by the Court

Crown Copyright ©

LORD JUSTICE LAWS:

INTRODUCTORY

1. This appeal is brought against the judgment of Owen J, given on 2 November 1999, when he dismissed the appellant's application for judicial review of the Secretary of State's decision to remove him from this country as an illegal entrant. Although the appellant claimed and was refused asylum in this country, these proceedings are not concerned with that aspect of the case, but rather with the Secretary of State's refusal to allow him to remain as the husband of a British citizen. The Secretary of State has considered the matter more than once. His latest decision letter is dated 29 September 1999. Judicial review papers were first lodged at the Crown Office as early as 22 January 1998 (to challenge the Secretary of State's first decision letter dated 15 December 1997), and amended on 7 December 1998 (so as to assault the second decision letter, dated 23 November 1998). Before Owen J and this court the proceedings have been treated as directed against the latest letter, of 29 September 1999. Mantell LJ gave permission to appeal on 6 April 2000.

2. Amongst other matters the appeal raises two particular issues of some importance, which however were only exposed in the course of argument in this court. The first concerns the application of the Human Rights Act 1998. As is well known the principal provisions of that Act, incorporating into our law the substantive rights guaranteed by the European Convention on Human Rights and Fundamental Freedoms, took effect on 2 October 2000. The first issue may at this stage be expressed as follows. Where a public body (here the Secretary of State) has before 2 October 2000 (here on 29 September 1999) taken an executive decision to the effect that on a future date he or it will take certain action (here, to remove the appellant from the United Kingdom) which has however not been carried into effect before 2 October 2000, and upon a date after 2 October 2000 the High Court or this court on appeal is concerned to scrutinise the decision upon an application for judicial review, does the court look only at the pre-October 2000 executory decision and so judge its legality upon the premise that the European Convention rights are not domestic law, or does it look forward to the action which (if the court permits) the public body will take to give effect to its earlier decision, necessarily after 2 October 2000, and so pass judgment on the footing that the Convention rights are fully in play since the action is proposed to be taken after their incorporation?

3. The second issue is raised by Miss Webber's submission for the appellant that this court is effectively in as good a position as was the Secretary of State to form a judgment as to the competing interests which militate for and against the appellant's removal. The submission promotes the question, how intensive is the proper standard of judicial review of the Secretary of State's decision? And it is connected with the issue: does the proper standard differ according to whether or not the court is considering incorporated Convention rights, and if so, how?

THE FACTS

4. Before addressing these and other issues in the case I should describe the facts. The appellant who was born on 16 August 1968 is a citizen of Pakistan. On 26 November 1994 he entered the United Kingdom clandestinely in a lorry (or was later to claim that he had done so). On 11 January 1995 he applied for asylum. His claim was refused on 27 October 1997, and he was served with notice of removal directions as an illegal entrant. However a week earlier, on 20 October 1997, he had married Salma Yashin, who is a British citizen. In fact she had herself come from Pakistan, and with members of her family had settled in the United Kingdom, when she was about thirteen. Her parents, brothers and sisters live in this country.

5. The appellant appealed against the Secretary of State's decision refusing asylum, and also applied for leave to remain in the United Kingdom on the basis of his marriage. His asylum appeal was dismissed by the Special Adjudicator on 17 December 1997. It does not appear to have been prosecuted with any great vigour; the Special Adjudicator observed that "[t]he appellant did not appear at the hearing to give oral evidence. No explanation for his absence was received." The appellant's marriage application was refused two days earlier, on 15 December 1997. In the decision letter of that date it was pointed out that he had no claim to stay under the Immigration Rules; and that was correct. However the Secretary of State proceeded to consider the case in light of his "Marriage Policy", set out in a document known by its serial number as DP3/96.

6. Given the arguments in the case it is convenient to set out the material provisions of DP3/96 at this stage. Together with its predecessor DP2/93, it has many times been considered by the courts. As is stated in the Introduction the document "provides guidance, in general terms, on the consideration of cases of those persons liable to be removed as illegal entrants or deported who have married a person settled in the United Kingdom." Caseworkers are reminded (paragraph 4) that illegal entrants or persons liable to be deported acquire no right under the Rules to remain in the United Kingdom by virtue of marriage to someone settled here. The document then describes two situations between which there is a plain antithesis. The first is set out under the heading, "Marriages that pre-date enforcement action", and is dealt with at paragraphs 5 - 7. The second is headed "Marriages that post-date enforcement action", and is dealt with in paragraph 8.

7. Paragraph 5 states in part:

"As a general rule, deportation action... or illegal entry action should not normally be initiated in the following circumstances:

(a) where the subject has a genuine and subsisting marriage with someone settled here and the couple have lived together in this country continuously since their marriage for at least two years before the commencement of enforcement action;

and

(b) it is unreasonable to expect the settled spouse to accompany his/her spouse on removal."

There is then set out certain guidance as to what is meant by "reasonable" and by "commencement of enforcement action". Paragraph 6 contains some observations about applicants with criminal convictions. Paragraph 7 refers to cases where there are children with the right of abode here, and states that "the crucial question is whether it is reasonable for the child to accompany his/her parents abroad", as regards which one factor is the age of the child ("in most cases a child of 10 or younger could reasonably be expected to adapt to life abroad").

8. Paragraph 8 (under "Marriages that post-date enforcement action") states:

"Where a person marries after the commencement of enforcement action removal should normally be enforced. The criteria set out in paragraph 5 do not apply in such cases. Paragraph 284 of the Immigration Rules makes it clear that one of the requirements for an extension of stay as the spouse of a person present and settled in the United Kingdom is that `the marriage has not taken place after a decision has been made to deport the applicant or he has been recommended for deportation or has been given notice under s.6(2) of the Immigration Act 1971' [sc. which relates to illegal entrants]. Marriage cannot therefore in itself be considered a sufficiently compassionate factor to militate against removal... The onus is on the subject to put forward any compelling compassionate factors that he/she wishes to be considered which must be supported by documentary evidence. Only in the most exceptional circumstances should removal be stopped and the person allowed to stay."

9. DP3/96 is badly drafted. The circumstances of a person in the appellant's position are not catered for in the text. His marriage pre-dated enforcement action, but not by two years; so he has not the advantage of paragraph 5, as the decision letter of 15 December 1997 stated. Equally, he is not condemned by paragraph 8. There is however a flow chart attached to DP3/96, which shows in effect that in the case of an immigrant in the appellant's position the Secretary of State's view is that in the absence of exceptional circumstances "enforcement action is appropriate". (I note that the question in the chart, "Has the Marriage lasted for at least 2 years?" must mean "Had the marriage lasted for a least 2 years before enforcement action?", since otherwise the flow chart would be inconsistent with the policy.) That is unsurprising. The appellant is an illegal entrant within the meaning of the Immigration Act 1971; and unless the Secretary of State's policy in relation to illegal entrants contained a prima facie bias in favour of their removal, it would not be a policy supporting immigration control at all. However, I hope that the Home Office will look again at the terms of DP3/96, if only for clarity's sake.

10. The letter of 15 December 1997 referred also to Art. 8 of the European Convention, which guarantees (Art. 8(1)) the right to respect for family life; "but [the Secretary of State] has concluded that any disruption which may result from your client's removal is fully justified in the wider public interest of maintaining a firm immigration control." The letter concluded with an indication that the appellant's wife might accompany him on his removal at the public expense; alternatively it would be open to him "to apply abroad in the proper manner for entry clearance to return to the United Kingdom as a foreign spouse, although... I am unable to say in advance how long such an application would take to process, or to guarantee the outcome." And so the appellant's application to remain on grounds of marriage was refused.

11. On 22 January 1998 judicial review papers were first lodged, seeking to challenge the decision of 15 December 1997. On 5 November 1998 leave to move was refused on the papers by Moses J. However very shortly before that decision, on 23 October 1998, a child had been born to the appellant and his wife. His solicitors wrote to the Home Office on 18 November 1998, setting out detailed representations. They referred to the child's birth, and made many other points besides. They emphasised the presence in this country of the wife's own close relatives, and the economic consequences (as they were stated to be) of the appellant's removal: he had regular work at a filling station in Reading and if he were sent away his wife, unable to return to her own previous job as a machinist while caring for her child, would be bound to look for support from public funds.

12. On 23 November 1998 the Secretary of State's second decision letter was written to the appellant's solicitors. It stated:

"... we do not consider that your letter contains any new evidence which might cause us to reverse the decision to remove your client from the United Kingdom... However, in view of your representations it has been agreed... that your client's removal from the United Kingdom will be deferred from one week as requested."

13. This completely sidelined the birth of the child without a mention; it is no surprise that Owen J dubbed it "not a clever letter". Amended judicial review grounds were lodged on 7 December 1998, complaining inter alia that it was unreasonable of the Secretary of State not to treat the birth of the child as a proper basis for altering his previous decision, and alleging a failure to take into account the right to private and family life: a reference to Art. 8 of the Convention is clearly intended. On the same day, 7 December 1998, Collins J gave leave to move for judicial review.

14. On 22 September 1999 the appellant's solicitors made further representations, but as I understand it no particular significance is sought to be attached to what was said then. However I should note that by this stage the appellant and his wife were looking forward to the birth of their second child, due in October 1999. The Secretary of State's final decision letter was written as I have said on 29 September 1999, again to the appellant's solicitors. It is necessary to set out these following extracts.

"... Your client does not fall within paragraph 5 of the Guidelines [sc. DP3/96]. Of course, that is not to say that the fact of the marriage and other compassionate factors will not be taken into consideration...

... Notwithstanding the general policy the Secretary of State has considered whether it would be right to allow your client to remain but having considered all the circumstances of his particular case has concluded that there are insufficient compassionate circumstances to justify a concession on the grounds of the marriage. Furthermore your client has not made out a case for the exercise of discretion on other grounds. Although his wife is a British citizen and may have no desire to live in Pakistan, it has to be borne in mind that she should have been aware that his immigration status was at the least uncertain when they married and she should therefore be prepared to accept the consequences. The Secretary of State has also given careful consideration to the fact that the couple have one child born on 23 October 1998 and that another child is expected on 26 October 1999. The Secretary of State considers that it would be reasonable to expect that both children will be able to adapt to life abroad with their parents having regard to their age and the relatively short period of time they will have spent in the UK. In these circumstances the Secretary of State is not persuaded that the position of your client's family constitutes a sufficiently compelling reason for making him an exception to the normal practice of removing illegal entrants.

Although it does not yet form part of the UK domestic law the Secretary of State has also had regard to Article 8 of the ECHR, and does not accept that removal to Pakistan would amount to a breach. There is no reason to suppose that a young able-bodied couple, such as your client and his wife, should be unable to establish family life with their 2 children in Pakistan. Your client's wife originates from Pakistan and it can be expected that she will be able to readjust to life there if she chooses to return with her husband and children as a family unit. They may accompany him, at public expense if necessary, should this be their wish. Equally they can remain in the United Kingdom and support any application he makes abroad to return in the proper manner as the spouse of a person settled here. In any event, it is the view of the Secretary of State, who has taken all your representations on your client's behalf fully into account, that any concerns there may be about the family's welfare are outweighed by the public interest in maintaining an effective system of immigration control."

The appellant's second child was born on 6 October 1999.

15. Less than a month later, on 2 November 1999, Owen J dismissed the judicial review application. Miss Webber criticises his judgment, in large measure on the ground that his reasoning is limited to the exercise of satisfying himself that all relevant considerations had been taken into account. Thus he adopted no more nor less than a conventional Wednesbury approach: [1948] 1 KB 223. Miss Webber says that something altogether more intrusive is required of the court on judicial review.

THE ARGUMENTS IN THE CASE

16. Upon the question, what is the correct standard of review in a case such as this, there are at least in theory three possible approaches. The first is the conventional Wednesbury position which Miss Webber says the judge wrongly adopted. On this model the court makes no judgment of its own as to the relative weight to be attached to this or that factor taken into account in the decision-making process; it is concerned only to see that everything relevant and nothing irrelevant has been considered, and that a rational mind has been brought to bear by the Secretary of State in reaching the decision. The second approach recognises that a fundamental right, here family life, is engaged in the case; and in consequence the court will insist that that fact be respected by the decision-maker, who is accordingly required to demonstrate either that his proposed action does not in truth interfere with the right, or if it does, that there exist considerations which may reasonably be accepted as amounting to a substantial objective justification for the interference. The third approach directly engages the rights guaranteed by the European Convention; it would require the court to decide whether the removal of the appellant would constitute a breach of Article 8. This third position engages the first of the two issues which I identified at the outset. It is convenient to set out the terms of Art. 8 of the Convention at this stage:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others."

17. If the first approach is the right one, the challenge to the Secretary of State's decision is in my judgment wholly without merit. Miss Webber submitted that there were certain important matters not referred to in the letter of 29 September 1999. I shall have to refer to those in due course, but it is enough for present purposes to state that if the test of review is the conventional Wednesbury principle, it is impossible to conclude that the decision was an irrational one or that the Secretary of State had failed to consider any facts put to him, or misapprehended the law.

18. However the application of so exiguous a standard of review would in my judgment involve a failure to recognise what has become a settled principle of the common law, one which is entirely independent of our incorporation of the Convention by the Human Rights Act 1998. It is that the intensity of review in a public law case will depend on the subject-matter in hand; and so in particular any interference by the action of a public body with a fundamental right will require a substantial objective justification. In this context the following passage from the judgment of Sir Thomas Bingham MR as he then was in Ex p. Smith [1996] QB 517, 554, has often been repeated:

"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied ... that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."

I should also cite this following passage from the judgment of Lord Woolf MR as he then was in R v Lord Saville ex p. A [1999] 4 AER 860, 872:

"What is important to note is that when a fundamental right such as the right to life is engaged, the options available to the reasonable decision-maker are curtailed. They are curtailed because it is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficiently significant countervailing considerations. In other words it is not open to the decision-maker to risk interfering with fundamental rights in the absence of compelling justification. Even the broadest discretion is constrained by the need for there to be countervailing circumstances justifying interference with human rights. The courts will anxiously scrutinise the strength of the countervailing circumstances and the degree of the interference with the human right involved and then apply the test accepted by Bingham MR in Ex p Smith which is not in issue."

Finally I should refer to what was said by Lord Hope of Craighead in Ex p. Launder [1997] 3 AER 961, 988:

"It is often said that, while the convention [sc. the ECHR] may influence the common law, it does not bind the executive. This view was reflected in the observation by Bingham MR in R v Ministry of Defence, ex p Smith [1996] QB 517 at 558 that exercising an administrative discretion is not of itself a ground for impugning that exercise. That is so; but the whole context of the dialogue between the Secretary of State and the respondent in this case was the risk of an interference with the respondent's human rights. That in itself is a ground for subjecting the decisions to the most anxious scrutiny, in accordance with the principles laid down by this House in Bugdaycay's case, as Bingham MR also recognised in R v Ministry of Defence, ex p Smith [1996] QB 517 at 554."

19. With respect this learning shows that in a case involving human rights the second approach which I outlined at paragraph 16 as to the intensity of review is generally to be followed, leaving aside incorporation of the Convention; but that approach and the basic Wednesbury rule are by no means hermetically sealed one from the other. There is, rather, what may be called a sliding scale of review; the graver the impact of the decision in question upon the individual affected by it, the more substantial the justification that will be required. It is in the nature of the human condition that cases where, objectively, the individual is most gravely affected will be those where what we have come to call his fundamental rights are or are said to be put in jeopardy. In the present case, whether or not the Convention is under consideration, any reasonable person will at once recognise the right to family life, exemplified in the right of the parties to a genuine marriage to cohabit without any undue interference, as being in the nature of a fundamental right (I prefer the expression fundamental freedom.)

20. If, then, a deeper level of scrutiny is applied to the case because this fundamental right or freedom is engaged, what is the result? Miss Webber was at pains to submit that on the facts the appellant complies (and did so at the time of the Secretary of State's decisions) with all the provisions of the immigration rule which governs applications to enter the United Kingdom on grounds of marriage to a person settled here (House of Commons Paper 395, paragraph 281), save for possession of an entry clearance. Those provisions include requirements to the effect that the parties to the marriage have access to accommodation, and will be able to maintain themselves, without recourse to public funds. An entry clearance is issued or refused by a British official - the entry clearance officer - upon application made to him by the intending immigrant in the latter's country of origin; and its purpose is to see that checks are carried out, before the immigrant leaves for the UK, as to his or her compliance with the relevant immigration rules. But, submits Miss Webber, it is shown on information now available that this appellant so complies; thus no legitimate purpose would be served by compelling him to return to Pakistan merely to demonstrate facts already known to be true. Further, she says that given the time it would likely take before the entry clearance officer would decide his case were the appellant to be returned to Pakistan, his job here would be jeopardised and in all probability lost, his wife would be driven to rely on public funds, and so his capacity to establish the substantive matters required to be shown by paragraph 281 of the Rules, though they are today well established, would, as it were, be gravely jeopardised for tomorrow; and that is irrational and unfair. Miss Webber claims to find certain parallels in the decision of Jackson J in Ex p. Hashim (unreported: transcript CO 2052/99, 12 June 2000), to which I will make further reference shortly.

21. Miss Webber also submits that the decision letter of 29 September 1999 falls to be impugned (at any rate if an enhanced standard of review is adopted) because it omits reference to three important matters, and it is not to be assumed that the Secretary of State had regard to them. The first is the presence of the appellant's wife's own family members, parents and siblings, in this country: relationships with them are in their own right an important dimension of family life. The second and third are directly connected with Miss Webber's argument as to the barrenness of requiring the appellant to be returned to Pakistan merely to fulfil the entry clearance requirement. She says that nowhere in the letter of 29 September is it recognised that the appellant fulfilled the substantive conditions of the rule governing entry on marriage grounds; nor is there any reference to the likely effects of removing him on his ability thereafter to demonstrate compliance with those selfsame conditions.

22. As regards the first of these points, relating to the appellant's wife's family members, I would accept the submission of Miss Giovanetti for the Secretary of State to the effect that the decision letter of 29 September was expressly couched as it was so as to respond specifically to the amended judicial review grounds, which made no reference to such a complaint. It had, however, been referred to in the letter of 18 November 1998 from the appellant's solicitors, which pre-dated the amendment to the grounds by about three weeks. I find it wholly impossible to conclude that the Secretary of State did not bear in mind this dimension to the case.

23. The points concerning the entry clearance requirement and the other terms of the immigration rule engage, in my judgment, somewhat different considerations. The Secretary of State did not decide to return the appellant to Pakistan so that the entry clearance officer might conduct appropriate enquiries as to his compliance or otherwise with the substantive requirements of paragraph 281 of the Immigration Rules. The appellant has never been a candidate under paragraph 281: that is to say, he has never applied in Pakistan to be allowed to come here on marriage grounds. The Secretary of State proposes to remove him because he is (following his failed asylum appeal) an admitted illegal entrant. He takes the view that this is a course of action dictated by the need to maintain firm and fair immigration control. Miss Giovanetti pointed to a passage in the judgment of Buxton LJ in Ex p. Ahmed, Ahmed and Barrow (unreported, Court of Appeal transcript 21 January 2000, paragraph 64):

"... it is almost always inapposite to claim that one decision under general policy is unnecessary for the maintenance of that policy. That may be arguably so in the one case, but it would not be so if that view were taken more generally and it would be unfair to other applicants to take that view in this case but not in others. Those latter arguments to a large extent spread over to such arguments as still are made in respect of irrationality or disproportionality in purely domestic law terms."

This reasoning is with deference quite compressed, but within it there is in my view to be found an important truth which bears generally on cases such as this. Firm immigration control requires consistency of treatment between one aspiring immigrant and another. If the established rule is to the effect - as it is - that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin.

24. Miss Webber made to assault the application of this approach to her client's case by reference to the decision of Jackson J in Ex p. Hashim which I have already mentioned in passing. That also was a marriage case in which the applicant sought to remain although he had not obtained an entry clearance; however (I would suppose unusually) it was expressly accepted for the Home Office that the applicant in fact fulfilled all the substantive requirements of the relevant rule and the Treasury Solicitor was prepared to write to the entry clearance officer in Malaysia stating as much. In the present case by contrast Miss Giovanetti does not accept on behalf of the Secretary of State that the appellant fulfils all the rule's substantive requirements: maybe he does, but that has not been verified to the satisfaction of the Home Office.

25. But there is a deeper point about Jackson J's decision. At paragraph 36 of his judgment he cited Ex p. Ahmed [1999] IAR 22, another marriage case, in which the Court of Appeal held that DP3/96 was not in conflict with Art. 8 of the European Convention. In particular, he set out a passage from the judgment of Lord Woolf MR at 30:

"In relation to this category of person, the Secretary of State has to take into account that he must not be seen to be giving encouragement to the breach of the immigration rules. He also has to have regard for the need to be fair to those who comply with the immigration rules who wait their turn to come to this country lawfully."

Then at paragraph 37 Jackson J continued:

"Of course I accept this statement of principle, but I do not see how it assists the respondents in the present case. The other applicants who are waiting in the queue in Kuala Lumpur will not be prejudiced in any way, if the requirement for entry clearance waived in the case of this applicant. Indeed, the queue will be shortened by a very small fraction. Those other applicants have good reason to be in a queue. In each case the entry clearance officer will have to make enquiries before deciding whether to grant or refuse entry clearance. The present applicant, however, is in an exceptional category. No enquiries are necessary; the grant of entry clearance is a foregone conclusion."

26. I think with respect that this reasoning is flawed. No matter that the immigrant in the individual case, having arrived here without the required entry clearance, may be able to show he would have been entitled to one, or even (as was the case in Hashim) that the Home Office actually accepts that he meets the rule's substantive requirements; it is simply unfair that he should not have to wait in the queue like everyone else. At least it is unfair unless he can demonstrate some exceptional circumstance which reasonably justifies his jumping the queue. Here, the Secretary of State found no such exceptional circumstance. In my judgment that was an entirely reasonable conclusion. Accordingly, applying the standards of judicial review appropriate as a matter of common law to cases involving fundamental freedoms, I would conclude that the Secretary of State's decision is not vitiated by any error of law.

27. There remains the third approach: direct application of the Convention rights, now that we are considering the case after 2 October 2000 when these rights joined the corpus of domestic law. This engages the first of the two particular issues which I identified at the outset of this judgment. Miss Webber submits that this court should judge the decision of the Secretary of State, as it was most lately given in the letter of 29 September 1999, directly by reference to its conformity or otherwise with Art. 8 ECHR: that is, we should treat the Convention rights as having been incorporated into domestic law vis-a-vis this decision, although the decision pre-dated the Convention's statutory incorporation on 2 October 2000 by all but a year. At first I understood her to submit that this was the result of s.7(1)(b) of the Human Rights Act 1998, read with s.22(4). The former provides:

"7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by s.6(1) [sc. acting incompatibly with a Convention right] may -

...

(b) rely on the Convention right or rights concerned in any legal proceedings..."

S.22(4) provides:

"Paragraph (b) of ss.(1) of s.7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section."

Put this way, the submission would in my judgment have no force whatever: there are, simply, no extant proceedings brought by a public authority to which the limited retrospective effect given by these provisions of the 1998 Act might apply.

28. However, Miss Webber's argument was in fact more subtle than this; and I should say at this stage that Miss Giovanetti for the Secretary of State accepted it as correct. The submission was put as follows. Although this judicial review challenge is in form directed against past decisions of the Secretary of State culminating in the letter of 29 September 1999, in truth the court is or should be considering the legality of the action which will or would be taken in the future by the Secretary of State to put that past decision into effect. The appellant has not yet been removed from this country; manifestly, if in due course he is so removed, that will post-date the incorporation into our law of the Convention rights. Thus although the court is in form reviewing a decision taken before 2 October 2000, it is in substance reviewing the legality of an act which the Secretary of State will (if he is permitted) do or make after 2 October. Miss Webber pressed the Strasbourg authority of Nasri v France (1995) 21 EHRR 458. In that case both the Commission (paragraph 49, p.466) and the Court (paragraph 34, p.473) approached the question before them on the basis that what they had to decide was whether the future enforcement of an anterior order to deport the applicant would constitute a breach of Article 3 of the Convention. So Miss Webber submits that the court is obliged to decide upon the legality of the Secretary of State's intended action, not yet carried out, pursuant to his decision of 29 September 1999.

29. Notwithstanding the concession made on behalf of the Secretary of State, for my part I do not accept this argument. Where, as here, the court is required to review the legality of an administrative decision already made it is generally no part of its duty to go further and review also (as a distinct exercise) the legality of the decision-maker's carrying the decision into effect at some future date. Any other view would submit the court's public law jurisdiction to undesirable and possibly insupportable distortions. In any given case (within and without the immigration field) there may be many reasons why a public decision-maker might not carry into execution a decision which he has earlier announced; or he might give effect to it subject to modifications or qualifications. It cannot be for the court, faced with a judicial review only of the earlier decision, in some way to police the considerations which might or might not impel the decision-maker to give effect to his decision. The court in its judicial review jurisdiction is not generally concerned to give advisory opinions as to how public authorities ought to act; although - and this is an important reservation - there may be circumstances when it is its duty to do so. But the present case is no such instance, and it is to be borne in mind that the court's primary role is historic: that is, to review the legality of decisions already arrived at.

30. But I recognise that in the present context this conclusion may produce an artificial state of affairs. We cannot in reality tolerate a position in which the court says one thing about the legality of a decision taken before 2 October 2000, while (notionally at least) reserving a potentially different riposte in relation to the decision's implementation after 2 October. The answer, as so often with the common law, is a pragmatic one. By definition the case will involve fundamental rights or freedoms, recognised as such here and in Strasbourg. The more intrusive mode of supervision - the second approach which I have earlier described - which is apt by our domestic law to the review of decisions affecting fundamental freedoms will, in my judgment, in broad terms and in most instances suffice also at least as the beginning of a proper touchstone for review when the Convention is directly in play. It will of course fall to be tailored and adapted as the courts confront disparate situations in which, by force of s.2 of the Act of 1998, they are obliged to take account of the Strasbourg jurisprudence; I have in mind in particular the application in cases concerning freedom of expression of a test based on "pressing social need" where the question is whether an interference with the right is justified under Art. 10(2). There will be occasions when the court's duty is to be more muscular than has been its habit; but at every turn its decisions will form part of a continuum with what the common law has already said.

31. In the present case, I see no scope for any different conclusion, were the court to be engaged in the Convention's direct application, from the result arrived at through the second approach to review which I have already described by reference to Smith, Saville, and Launder. I think it not without significance that in Abdulaziz & ors v UK (1985) 7 EHRR 471 (which was concerned with differential treatment between men and women specified in the UK Immigration Rules relating to applications to enter for or on account of marriage) the European Court of Human Rights said this (paragraph 67):

"The Court recalls that, although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective `respect' for family life. However, especially as far as those positive obligations are concerned, the notion of `respect' is not clear cut: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals."

And paragraph 68:

"The duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country."

I certainly accept (as Miss Webber submitted) that the "margin of appreciation" as that term is deployed in the Strasbourg cases, is apt to connote a self-denying ordinance adopted by an international court precisely because it is an international court, and is based upon the conception that the national authorities are in the first instance best placed to decide how the Convention rights should be measured and distributed in their jurisdiction. But the observations made in these paragraphs from Abdulaziz are plainly not merely concerned with the quality of the Strasbourg court's powers of review, intrusive or otherwise. As it seems to me they also engage with the true interpretation of Art. 8. In summary, the court expressed the view (as I read the judgment) that the State owes no duty generally to give effect to a couple's choice of place of residence, and it will be very much up to the State to strike the balance between the requirements of immigration control and the immigrant's freedom to choose how and where he will enjoy his Art. 8 rights. I think this is entirely unsurprising. If I were applying Art. 8 of the Convention directly in this case, I would hold that there was no breach of Art. 8(1) perpetrated by the Secretary of State whose decision has by no means compelled the appellant and his wife to live apart. He was entitled to conclude that it would be reasonable for her, and the children, to accompany him to Pakistan.

32. I turn lastly to the second important issue which I identified at the outset. Miss Webber submitted that this court was in as good, or effectively as good, a position as was the Secretary of State to decide whether Art. 8 ECHR was fulfilled in this case. I assume she meant that we could decide, as readily as the Secretary of State, whether the applicant's removal would constitute a denial of or disrespect for family life under Article 8(1), or was not justified by the conditions specified in Article 8(2).

33. This submission seems to me to engage a question of some constitutional significance. Much of the challenge presented by the enactment of the 1998 Act consists in the search for a principled measure of scrutiny which will be loyal to the Convention rights, but loyal also to the legitimate claims of democratic power. In this case Miss Webber's submission comes close to the proposition that the court should stand in the shoes of the Secretary of State and re-take the decision in the case on its merits. In fairness, when tested, she disavowed such a proposition. But in that case her submission is without principle: the courts are in as good a position as the Secretary of State to decide; but they must not decide as if they were his surrogate. This antithesis at the same time commends but deprecates the imposition by the courts of their own views of the merits of the case in hand. It is of no practical assistance and lacks intellectual coherence. The Human Rights Act 1998 does not authorise the judges to stand in the shoes of Parliament's delegates, who are decision-makers given their responsibilities by the democratic arm of the state. The arrogation of such a power to the judges would usurp those functions of government which are controlled and distributed by powers whose authority is derived from the ballot-box. It follows that there must be a principled distance between the court's adjudication in a case such as this, and the Secretary of State's decision, based on his perception of the case's merits. For present purposes that principled distance is to be found in the approach I have taken to the scope of judicial review in this case, built on what the common law has already done in Smith, Launder, and Lord Saville. For the future, when the court is indeed applying the Convention as municipal law, we shall no doubt develop a jurisprudence in which a margin of discretion (as I would call it) is allowed to the statutory decision-maker; but in the case of those rights where the Convention permits interference with the right where that is justified by reference to strict criteria (Arts. 8 - 11, paragraph 2 in each case) its length will no doubt be confined by the rigour of those criteria in light of the relevant Strasbourg case-law, and the gravity of the proposed interference as it is perceived here. But that is for the future.

34. I would dismiss this appeal.

Lord Justice May:

35. I agree.

The Master of the Rolls

Human Rights

36. This appeal involves the review of a decision reached by the Secretary of State before the Human Rights Act 1998 came into effect. The Act is now in force. Difficult and important questions of principle arise as to the correct approach to conducting a judicial review of the decision in those circumstances. They have been explored by Laws L.J. who has explained how he considers that they should be resolved. I do not dissent from his conclusions. I consider, however, that on the facts of this case the Court should approach the decision of the Secretary of State as if the Act had been in force when he reached it. This is because he stated when giving that decision that he had had regard to Article 8 of the European Convention on Human Rights and that he did not consider that his decision was in breach of that Article. If this conclusion was erroneous, it must follow that the decision was flawed and should be quashed. How, then, should the Court approach the issue of whether the Secretary of State's decision contravened Article 8 of the Convention?

37. Laws L.J. has referred to statements of Lord Bingham MR in Ex p. Smith [1996] QB 517 at 554; Lord Woolf MR in R v Lord Saville ex p. A [1999] 4 AER 860 at 872 and Lord Hope of Craighead in Ex p. Launder [1997] 3 AER 961 at 998. These all addressed the question of the approach to the reviews of executive discretion in circumstances where human rights were at stake but where the Minister was not required as a matter of domestic law to comply with the Convention. They support the application of three principles to that situation.

(1) Even where human rights were at stake, the role of the Court was supervisory. The Court would only intervene where the decision fell outside the range of responses open to a reasonable decision-maker.

(2) In conducting a review of a decision affecting human rights, the Court would subject the decision to the most anxious scrutiny.

(3) Where the decision interfered with human rights, the Court would require substantial justification for the interference in order to be satisfied that the response fell within the range of responses open to a reasonable decision-maker. The more substantial the interference, the more that was required to justify it.

38. I consider that the first principle remains applicable were the Court reviews an executive decision which is required to comply with the Convention as a matter of law. The Court does not substitute its own decision for that of the executive. It reviews the decision of the executive to see whether it was permitted by law - in this instance the Human Rights Act 1998. In performing this exercise the Court has to bear in mind that, just as individual States enjoy a margin of appreciation which permits them to respond, within the law, in a manner that is not uniform, so there will often be an area of discretion permitted to the executive of a country before a response can be demonstrated to infringe the Convention. In this context I would refer to a passage in the speech of Lord Hope in R v DPP Ex p. Kebeline [1994] 4 AER 801 at 844:

"By conceding a margin of appreciation to each national system, the court has recognised that the Convention, as a living system, does not need to be applied uniformly by all States but may vary in its

application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality.

In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible

with the Convention. This point is well made in Human Rights Law and Practice (1999) p.74, para 3.21, of which Lord Lester of Herne Hill QC and Mr David Pannick QC are the general editors, where the area in which these choices may arise is conveniently and appropriately described as the `discretionary area of judgment'. It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection."

39. As to the second principle to be derived from the authorities referred to above, that principle also remains applicable where the Convention is directly in play. The decision must be subjected to the most anxious scrutiny. It is the third principle that requires modification where a decision is reviewed that was required, pursuant to the 1998 Act, to comply with the Convention. In such circumstances the Court can no longer uphold the decision on the general ground that there was `substantial justification' for interference with humans rights. Interference with human rights can only be justified to the extent permitted by the Convention itself. Some Articles of the Convention brook no interference with the rights enshrined within them. Other Articles qualify the rights, or permit interference with them. Thus Articles 8, 9, 10 and 11 contain second paragraphs which permit interference with rights in accordance with the law and insofar as necessary in a democratic society in the interests of specified legitimate aims.

40. When anxiously scrutinising an executive decision that interferes with human rights, the Court will ask the question, applying an objective test, whether the decision-maker could reasonably have concluded that the interference was necessary to achieve one or more of the legitimate aims recognised by the Convention. When considering the test of necessity in the relevant context, the Court must take into account the European jurisprudence in accordance with Section 2 of the 1998 Act.

41. The Appellant in the present case contends that the decision of the Secretary of State violated Article 8 of the Convention. That Article provides:

Right to Respect for Private and Family Life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

42. The Appellant accepts that the decision of the Secretary of State was taken in the interests of immigration control, which control is imposed in the interests of legitimate aims set out in the second paragraph of Article 8. He challenges, however, the necessity in his case for the decision taken on the ground that it was disproportionate to the aim of preserving the integrity of immigration control. That challenge requires consideration of the relevant European jurisprudence.

EUROPEAN JURISPRUDENCE

43. Laws L.J. has already referred to passages in Abdulaziz and Ors v U.K. That case involved decisions in relation to three married couples. In each case the wife was permanently and lawfully resident in the United Kingdom with the right to remain indefinitely. In each case the husband had been refused the right to remain in the United Kingdom. The United Kingdom Government contended that there was no obstacle to the couples living together respectively in Portugal, the Philippines and Turkey, the countries of origin of the husbands. In each case the couples contended that, while this was true as a matter of law, the proposed removals from the United Kingdom would involve serious practical difficulties.

44. The European Court of Human Rights made the following observation at p.497:

Moreover, the Court cannot ignore that the present case is concerned not only with family life but also with immigration and that, as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory.

45. The Court went on to attach significance to the fact that, at the time of each marriage, the wife had been aware that the husband was unlikely to be granted leave to remain in the United Kingdom.

46. In these circumstances the Court held that there was no `lack of respect' for family life and, hence, no breach of Article 8 taken alone.

47. Poku v United Kingdom (1996) 22 EHRR CD 94 involved an application to the Commission in respect of a decision to deport Ama Poku, a citizen of Ghana, who had overstayed her leave to remain. She was joined in her application to the Commission by six members of her rather complex extended family, all of whom had a right to reside in the United Kingdom. These included her second husband, her three children, one of whom, Michael, was by a previous marriage, and Sarah, a daughter of her second husband by a previous marriage. They all complained that the deportation of Ama Poku would interfere with their right to their family and private life under Article 8. The arguments of the applicants and the reaction of the Commission appear in the following passages from the report:

The applicants emphasise that they are all British citizens or have a permanent right to reside in the United Kingdom, save Ama Poku. Previous cases relied on by the Government involved the situation where neither parent had the right to remain and were being deported. Further, it is not reasonable to expect the applicants to continue their family life in Ghana since the older children are well settled into the educational system; Michael will lose regular contact with his father; Samuel Adjei will lose his legal residence rights in the United Kingdom and also lose contact with Sarah, his daughter by a previous marriage.

The Commission recalls according to its established case law that, while Article 8 of the Convention does not in itself guarantee a right to enter or remain in a particular country, issues may arise where a person is excluded, or removed from a country where his close relatives reside or have the right to reside (see, e.g. No.7816/77, Dec. 19.5.77, D.R.9, p.219; No. 9088/80, Dec. 6.3.82, D.R.28 p.160; and No. 9285/81, Dec. 8.7.82, D.R.29, p.205).

However, the Commission notes that the State's obligation to admit to its territory aliens who are relatives of persons resident there will vary according to the circumstances of the case. The Court has held that Article 8 does not impose a general obligation on States to respect the choice of residence of a married couple or to accept the non-national spouse for settlement in that country (Abdulaziz, Cabales and Balkandali judgment (1985) 7 EHRR 471, para. 68). The Commission considers that this applies to situations where members of a family, other than spouses, are non-nationals. Whether removal or exclusion of a family member from a Contracting States is incompatible with the requirements of Article 8 will depend on a number of factors: the extent to which family life is effectively ruptured, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (e.g. history of breaches of immigration law) or considerations of public order (e.g. serious or persistent offences) weighing in favour of exclusion (see, e.g. Nos. 9285/81, Dec. 6.7.82, D.R.29 p.205 and 11970/86, Dec. 13.7.87 unpublished)....

As regards her husband, Samuel Adjei and their two children, Jason and Jermaine, the Commission notes that there are no obstacles effectively preventing them from accompanying Ama Poku and establishing their family life in Ghana. The Commission has had regard to the adaptable ages of the children, aged four and one respectively. As regard however Samuel Adjei's relationship with his daughter Sarah by another marriage, the Commission observes that if he decides to accompany Ama Poku, his wife, this will interrupt the frequent and regular contact which he enjoys with Sarah who lives with her mother in the United Kingdom. The Commission recalls however that Samuel Adjei and Ama Poku married in August 1994 when she had already been subject to immigration proceedings and a deportation order had been served. He must accordingly be taken to have been aware of her precarious immigration status and the probable consequential effects on his other family relationships by the enforcement of the deportation order. While his daughter Sarah may also claim that her family life is affected and cannot be said to be in the same position as her father, the Commission considers that her situation also flows from the choice exercised by her father rather from any direct interference by the State with her family relationships....

The Commission finds that there are no elements concerning respect for family or private life which in this case outweigh the valid considerations relating to the proper enforcement of immigration controls. It concludes that the removal does not disclose a lack of respect for the applicants' rights to family or private life as guaranteed by Article 8(1) of the Convention.

48. The Court returned to the issue of the potential conflict between the right to family life and immigration restrictions in Gul v Switzerland (1996) 22 E.C.H.R. 93. That case involved the refusal to permit the 12 year old son of a Turkish couple, living in Switzerland under a resident's permit, to join them in that country. Once again the Court referred to the right of a State, well established under international law to control the entry of non-nationals into its territory. The Judgment continued at p.114:

Moreover, where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory. In order to establish the scope of the State's obligations

49. In approaching the facts the Court considered that its task was to decide whether permitting the son to move to Switzerland was the only way that the family could live together as a unit. The Court decided that although it would not be easy for the parents to return to Turkey, there were `strictly speaking' no obstacles to prevent them from developing family life in Turkey. In those circumstances there was no breach of Article 8(1).

50. These cases fall to be contrasted with a number in which the decision impugned involved the deportation of an alien who had established family life in the respondent State.

51. In Berrehab v The Netherlands (1988) 11 EHRR 322 a Moroccan citizen was refused a residence permit by the Netherlands after his divorce from his Dutch wife. Application was made to the European Court by him and by his small daughter, represented by her mother, alleging breach of Article 8. The Court noted that the father had very close ties with his daughter, and needed to remain in contact with her. The expulsion of the father threatened to break those ties. In those circumstances a proper balance was not achieved between the interests of the Netherlands, which were limited to the `economic well being of the Country' and respect for family life. The expulsion was not `necessary in a democratic society' and there was thus a breach of Article 8 (p.331).

52. In Moustaquim v Belgium (1991) 13 E.H.R.R. 82 the applicant was a Moroccan national who had lived in Belgium since he was a year old. As a juvenile he committed a very large number of criminal offences. After periods of detention and imprisonment he was deported. He complained that this infringed his right to respect for family life under Article 8 of the Convention. The Court observed that at the time of his deportation all the applicant's close relatives (parents and seven brothers and sisters) had been living in Liège for a long while. He himself had lived there with his family, or not far away from them, for about twenty years. His family life was thus `seriously disrupted' by the deportation order. In these circumstances the Court concluded that the deportation was disproportionate to the legitimate aim pursued. Article 8 had been violated.

53. Finally I should refer to the decision of the Court in Beldjoudi v France (1992) 14 EHRR 801. Mr Beldjoudi was born in France in 1950 to parents who had moved to France from Algeria. They, and he, had at that time French nationality, but lost this in 1963 when Algeria became independent. In 1970 he married a French woman. Neither he nor his wife spoke Arabic. His widowed mother and four brothers and sisters lived in France.

54. From 1969 onwards Mr Beldjoudi was convicted and received custodial sentences in relation to a series of serious criminal offences. This led to a deportation order being made against him on the ground that he was a threat to public order. He and his wife complained that this violated his right to respect for family life under Article 8. Both the Commission and the Court agreed. The latter held that there might be real practical or even legal obstacles in the way of his wife accompanying Mr Beldjoudi to Algeria. The interference in question might therefore imperil the unity, or even the very existence of their marriage.

55. From these decisions I have drawn the following conclusions as to the approach of the Commission and the European Court of Human Rights to the potential conflict between the respect for family life and the enforcement of immigration controls:

(1) A State has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations.

(2) Article 8 does not impose on a State any general obligation to respect the choice of residence of a married couple.

(3) Removal or exclusion of one family member from a State where other members of the family are lawfully resident will not necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family.

(4) Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a State if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled.

(5) Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates Article 8.

(6) Whether interference with family rights is justified in the interests of controlling immigration will depend on

(i) the facts of the particular case and

(ii) the circumstances prevailing in the State whose action is impugned.

56. With this European jurisprudence in mind, I turn to the facts of the present case.

THE POLICY OF THE SECRETARY OF STATE

57. Laws L.J. has referred to the guidance given by the Secretary of State in DP/3/96 in relation to the approach to be adopted to deportation of an illegal immigrant who is married to a person settled in the United Kingdom. It is noteworthy that DP/3/96 replaced in 1996 a more liberal policy set out in DP/2/93. The change of policy exemplifies the difficult task faced by the Home Office in balancing the claims of family life against the need to impose immigration controls that are both effective and fair.

58. The appellant has not challenged the Home Secretary's policy, as set out in DP/3/96.

59. Under that policy enforcement action against illegal immigrants in the position of the appellant is the norm in the absence of exceptional factors. The appellant contends that there are such factors in his case and that the Secretary of State has failed to have regard to them.

60. Miss Webber, on behalf of the appellant, has submitted that the assessment of the appellant's circumstances in the decision letter of 29th September 1999 is at fault. That letter concluded that the family unit of Mr Mahmood, his wife and their two small children would not be threatened by Mr Mahmood's deportation for two reasons:

(i) It was open to Mr and Mrs Mahmood and their two small children to establish family life in Pakistan. Alternatively

(ii) It would be open to Mr Mahmood, once he had left the United Kingdom, to apply for permission to join his wife and family in this country in accordance with Paragraph 281 of HC395.

Miss Webber submitted that neither of these options provided a satisfactory recognition of the appellant's right to respect for family life.

RELOCATION IN PAKISTAN

61. The decision letter of 29 September 1999 stated that the appellant's wife `should have been aware that his immigration status was at the least uncertain when they married and she should therefore be prepared to accept the consequences'. The Amended Grounds of Appeal attacked this reasoning on the ground that under the terms of DP/3/96 it is only when enforcement action is commenced that a United Kingdom spouse is fixed with knowledge of her husband's status. I consider this argument unsound. Under DP/3/96 a marriage after commencement of enforcement action will only become relevant to the question of deportation in the most exceptional circumstances. This is not to say that, when considering the impact of a marriage before the commencement of enforcement action, the Secretary of State has to close his eyes to the question of whether or not one spouse was aware that the immigration status of the other was precarious. As the European jurisprudence shows, this is a material consideration.

62. On the facts of the present case the Secretary of State's conclusion that the appellant's wife should have been aware at the time of the marriage that his immigration status was uncertain was rational and relevant.

63. Miss Webber also complained that the Secretary of State failed to have regard to the fact that relocation of the immediate family unit in Pakistan would involve the appellant's wife being deprived of proximity to her own parents, brothers and sisters. This was a material factor, but not one that carried the same weight as the question of whether the appellant, his wife and their children, could continue to live together as a family. I agree with Laws L.J. that it is impossible to conclude that the Secretary of State did not bear in mind this aspect of the case.

64. For these reasons I consider that the Secretary of State reasonably concluded that the possibility of the appellant's immediate family moving together to Pakistan was a viable option and one which meant that deporting the appellant would not violate the respect for family life to which he was entitled under Article 8.

APPLICATION UNDER PARAGRAPH 281 OF HC395

65. Miss Webber gave two reasons for contending that the right of the appellant to apply, from outside the country, for permission to join his wife and family within it did not satisfy the requirement to respect his family life. First she submitted that the appellant, who is currently employed as manager of a service station, may not have a job to come back to if he leaves the country, so that he may not be able to demonstrate that he will be able to support his wife and family without social security assistance. The appellant has been in regular employment ever since receiving a work permit. I note that a letter from his Solicitors to the Immigration Service Enforcement Directorate dated 18th November 1998 avers that the appellant and his wife can demonstrate that they have adequate accommodation because one of her uncles has written a letter saying that accommodation will be available to them indefinitely. If and when the appellant applies for permission for a settlement visa in accordance with Paragraph 281 his application will have to be considered having regard to his rights under Article 8. In these circumstances I do not consider that the possibility that his application may not succeed is any reason for excusing him from the requirement to make an application from outside the Country if he wishes permission to settle here with his wife and family.

66. Miss Webber's second point, which is allied to her first, is that it is unreasonably harsh to require the appellant to give up contact with his wife and young children for however long may be needed to process his application at the British High Commission in Pakistan. I would endorse the comments made by Laws L.J. in relation to Miss Webber's reliance on Ex p. Hashim in this context. At the same time there is obvious force in Miss Webber's argument that it will be harsh if the appellant

is denied contact with his two young children for a lengthy period. I would hope that this consideration will lead to any application that he may make under Paragraph 281 being dealt with with reasonable expedition. I do not consider, however, that the Secretary of State's insistence that the appellant should comply with the same formal requirements as all other applicants seeking an entry visa to join spouses in this Country is in conflict with Article 8.

67. In summary, having subjected the decision of the Secretary of State to anxious scrutiny, I find that there were reasonable grounds for his conclusion that deportation of the appellant is necessary in the interests of an orderly and fair control of immigration and that his right to respect for his family life was not violated. For these reasons I agree that this appeal should be dismissed.

ORDER:

1. Appeal dismissed.

2. Leave to appeal to the House of Lords refused.

3. Community Legal Services (Costs) Regs 2000.

(This order does not form part of approved judgment)


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