R v. Home Sec'y, ex p. Gangadeen

R v SECRETARY OF STATE FOR HOME DEPARTMENT EX PARTE GANGADEEN; R v SECRETARY OF STATE FOR HOME DEPARTMENT EX PARTE KHAN

Court of Appeal (Civil Division)

[1998] 1 FLR 762, [1998] Fam Law 248, [1998] 2 FCR 96, [1998] Imm AR 106

HEARING-DATES: 21 November 1997

21 November 1997

CATCHWORDS:

Immigration -- Removal of appellant from UK -- Where decision affecting child's interests, whether incumbent on Home Secretary to give preference to best interests of that child as paramount consideration -- Proper approach to Deportation Policy Guidance -- Status of ECHR, Art 8 in English law and impact on interpretation of policy

HEADNOTE:

Mrs Gangadeen was an illegal entrant subject to removal and the mother of a 7-year-old boy. The child's father was a British citizen. After their relationship had ended, the mother married another British citizen and the child lived with the mother and her new husband. The child maintained regular and frequent contact with his father. The mother was declared an illegal immigrant in 1993. The Home Secretary refused to grant the mother leave to remain and proceeded with her removal to India. The mother's application for judicial review was dismissed in 1996 and from that decision she appealed. Mr Khan was a Pakistani citizen and was an overstayer subject to removal. In 1989 he married a British citizen and their daughter was born in the UK. In 1992 Mr Khan was given leave to enter the country for 12 months as the husband of a British citizen but subsequent applications for leave to remain were unsuccessful. In 1993 Mr Khan and his wife separated. He had limited and intermittent contact with his daughter after the separation. In 1996 Mr Khan's application for judicial review of the Home Secretary's order for deportation was refused. Mr Khan appealed.

Held -- dismissing the appeals -- the Home Secretary was obliged to act in accordance with his declared policy and if he departed from it, it was incumbent upon him to explain why. He had to conduct a balancing exercise in which the considerations of the interests of the child and immigration policy and control must both be weighed. The essential purpose of the policy was to provide guidance so that it was wrong to treat it as a rigid instruction. The court should be very slow to interfere with the Home Secretary's decision not to grant what was essentially a concession on extra-statutory grounds. It was right for the court to confer a broad measure of discretion on the Home Secretary in relation to the application of the policy so long as he had regard to that policy and made a decision which was not inherently irrational. The domestic court would give great weight to the judgments, particularly recent judgments, of the European Court of Human Rights, in cases where the facts were similar. The Home Secretary was fully in line with the approach of the European Court of Human Rights and the European Commission to Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as a straightforward balancing exercise, in which the scales start even, and where the weight to be given to the considerations on each side of the balance is to be assessed according to the individual circumstances of the case. European jurisprudence does not support the notion that paramountcy was to be given to the interests of the child. In the first case, the child's interests were fully considered and all the evidence taken into account by officers at the Home Office. The mother had a very chequered immigration history, and allowing for the wide measure of appreciation accorded to the Secretary of State in conformity with decisions of the European Court of Human Rights, there was no possible basis on which the court could interfere with his decision in the exercise of his discretion as to where the balance lay. In the second case, the history of contact between the father and his daughter spoke for itself and it was impossible to interfere with the Home Secretary's discretion in deciding where the balance lay, given his wide margin of appreciation.

NOTES:

Statutory provision considered

Immigration Act 1971, Sch 2, para 1(3)

CASES-REF-TO:

Abdulaziz v UK (1985) 7 EHRR 471, ECHR

Asiedu v Secretary of State for the Home Department [1988] Imm AR 186, CA

Berrehab v Netherlands (1988) 11 EHRR 322, ECHR

Camelot Group plc v Centaur Communications Ltd (1997) The Times, October 30

Hendricks v Netherlands (1982) 5 EHRR 223, ECHR

Keegan v Ireland (1994) Series A No 290

Kroon v Netherlands 19 EHRR 263, ECHR

Minister of Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353

Poku v UK (1996) EHRR CD 94, ECHR

R v Ministry of Defence ex parte Smith [1996] QB 517, CA

R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696, [1991] 2 WLR 588, [1991] 1 All ER 720, HL

R v Secretary of State for the Home Department ex parte Egueye -- Gbemre (Lexis transcript, 9 November 1995), CA

R v Secretary of State for the Home Department ex parte Iye [1994] Imm AR 63, CA

R v Secretary of State for the Home Department ex parte McInerney (unreported) 27 July 1995, CA

R v Secretary of State for the Home Department and the Parole Board ex parte Norney [1995] Admin LR 861, QBD

R v Secretary of State for the Home Department ex parte Ozminnos (1994) Imm AR 287

R v Secretary of State for the Home Department ex parte Urmaza (1996) COD 479

S (Minors: Access), Re [1990] 2 FLR 166, CA

Sorabjee v UK (unreported) 23 October 1995

Tavita v Minister of Immigration [1994] 2 NZLR 257

COUNSEL:

Nicholas Blake QC and Asoka Dias for the appellants Gangadeen; David Pannick QC and Mark Shaw for the respondent in the Gangadeen case; Peter Duffy QC and Ramby De Mello for the appellant Khan; Steven Kovats for the respondent in the Khan case

PANEL: Hirst, Swinton Thomas LJJ, Sir Brian Neill

JUDGMENTBY-1: HIRST LJ

JUDGMENT-1:

HIRST LJ: Introduction

The court had before it two appeals, each of which concerns the legality of a decision by the Secretary of State for the Home Department to remove the appellant from the UK.

These two cases have been listed together because they each raise an important question of general principle, namely whether in a case where such a decision affects the interests of a child of the prospective deportee, it is incumbent on the Home Secretary to give preference to the best interests of that child as the paramount consideration in the process, having regard to the principles laid down in Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and the policy announced by the Home Office in the Deportation Policy Guidance ('the policy') known as DP/2/93, which states in its introduction as follows:

'The attached instruction provides guidance on cases involving marriage and children, and takes into account the effect of the European Convention on Human Rights. Article 8 of the Convention guarantees the right to respect for family life and recent European court cases have demonstrated that, however unmeritorious the applicant's immigration history, the Court is strongly disposed to find a breach of Article 8 where the effect of an immigration decision is to separate an applicant from his/her spouse or child.'

The answer to this question hinges in part upon the resolution of other issues of principle, as to the proper legal approach which should be adopted to the policy, and as to the status in English law of the ECHR.

In Gangadeen and Jurawan the first appellant Mrs Philomena Gangadeen is an illegal entrant subject to removal and is the mother of the second appellant Daniel Jurawan who is now aged 7. Mrs Gangadeen was born in India in 1960, and is an Indian citizen. She first entered the UK in 1983 on 6 months' leave to enter, and following unsuccessful applications for leave to remain, was declared an illegal entrant in 1993. In 1988 she met Daniel's father, Mr Robert Jurawan, who is a British citizen and who was at all material times married to another woman. Shortly after Daniel's birth their relationship ended, and in April 1992 she married Mr Samuel Gangadeen, a British citizen who was divorced from his former wife. Daniel has lived here all his life, resides with his mother and Mr Gangadeen, with whom he has a close relationship, and has attended school here since 1993. He also retains a close relationship with his father, and other paternal relations, and contact between them has been and remains frequent and regular. It is Daniel's interest and welfare which is the main focus of their appeal, which is against the dismissal by Harrison J on 15 November 1996 of their application for judicial review of a decision by the Home Secretary dated 31 August 1995 whereby he maintained earlier decisions to refuse to grant Mrs Gangadeen leave to remain, and to proceed with her removal to India, it being plain that if she is deported Daniel will accompany her.

In Khan the appellant Mr Khalid Khan, who is an overstayer subject to removal, was born in October 1962 and is a Pakistani citizen. In 1989 he married his wife Nasreen Khan, who is a British citizen, in Pakistan, and in May 1990 their daughter Saira, whose interest and welfare is the main focus of Mr Khan's appeal, was born in the UK. In August 1992 Mr Khan arrived in this country and was given leave to enter for 12 months as the husband of a British citizen, but subsequent applications for leave to remain have proved unsuccessful. In July 1993 Mr Khan and his wife separated, and they have lived apart ever since. Mrs Khan has care of Saira, and Mr Khan has enjoyed limited and intermittent contact with her pursuant to court orders. Mr Khan's appeal is against the order of Turner J dated 8 October 1996, refusing his application for judicial review of the Home Secretary's order for deportation made against him on 31 January 1996, together with the decision to confirm that order which was communicated to him on 28 March 1996. That decision is reported at [1997] Imm AR 89.

In this judgment I shall first consider the main issues of principle. I shall then review each of the cases individually against a much more detailed background of the relevant immigration and family history.

The main issues of principle

Art 8 of the ECHR provides as follows:

'(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.'

The policy (which has subsequently been superseded by DP/3 4 and 5/96 with effect from 14 March 1996) contains the following relevant provisions, which I refer to hereafter by reference to the numbered paragraphs, following the introduction which I have already quoted:

'SECTION A: MARRIAGE POLICY

(1) All deportation and illegal entry cases must be considered on their individual merits. Where enforcement action is under consideration or has been initiated and the offender is married a judgment will need to be reached on the weight to be attached to the marriage as a compassionate factor.

(2) As a general rule deportation action under section 3(5)(a) or section 3(5)(b) (in non-criminal cases) or illegal entry action should not be initiated or pursued where the subject has a genuine and subsisting marriage to a person settled in the United Kingdom if:

(a) the marriage pre-dates enforcement action; and

(b) the marriage has lasted 2 years or more or, in the case of a common-law relationship (see paragraph 7 below), the couple have cohabited for 2 years or more. It does not automatically follow, however, that deportation/removal is the right course where this test is not met. Full account should be taken of any evidence that a strong relationship has existed for more than 2 years (this will include any reasons why the couple did not marry earlier, eg waiting for a divorce to be finalised, saving to buy their own home); or

(c) the settled spouse has lived here from an early age or it is otherwise unreasonable to expect him/her to accompany on removal; or

(d) one or more children of the marriage has the right of abode in the United Kingdom . . .

Divorced or separated parents

(5) The fact that the European Court is strongly disposed to find a breach of Article 8 of the European Convention where the effect of an immigration decision is to separate a parent from his/her child is also relevant in cases involving divorced or separated parents. Where one parent is settled in the United Kingdom and the removal of the other would result in deprivation of frequent and regular access currently enjoyed by either parent, section 3(5)(a), 3(5)(b) (in non-criminal cases) or illegal entry action should be abandoned. Reliance cannot be placed on the argument that the United Kingdom settled parent can travel abroad to continue access.

(6) Cases will arise where a person to be deported/removed has custody of a child with the right of abode in the United Kingdom by a previous partner who is no longer in contact with the child. Here, the crucial question is whether it is reasonable for the child to accompany the parent to live abroad. The factors to be considered are:

(a) the age of the child (in most cases a pre-school age child could reasonably be expected to adapt to life abroad);

(b) the strength of the child's ties with the United Kingdom, including other United Kingdom resident family members;

(d) the standard of living (including educational facilities) in the country to which the parent is being removed.

Common-law relationships

(7) Where there is conclusive evidence that a genuine and subsisting common-law relationship akin to marriage exists, it should be considered under this instruction as if it were a marriage. The onus rests firmly on the individual who seeks to benefit to provide conclusive evidence of the nature of the relationship.'

It is common ground that the Home Secretary is in ordinary circumstances obliged to act in accordance with his declared policy, and that, if he departs from it, it is incumbent upon him to explain why. It is also common ground that he must conduct a balancing exercise in which the considerations of the interests of the child on the one hand, and the considerations of immigration policy and control on the other, must be weighed. Where the two sides part company is as to the scope of the Home Secretary's discretion in applying the policy, as to the status in English law of the ECHR and its impact of the ECHR on the construction of the policy and, in the light of the answers to those questions, as to the degree of primacy if any which must be accorded to the interests of the child in the balancing exercise.

In this section of my judgment I propose first to marshall the rival arguments in broad outline, and then to proceed to cite the relevant authorities, to consider the submissions founded upon them, and to give my conclusions in the light of the totality of the material before us.

On behalf of the appellants, Mr Nicholas Blake QC on behalf of Mrs Gangadeen and Mr Jurawan, and Mr Peter Duffy QC on behalf of Mr Khan, submit that the best interests of the child must be the paramount consideration, having regard particularly to the principle laid down in Art 8, and also to a number of decisions of the Human Rights Court at Strasbourg which have strongly emphasised the importance of the interests of the child. They also rely upon Art 3 of the UN Convention on the Rights of the Child 1989, which provides that 'in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration'.

They submit that Art 8 as interpreted by the decisions of the Human Rights Court, together with the UN Convention, should directly inform the Home Secretary as to the proper mode of application of the policy.

In relation to the extent of the Home Secretary's discretion in his application of the policy, they stress that Sch 2, para 1(3) to the Immigration Act 1971 provides that in the exercise of their functions under the Act immigration officers 'shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State . . .'; consequently the policy should be treated as a formal instruction, not only to immigration officers but also to officials in the Home Office who are required to apply the policy, with very little scope for discretion on the Home Secretary's part.

On behalf of the Secretary of State, Mr David Pannick QC submitted that the policy was to be treated as no more than guidance, seeing that it was concerned with an extra-statutory concession whereby people are allowed to remain who would otherwise be subject to removal; it was therefore appropriate to confer a broad measure of discretion on the Home Secretary in relation to its application, and so long as he had regard to the policy, and made a reasonable decision, the court should not intervene.

So far as the ECHR is concerned, he submitted that, seeing that it is not as yet part of our domestic law, it was not open to the appellants to rely on the jurisprudence of the Human Rights Court as guidance on the proper application of the policy, which should be treated as a correct application of the UK's international obligations.

Finally Mr Pannick submitted that in any event there was no breach of Art 8 (even if applicable), since Art 8 required no more than a fair and even balance between competing considerations, with no special preference to be accorded to family life or the interests of the child.

Turning now to consideration of the authorities, it is convenient to group them under three main headings viz:

(i) the scope of the Home Secretary's discretion under the policy;

(ii) the status of the ECHR in English law and its impact if any on the interpretation of the policy;

(iii) the paramountcy to be accorded the interests of the child.

I shall deal with these issues in that order.

(i) The scope of the Home Secretary's discretion under the policy

Mr Pannick relied on a number of English authorities in support of his submission that the Home Secretary had a broad measure of discretion, particularly in view of the extra-statutory character of the policy.

In Asiedu v Secretary of State for the Home Department [1988] Imm AR 186 (May, Balcombe and Woolf LJJ) the court was considering the exercise by the Home Secretary of his extra-statutory discretion to review an immigration case pursuant to representations by an MP.

Woolf LJ (as he then was) stated as follows:

'. . . it is important to bear in mind that the application for judicial review, as argued before this court, was seeking judicial review in relation to letters written by the Secretary of State in response to investigations initiated as a result of the intervention of Members of Parliament. I do not go so far as to say that judicial review will never be available in respect of letters of that sort, but I venture to suggest that it would be rare that judicial review will be available. This is purely an extra-statutory function which has been performed by the Secretary of State and in my view it is not in the interest of immigrants that this court should seek to approach such letters in the same way as we seek to approach formal decisions of adjudicators or tribunals. The Secretary of State, when reviewing a case in his discretion as a result of the intervention of a Member of Parliament, is not acting as an appellate body in relation to the decision of an immigration official and he should not, in my view, be treated as so doing.'

In R v Secretary of State for the Home Department ex parte Ozminnos [1994] Imm AR 287, the exercise of the Home Secretary's discretion under the policy was directly in issue. Auld J (as he then was) held that it was a matter for the Home Secretary to construe his own policy and apply it, subject always to the power of the court to intervene on Wednesbury grounds, tested by the approach indicated by the well known decision of the House of Lords in R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696 that the ECHR has at least some role as a relevant factor in the taking of a decision by the Home Secretary.

In R v Secretary of State for the Home Department ex parte Iye [1994] Imm AR 63 the Home Secretary's exercise of his discretion under the policy was also in issue, and Glidewell LJ, with whom Scott LJ agreed, stated the principles as follows at 66-67:

'The effect of the guidance as I see it is this: having embarked upon the exercise of deciding whether to exercise his discretion because of compassionate grounds, the Home Secretary's officers are required by him to act within the general terms of the guidance he gives. If it became clear a particular officer had disregarded the guidance, that would be a valid reason for saying the decision was wrongly made. But if it appears that the guidance has been followed, the question then arises whether it can be said that following the guidance no sensible Home Secretary or officer on his behalf could properly ever arrive at the decision which has been made.

. . .

It is quite clear in my view that although the letter is expressed in different terms, the substance is what he was required to consider by the guidance note. Do the compassionate circumstances in this case outweigh the valid reasons for not allowing this man to remain in the United Kingdom? So one comes to the question: can it be said that the decision in this case is one which no sensible Home Secretary or his officer could come to in all the circumstances?'

In R v Secretary of State for the Home Department ex parte Egueye -- Gbemre (Russell and Thorpe LJJ and Sir Ralph Gibson, Lexis transcript 9 November 1995, CA) the court adopted the same approach, and approved statements at first instance by Popplewell J who, having cited the policy, said that it was for the Home Secretary to decide whether the circumstances of the case made an exception to what is the general rule, and that the decision was for him and not for the court, having regard to the immigration history of the deportee, his marriage, and the compassionate factors relating to his wife and child.

The final authority in this part of the case is R v Secretary of State for the Home Department ex parte Urmaza [1996] COD 479, in which once again the application of the Home Secretary's discretion under the policy was in issue. Sedley J stated at the outset of his judgment that the case 'raises a novel question about the extent to which departmental policy is amenable to judicial review'. Having cited a number of cases in other fields, Sedley J stated that:

'. . . these legal controls upon the deployment of discretion and the implementation of policy demonstrate that the courts do not limit themselves to a bare rationality test . . . such cases, as authority demonstrates, are not limited to irrationality; they include cases where an international policy has been disregarded or misapplied by one or more of a Minister's officials.'

He concluded his review of what he described as 'the modern approach to a departmental policy document' by saying that:

'. . . it follows that those cases in which the challenge has been predicated upon pure irrationality (for example Ozminnos (above)) are illustrative but not exhaustive of the grounds of challenge.'

(I have emphasised the word 'international' in the above quotation because scrutiny of the court transcript shows that this was a misprint for 'internal'.)

The appellants submitted that Mr Pannick's approach was belied by the policy's own description of itself as an 'instruction', and that this gave it a much more formal status than that portrayed by Mr Pannick, having regard particularly to the provisions of Sch 2, para 1(3) to the Immigration Act 1971 quoted above. They pointed out (rightly) that all the Court of Appeal authorities cited by Mr Pannick other than Asiedu were renewed applications and therefore not binding on us, and they stressed that the facts in all those cases were entirely different. So far as Asiedu itself was concerned, they submitted that it was clearly distinguishable, since the Home Secretary was only responding to an MP's letter. Finally they placed strong reliance on Sedley J's decision in Urmaza, which they submitted reflected the current attitude of the court.

Mr Pannick stressed that the purpose of the policy was, as stated in the introductory paragraph, to provide 'guidance' on cases involving marriage and children, rather than laying down a formal rigid code. He placed strong reliance on the Court of Appeal cases cited above as demonstrating a consistent approach in accordance with his standpoint. So far as Urmaza is concerned, Mr Pannick submitted that to the extent that Sedley J's reasoning conflicted or went beyond that of Auld J in Ozminnos, the latter was to be preferred, and that it would be wrong to enlarge the supervisory role of the court in the manner suggested by the former. He also relied on the Human Rights Court's statement in Abdulaziz (below) that the national court must be accorded a wide margin of appreciation in cases concerned with immigration.

In my judgment the essential purpose of the policy is to provide guidance, as it expressly states, so that it is wrong to treat it as a rigid instruction pursuant to Sch 2, para 1(3) to the 1971 Act: it follows that a similar approach to that adopted by Woolf LJ in Asiedu is appropriate. Consequently I have concluded that Mr Pannick is right in his submission that the court should be very slow to interfere with the Home Secretary's decision not to grant what is essentially a concession on extra-statutory grounds. Moreover, although none of the other Court of Appeal cases are binding on us, they seem to me to provide a body of highly persuasive authority in favour of the approach of Auld J in Ozminnos, rather than that of Sedley J in Urmaza, insofar as the latter may have tended to suggest that the court's role is now more closely supervisory than hitherto.

I therefore accept Mr Pannick's further submission that it is right for the court to confer a broad measure of discretion on the Home Secretary in relation to the application of the policy, so long of course, as he has regard to that policy, and makes a decision which is not inherently irrational; and also bearing in mind that the greater the interference with human rights the more the court will require by way of justification (see eg R v Ministry of Defence ex parte Smith [1996] QB 517 at 554).

(ii) The status of the ECHR in English law and its impact if any on the interpretation of the policy

The appellants submitted that, in considering the lawfulness of an exercise of discretion under the policy, the court should pay close attention to the provisions of Art 8 and the decisions thereunder of the Human Rights Court. The correct approach, they submitted, was exemplified by the judgment of Dyson J in R v Secretary of State for the Home Department and the Parole Board ex parte Norney [1995] Admin LR 861 where he stated at 871 as follows:

'I do not consider that ex parte Brind requires me to ignore the Convention when considering the lawfulness of the exercise of the discretion. I accept that as a general rule, the lawfulness of the exercise of executive discretion is not measured by asking whether it involves an infringement of Convention rights. But where it is clear that the statutory provision which creates the discretion was passed in order to bring the domestic law into line with the Convention, it would in my judgment be perverse to hold that, when considering the lawfulness of the exercise of the discretion, the court must ignore the relevant provisions of the Convention. In any event, there is no conflict on this point between the requirements of the common law and those of the Convention.'

Mr Pannick drew our attention to an obiter dictum of Sir Thomas Bingham MR in R v Secretary of State for the Home Department ex parte McInerney (unreported) 27 July 1995 where he stated in a judgment with which Millett and Schiemann LJJ agreed:

'Our attention was drawn, . . . to Art 8 of the European Convention and, as is apparent, the Secretary of State, in formulating policy DP/2/93, has endeavoured to give effect to his obligations under the Convention. It is of course trite law that the Convention is not part of our law, and therefore, we are unable to rely on any jurisprudence directly emanating from the Court of Justice and must at this stage assume that the Secretary of State's policy is in accordance with the international obligations of the UK.'

Let me say at once that I feel quite sure that Sir Thomas Bingham was not seeking to exclude entirely reference to the jurisprudence of the ECHR: indeed it is noteworthy that only 3 months later in Smith (above) he stated at 558E:

'It is, inevitably, common ground that the United Kingdom's obligation, binding in international law, to respect and secure compliance with this article is not one that is enforceable by domestic courts. The relevance of the Convention in the present context is as background to the complaint of irrationality. The fact that a decision-maker failed to take account of Convention obligations when exercising an administrative discretion is not of itself a ground for impugning that exercise of discretion.'

(See also per Henry LJ at 564.)

A similar approach was adopted by the Court of Appeal in Camelot Group plc v Centaur Communications Ltd (Schiemann, Thorpe and Mummery LJJ (1997) The Times, October 30), which was reported the day after we completed our hearing; this concerned the construction of the Contempt of Court Act 1981, which was enacted to bring our domestic law into line with the ECHR; Schiemann LJ, giving the leading judgment with which Thorpe and Mummery LJJ agreed, stated that the domestic court would give great weight to the judgments, in particular recent judgments, of the Human Rights Court in cases where the facts were similar.

In my judgment these cases exemplify the correct approach.

As already noted the appellants also relied on the UN Convention on the Rights of the Child 1989, from which I have already quoted the relevant passage.

However, in seeking to bring this provision directly into play in the present case they were confronted with the insuperable difficulty that when in 1991 the UK ratified this Convention, such ratification was subject to the following reservation:

'The UK reserves the right to apply such legislation, insofar as it relates to the entry into, stay in and departure from the UK of those who do not have the right under the law of the UK to enter and remain in the UK, and to the acquisition and possession of citizenship, as it may be deemed necessary from time to time.'

This distinguishes the position in the UK from that in, for example, Australia and New Zealand where the UN Convention has been directly applied (Minister of Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 and Tavita v Minister of Immigration (1995) 2 NZLR 257).

(iii) The paramountcy of the interests of the child

The appellants cited a large number of authorities where the Human Rights Court or the Commission have emphasised the importance of family life in the context of Art 8 even where the bonds between parent and child were extremely tenuous (Hendricks v Netherlands (1982) 5 EHRR 223, Keegan v Ireland (1994) Series A No 290, Kroon v Netherlands 19 EHRR 263, Sorabjee v UK (unreported) 23 October 1995 and Berrehab v Netherlands (1988) 11 EHRR 322): but of these I only gain assistance from the last named case, since in none of the others was the balance between the interests of the child on the one hand and immigration policy on the other in issue.

Berrehab was a case where there were very close ties between the father, a Moroccan, who had lawfully lived in the Netherlands for several years, and his daughter Rebecca, with contact over the previous 2 years no less than four times a week for several hours a day. The court, having stated that it made allowance for the margin of appreciation left to the Contracting States said that:

'In this connection, it accepts that the convention does not in principle prohibit the Contracting States from regulating the entry and length of stay of aliens. According to the Court's established case law, however, "necessity" implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.

Having to ascertain whether this latter condition was satisfied in the instant case, the Court observes, firstly, that its function is not to pass judgment on the Dutch immigration and residence policy as such. It has only to examine the interferences complained of, and it must do this not solely from the point of view of immigration and residence, but also with regard to the applicants' mutual interest in continuing their relations. As the Dutch Court of Cassation also noted, the legitimate aim pursued has to be weighed against the seriousness of the interference with the applicants' right to respect for their family life.'

The court proceeded to uphold Mr Berrehab's application under Art 8.

By far the most significant case in this context to my mind is Abdulaziz v UK (1985) 7 EHRR 471, to which I have already briefly referred. In that case the applicants were lawfully and permanently settled in the UK in accordance with the immigration rules in force at the material time, but their husbands were refused permission to remain with or join them there. The case raised a number of issues under the Convention, involving not only Art 8 but also sex discrimination, and the applicants were successful under the latter but not under the former head. On this topic the ratio of the court was as follows:

'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. In particular, in the area now under consideration, the extent of a State's obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved. 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.'

Mr Pannick also drew our attention to the very recent Commission decision in Poku v UK (1996) EHRR CD 94, which involved a large number of Ghanaian applicants, including a 10-year-old boy Michael Fibrace (who, if deported, would have lost contact with his father) and his mother Ama Poku. The Commission stated as follows at 97:

'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, . . . (1985) 7 EHRR 471). 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 State 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 (eg history of breaches of immigration law) or considerations of public order (eg serious or persistent offences) weighing in favour of exclusion.'

They then proceeded at 98 to deal directly with the position of Michael as follows:

'As regards Ama Poku's son Michael and the effect on his relationship with his father, Owen Fybrace, the Commission notes that contact has been somewhat irregular and now appears to have diminished to contact by phone only. The resulting effect on their existing "family life" if he left would accordingly appear to be minimal. While Michael is older than Jason and Hermaine and has been integrated into the United Kingdom school system, the Commission finds no indication of any factor which would effectively prevent him from adapting to life with his family elsewhere.

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.'

In my judgment these three cases demonstrate quite clearly that, in their interpretation of Art 8 in the present context, the Human Rights Court and the Commission approach the problem as a straightforward balancing exercise, in which the scales start even, and where the weight to be given to the considerations on each side of the balance is to be assessed according to the individual circumstances of the case; thus they do not support the notion that paramountcy is to be given to the interests of the child.

The principle underlying all three cases is the same: the difference in their outcome was that in Berrehab the family ties were very strong and the immigration considerations comparatively weak, whereas in the other two cases the opposite applied.

I therefore uphold Mr Pannick's submission that the Home Secretary, in laying down and applying the policy on the basis that the scales start even with no preferences being given to the interests of the child, was fully in line with Art 8 as interpreted in the European jurisprudence.

Gangadeen and Jurawan

Following her arrival in the UK in November 1983, when Mrs Gangadeen was granted 6 months' leave to enter as a visitor, she took up employment as a domestic servant notwithstanding employment being prohibited, and in May 1984 left the UK for Nigeria with the family for whom she worked. Two months later she returned to the UK and was given 3 months' leave to enter as a visitor, with employment again prohibited. Much later, in 1993, she admitted that she had used deception to gain entry on this latter occasion because she intended to enter for employment and not just for a visit. In 1986 she left domestic employment.

Following her marriage to Mr Gangadeen, in July 1982 she sought leave to remain in the UK on the basis of her marriage, but in January/February 1993 Mr Gangadeen wrote to the Immigration Service stating that the marriage was a sham, and instigated various other letters of denunciation. At the end of 1993 both Mr and Mrs Gangadeen were interviewed by the Immigration Service, and Mr Gangadeen confirmed that the couple had only recently begun living together in anticipation of Home Office inquiries. On 16 December 1993 Mrs Gangadeen was declared an illegal immigrant because of the circumstances of her entry into the UK in 1984, but was given temporary admission.

That same month Mr Gangadeen confirmed that his marriage with Mrs Gangadeen had never subsisted and was entered into for immigration purposes, and in February 1994 the Secretary of State decided to remove Mrs Gangadeen to India. In December 1994 Mr Gangadeen again confirmed that his marriage with Mrs Gangadeen was a sham, but in the following month, January 1995, he wrote to the Home Office retracting his earlier statements that the marriage had never genuinely subsisted, and this recantation was confirmed by a statutory declaration dated 17 January 1995.

On 12 April 1995 the Secretary of State confirmed his decision to remove Mrs Gangadeen to India as an illegal immigrant, and following an application on her behalf for reconsideration, this decision was again confirmed on 31 August 1995, leading to the application in November 1995 for leave to move for judicial review.

Prior to the Home Secretary's first decision in February 1994 to remove Mrs Gangadeen to India, a submission was prepared by a Home Office Executive Officer, Mr Darlow, and approved by Mrs McGourty, a Senior Executive Officer, recommending that she should be removed, which was then personally endorsed by a minister.

This process and the subsequent procedure was, as is now common ground, in accordance with the Home Office practice as described by Ms McGourty in her first affidavit as follows:

'At the time [Mrs Gangadeen] was served with notice of removal it was the practice that all initial decisions to remove illegal entrants with a spouse in the UK are to be made by a Home Office minister. Thereafter, the decision could, where new representations are submitted, be reviewed in the light of new facts or circumstances. It very often happens that those faced with removal submit later representations seeking to have the decision reversed. Plainly, those representations must be carefully considered. But, given the volume of cases involved, it would not be practical for an SEO (still less a minister) to look at all fresh representations. The practice is, therefore, for an EO or HEO to decide whether the representations are substantially different from the information already taken into account. If they are, they are referred to an SEO or, in some cases, a minister again. The correct practice was followed at all stages of this case.'

At that stage, although the identity and nationality of Daniel's father were known to the Home Office, there was no evidence presented as to the nature and strength of his relationship with his father and other family members in the UK, and this evidence was only furnished to the Department by the appellant's solicitors on 5 June 1995.

Following the receipt of that evidence and the accompanying representations, Mrs McGourty again considered the papers with recommendations from Mr Darlow and another officer that the decision to remove Mrs Gangadeen should stand, and on 4 August 1995, having considered that material, she decided that removal remained the right course, because the new material and representations did not justify altering the minister's original decision. This decision was communicated by a letter written by Mr Darlow dated 31 August 1995 which most unfortunately contained no reference to Daniel. However, in her affidavit Mrs McGourty testified that before making this decision she had reread all the material and still considered that removal was appropriate, and Mr Darlow in his evidence states categorically that the interests of Daniel were given particularly careful scrutiny.

I shall have to refer to this evidence in more detail shortly; suffice to say for the present that the grounds for the decision were first that Mrs Gangadeen did not qualify at all under para 5 of the policy, which contemplated a stable relationship, whereas she and Mr Jurawan were never married nor had they ever cohabited together; secondly, because Mrs Gangadeen's immigration record as an illegal entrant outweighed the interests of Daniel.

It should be noted that while Mr Darlow was a comparatively recent recruit to the relevant department, Mrs McGourty was the head of the Illegal Entry Section of the Home Office, with very considerable experience of immigration cases of the present kind.

The nub of Mr Blake's argument on his client's behalf is that on the first ground the Home Secretary was wrong both in principle and in fact: wrong in principle, because para 5 did not necessarily contemplate such a stable relationship between the parents as the Home Secretary envisaged; wrong in fact, because on a proper scrutiny of the evidence their relationship was sufficiently stable even on the Home Office's criteria. On the second ground, Mr Blake submitted that, particularly having regard to the manifest shortcomings of Mr Darlow's letter of 31 August 1995, the Home Secretary had in fact disregarded Daniel's interests altogether; and that in any event on a proper balancing exercise, his interests outweighed Mrs Gangadeen's immigration record. He further submitted that the Home Office had in fact based their decision partly on para 6 of the policy, which was plainly irrelevant.

Turning first to the issue of principle which arises on the first question, it is not in dispute that the policy embraces both married and unmarried parents, as indeed is made clear by para 7. However, para 7 itself requires 'conclusive evidence that a genuine and subsisting common-law relationship akin to marriage exists', and para 2(f) requires, in the case of such a common-law relationship, that 'the couple have cohabited for 2 years or more'.

Mr Blake submitted that, notwithstanding these limitations, the policy should be liberally construed in order to comply with the UK's international obligations, and he further submitted that too much emphasis should not be placed on para 2(b) since paras 2(c) and 2(d) provided alternative grounds.

In my judgment, as Mr Pannick submitted, the only route through which Mrs Gangadeen and Mr Jurawan could possibly bring themselves within Section A (which must be construed as a whole) is via paras 2(a) and 7. They lay down the requirements we have to interpret and apply, and paras 2(c) and 2(d), which lay down separate routes, neither of which applies here, are irrelevant. The former two paragraphs specifically stipulate a relationship akin to marriage with cohabitation for 2 years or more in the case of unmarried parents, and in my judgment these are clear and specific requirements not open to flexible interpretation such as Mr Blake seeks. Moreover, in the light of the ECHR authorities cited in the previous section of this judgment (which pay particular regard to the duration and stability of the family relationship), I can see nothing which runs contrary to the general principle set out in those authorities. It follows that I uphold Mr Pannick's standpoint on the question of principle.

So far as the facts are concerned, Mr Darlow testified as follows in his first affidavit:

'The Secretary of State has considered DP/2/93 but does not accept that para 5 of it applies in this case. That paragraph is concerned with the effect of an immigration decision on divorced or separated spouses and parents. It is accepted that [Mrs Gangadeen] and Mr Jurawan have never been married and the Secretary of State does not accept they ever cohabited in a relationship akin to marriage. Certainly, if they ever did cohabit it was for a short time and ceased very soon after [Daniel] was born. It is to be noted that in para 9 of his affidavit Mr Jurawan states that at the time [Mrs Gangadeen] became pregnant he was, and continues to be, married to someone else with whom he has children. He says that he was "committed" to his marriage and the children of it. He also describes [Mrs Gangadeen] as a person with whom he had a "relationship" during marriage akin to an affair. Although the Secretary of State recognises that cohabitation (then or now) is not a sine qua non for family life, it can be one relevant factor when considering the strength of the connections between people. It is also relevant to the strength of a relationship outside wedlock that one party is committed to his marriage and the children thereof. Accordingly, it is not considered that the terms of para 5 apply. The applicants argue that the distinction between divorced and separated spouses and those who never married should not be maintained in this case. However, as appears from the above, the Secretary of State has nevertheless considered whether the applicants' compassionate circumstances should avail them despite the failure of [Mrs Gangadeen] and Mr Jurawan to marry. In relation to the second applicant, particular regard has been paid to the factors listed in para 6 of DP/2/93. As regards paras 2-4 of DP/2/93, it should be noted that these are premised on there being a "genuine and subsisting marriage" which is not accepted here.'

The evidence on this topic is to be found in the affidavits of Mr Jurawan and Mrs Gangadeen.

In his first affidavit Mr Jurawan testified as follows:

'I met Philomena in June 1988 when she and her girlfriend telephoned me in connection with an advertisement my mother had placed in a newsagent's shop for accommodation at 30 Kincardine Gardens Maida Vale London W9 a property owned jointly by me and my parents. Philomena accepted the offer of accommodation and moved in and after approximately 6 months we became very close and intimate relationship developed.

In 1989 Philomena became pregnant but we only realised this some 3-4months into the pregnancy. I was then and continue to be a married person from another relationship with children from that relationship.

After various discussions with Philomena it was decided that we should have the child particularly because of her strong religious beliefs concerning abortion. Philomena is a Catholic. On 3 February 1990 our wonderful son Daniel was born. I was by her side when the child was born.

After Daniel was born I was at that time heavily engaged in work with Verran Milro and did not appear to have a great deal of time to spend with the family. I was also committed to my wife Eva and my children from this relationship.

Philomena wanted to be with her friends and to speak her own language and she therefore moved out of the premises. In May 1991 she found alternative accommodation in Shepherds Bush.'

In his second affidavit, sworn in answer to Mr Darlow's first affidavit which had raised a question concerning the ownership of 30 Kincardine Gardens, Mr Jurawan testified as follows:

'I wish to clarify my address as this has been raised as an issue by Mr Darlow. The fact is that I am joint owner of 30 Kincardine Gardens, Maida Vale W9 3RP with my parents. I maintain a room there for myself (there are four bedrooms) but it is not my main address. I actually live with my wife Eva and my two daughters, Rachel and Rebecca aged 6 and 13, outside London. I do not want to reveal my address because I have never told my wife about Daniel or Philomena and she still doesn't know. Of course, she would be extremely upset if she did find out and my aim has always been to protect her from the truth. My mother, sister and the rest of the family know about this and support me.

So it is incorrect to say that I lived at Kincardine Gardens with my mother and certainly my wife does not live there.'

This evidence was confirmed by Mrs Gangadeen in her affidavit as follows:

'I met Robert when I moved into 30 Kincardine Gardens in Maida Vale. Robert owned the house and had a room there. His mother lived there and Robert had some clothes there. However, it was not his main address. I don't even know where that is. I have a vague idea it is in Barnet. Robert used to stay at Kincardine Gardens sometimes, particularly at weekends. Obviously, while we were having our relationship he stayed over quite often including most weekends. I did know he was married with children and had another house but I accepted that.

Our relationship ended when Daniel was about 1 1/2 years old ie before I started my relationship with Sam.'

Mr Blake candidly recognised the difficulty in which this evidence placed him, and said that the highest he could put it was that there was an intimate relationship for 3 years, that Mrs Gangadeen stayed in a room at a house partly owned by Mr Jurawan, and that he visited her there fairly regularly during the course of the relationship; however he fully recognised that during all this time Mr Jurawan kept another family going, and that the two of them never cohabited at all, let alone for 2 years, and never had a subsisting relationship akin to marriage.

In these circumstances, on this ground alone it seems to me quite clear that they fail to qualify under the requirements of the policy.

So far as the second question is concerned, Mr Blake understandably concentrated on Mr Darlow's unsatisfactory letter, which Mr Pannick did not attempt to defend, but based his case on the evidence of Mr Darlow and Mrs McGourty.

In his first affidavit Mr Darlow testified that, even on the footing that there was a close relationship and high level of contact between Daniel and Mr Jurawan and all Daniel's other relatives both on his father's and his mother's side, it was still not considered that Mrs Gangadeen's removal accompanied by Daniel would amount to a violation of Art 8 of the Convention read as a whole. He then proceeded:

'The Secretary of State recognises that the decision to remove [Mrs Gangadeen] will interfere to some extent with her private and family life and that of [Daniel] if he accompanies her to India. Removal will disrupt such contact as Mr Jurawan, and his mother and sister, have with the applicants and vice-versa. However, the Secretary of State considers such interference as there may be is justified, in all the circumstances of this case, by the need to maintain effective immigration control. It is not disputed that [Mrs Gangadeen] is an illegal entrant who avoided detection for many years and who came to light only when she sought to regularise her position in this country by a marriage which in any event, the Secretary of State believes was entered into for an immigration purpose. The existence of a child born in the UK whose father is a British citizen and the contracting of a marriage to another British citizen should not automatically insulate [Mrs Gangadeen] from removal. Nor should long residence. Otherwise, effective immigration control could be easily circumvented. Those factors may avail an illegal entrant but each case must be judged on the compassionate circumstances particular to it. The Secretary of State has fully considered the effect of [Mrs Gangadeen's] remove on Daniel whom she says will accompany her to India. Daniel is 6 years old, is not a British citizen and has no right of abode in this country. It is considered he is young enough to be able to adapt to life in India with his mother. Although he may be materially disadvantaged there, compared to his position in this country, the Secretary of State does not consider this justifies refraining from removal of [Mrs Gangadeen]. Having weighed the compassionate factors in the case against the necessity to maintain fair, effective and proper immigration control, the Secretary of State continues to believe removal of [Mrs Gangadeen] is the appropriate course. These competing factors have to be balanced. As regards Mr Gangadeen, it has already been explained that the genuineness of the family life he claims to enjoy with [Mrs Gangadeen] is not accepted. This inevitably undermines his links with [Daniel]. Those aspects of Mr Gangadeen's position, in addition to the policy factors described above which would be decisive in any event, help to persuade the Secretary of State that there is no violation of Art 8 in respect of him.'

Mrs McGourty testified that, having seen all the evidence on behalf of the applicants, together with their previous material, she had considered whether her earlier decision ought to be altered, but that she continued to believe that removal was the appropriate course for the reasons set out in Mr Darlow's first affidavit.

In Mr Darlow's second affidavit he reiterated his first, and then stated:

'I am advised by the Treasurer Solicitor that the one aspect of the decision- making process which concerned Sedley J sufficiently to grant leave to move was the application of the policy known as DP/2/93. Sedley J was concerned that the policy might have been applied too rigidly to the circumstances of [Daniel] and that his position had been considered solely by reference to the policy. However, this was not the case. The circumstances of [Daniel] were given particularly careful scrutiny . . . I can confirm that on each occasion when this case had been considered [Daniel's] position has not simply been measured against the criteria of DP/2/93. The respondent did not decide that the policy did not apply and then automatically disregard [Daniel's] interests and reject [Mrs Gangadeen's] claim to stay in the UK. Wider consideration has been given. Because of the rather unusual family circumstances of [Daniel], consideration was given to whether the spirit of the policy indicated that the applicants should be permitted to stay. Substantial weight was given to the interests of [Daniel] in that process.

Mr Blake submitted that the blemish in Mr Darlow's letter was indelible, and that in any event this evidence, even taken at its face value, paid insufficient regard to the closeness of the relationship not only between Daniel and his father but also between Daniel and his other relations, and that if that had been properly evaluated, it must necessarily outweigh considerations on the other side.

Mr Darlow's letter has caused me considerable anxiety, as indeed it did Harrison J. But at the end of the day I am satisfied that we must accept the categorical evidence of Mr Darlow and Mrs McGourty that Daniel's interests were fully considered in the manner they portray, from which it follows that all the evidence on which Mr Blake relies was fully taken into account. On the other side of the scale was Mrs Gangadeen's very chequered immigration history, and, allowing for the wide measure of appreciation accorded to the Secretary of State in conformity with the ECHR decisions to which I have already referred, I can see no possible basis on which this court could properly interfere with his decision in the exercise of his discretion as to where the balance lay.

I should add that in my judgment this very full and detailed evidence amply satisfies the Home Secretary's duty to explain his decision.

So far as para 6 of the policy is concerned, although, as already noted, there is a passing reference to it in Mr Darlow's first affidavit, I am quite satisfied that, as Mr Pannick submitted, this was intended to do no more than indicate that none of the conceivably relevant parts of the policy had been left out of account.

For all these reasons the appeals of Mrs Gangadeen and Daniel fail.

Khan

In June 1993, 3 months or so before the expiry of his 12 months' leave to enter, Mr Khan applied via his representative for indefinite leave to remain on the basis of his marriage; however, immediately after their separation, Mrs Khan telephoned the Home Office and indicated that she did not support his application as the marriage had broken down, and this was confirmed in early August 1993 by her representative.

As a result, in October 1993 the Home Secretary refused leave to remain, on the ground that the couple did not intend to live together permanently. Two weeks later Mr Khan lodged notice of appeal, accompanied by further grounds, but this appeal was dismissed by an adjudicator in June 1994.

In July 1994 he reapplied, but this reapplication was also refused in March 1995, accompanied by a notice of an intention to deport, and Mr Khan's appeal was dismissed by an adjudicator in July 1995. In September 1995 the IAT refused leave to appeal, and on 31 January 1996 the deportation order was signed by the Home Secretary but not served until 28 March 1996.

Meantime on 12 January 1995 his Honour Judge Taylor sitting in the Birmingham County Court ordered that Mr Khan should have contact with Saira for 1 1/2 to 2 hours every 3 weeks, and this was drawn to the adjudicator's attention at his hearing later that year. This order was varied in August 1995 when the judge extended the contact with Saira to a period of 2 hours every 3 weeks, and again in December 1995 when it was further extended to a period of 4 hours every other week. This contact was varied yet again in March 1996 to contact for up to 2 hours every 3 weeks. All these orders for contact were subject to supervision of one kind or another, but the judge commented in August 1995 that there was nothing other than perhaps a lack of understanding, which could easily be put right, to prevent there being a very good relationship between Saira and her father, and eventually it was hoped that it would not be necessary for there to be any kind of supervision, but it had to be done slowly. Contact ceased in December 1996 pending a further hearing which has had to be postponed from August 1997, due to the unavailability of experts and to listing difficulties, but the case is now listed in December 1997.

Mr Khan has an impeccable employment history since he has been in this country, having worked throughout at a salary of £ 450 per month, having never claimed social security benefits, and having dutifully paid his dues to the Child Support Agency.

The basis of the Home Secretary's decision in Mr Khan's case was that he fell outside the scope of the second sentence of para 5 of the policy, since Mr Khan did not enjoy frequent and regular access to Saira: and that in any event his compassionate circumstances did not outweigh the immigration considerations in his case.

The main focus of Mr Duffy's attack was that the Home Secretary's decision was based on a fundamentally erroneous construction of para 5, on the ground that the three sentences of that paragraph comprise three distinct elements, each of which lays down a discrete aspect of policy.

Consequently, in focusing solely on the second sentence (absence of frequent and regular access) the Home Secretary misconstrued and then proceeded to misapply his own policy, which made it incumbent upon him to consider and apply the first sentence of para 5 as a distinct and free-standing ground. This he had failed to do, with the result that the proper course was to quash the present decision and remit the case to the Home Secretary for reconsideration.

For the purpose of considering this argument it will be convenient to quote again para 5 of the policy:

'5. The fact that the European Court is strongly disposed to find a breach of Article 8 of the European Convention where the effect of an immigration decision is to separate a parent from his/her child is also relevant in cases involving divorced or separated parents. Where one parent is settled in the United Kingdom and the removal of the other would result in deprivation of frequent and regular access currently enjoyed by either parent, section 3(5)(a), 3(5)(b) (in non-criminal cases) or illegal entry action should be abandoned. Reliance cannot be placed on the argument that the United Kingdom settled parent can travel abroad to continue access.'

This is a very short point of construction, and in my judgment Mr Duffy's interpretation of para 5 is erroneous. As Mr Pannick rightly submitted, para 5 is to be treated as a composite provision, not as one containing three separate rules. The first sentence is a general statement of the relevance of the interest under Art 8, and the other two sentences state how the Secretary of State will apply it in practice. This, as Mr Pannick rightly submitted, is fully in line with the ECHR approach, as exemplified for instance in Abdulaziz and Poku cited above.

Mr Duffy's second main point is that the Secretary of State got the balance wrong.

The minister's approach was, as has been already noted, essentially based on the irregularity and infrequency of the contact, with the result that the compassionate circumstances did not outweigh the immigration considerations, all relevant factors having been taken into account.

Mr Duffy's first line of attack on this approach, founded on his construction of para 5, was that he might well be entitled to succeed under the first sentence, irrespective of the absence of frequent and regular contact; that argument of course fails once his construction of para 5 is rejected.

His second line of attack was that, even on the Home Secretary's construction, his approach placed too much emphasis on the degree of contact, but I am unable to accept that criticism, since in my judgment that must be the main criterion when considering the parent/child relationship once the child is old enough to communicate and understand (compare Poku).

In the present case the history of the contact between Mr Khan and Saira speaks for itself, and here again, as in the other case, it is in my judgment impossible to interfere with the Home Secretary's discretion in deciding where the balance lay, given his wide margin of appreciation.

Mr Khan's appeal therefore fails also.

Final conclusion

I would therefore dismiss both appeals, while at the same time placing on record my appreciation of the pain which this will inevitably cause to the families involved.

JUDGMENTBY-2: SWINTON THOMAS LJ

JUDGMENT-2:

SWINTON THOMAS LJ: I have read the judgment of Hirst LJ and I agree with it.

The important point of principle that arises in these cases relates to the approach of the Home Secretary to the making of immigration decisions which will result in the separation of a child or children from the parent with whom the child is not living.

In the majority of cases, the child will be living with and cared for by the mother, although the same principles apply if the child is living with the father. In both cases under consideration in these appeals the child was living with and being cared for by the mother, and there was no suggestion that there should be any change in that state of affairs. The problem that arises in these cases will normally, not always, arise when a decision is made to deport a mother and children (Mrs Gangadeen's case) so separating the children from their father, or the decision is made to deport the father (Mr Khan's case) again separating the child from him. It is a material and important consideration in both sets of circumstances that the children will not be parted from their primary carer.

However, that is not by any means the only consideration. To a greater or lesser extent the child will have had some contact with the other parent and that, as is recognised by the Home Office in the Deportation Policy Guidance document is also an important consideration.

Article 8 of the ECHR provides:

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

(2) There should be no interference by a public authority with the exercise of this right except such as is in accordance with 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.'

DP/2/93 of the Deportation Policy Guidance document provides in part:

'Divorced or separated parents

(5) The fact that the European Court is strongly disposed to find the breach of Article 8 of the European Convention where the effect of an immigration decision is to separate a parent from his/her child is also relevant in cases involving divorced or separated parents. Where one parent is settled in the United Kingdom and removal of the other would result in deprivation of frequent and regular access currently enjoyed by either parent, section 3(5)(a), 3(5)(b) (in non-criminal cases) or illegal action should be abandoned. Reliance cannot be placed on the argument that the United Kingdom settled parent can travel abroad to continue access.

(6) Cases will arise where a person to be deported/removed has custody of the child with the right of abode in the United Kingdom by a previous partner who is no longer in contact with the child. Here the crucial question is whether it is reasonable for the child to accompany the parent to live abroad. The factors to be considered are:

. . .

(b) the strength of the child's ties with the United Kingdom, including other United Kingdom resident family members . . .'

For present purposes the important subparagraph is (b), although it must be borne firmly in mind as pointed out by Hirst LJ and stressed by Mr Pannick QC, that the policy is there to provide guidance and is not a rigid instruction, and that paras 5 and 6 apply only in the circumstances referred to in the paragraphs themselves.

In English domestic law the importance of the maintenance of the tie between a child and the parent with whom the child is not living has been stressed in numerous cases, as has the important principle that contact between a child and the parent with whom the child is not living is the right of the child. For example, in Re S (Minors: Access) [1990] 2 FLR 166 Balcombe LJ said at 170:

'The principle is well established not merely that the welfare of the children is the first and paramount consideration, but that access is the right of the child, not of the parent. The child has a right, even though his parents are separated and the child may be living with one and not with the other, to know his other parent.'

These guiding principles have been laid down in the context of s 1(1) of the Children Act 1989, which provides that the interests of the child are paramount. That is not the position in immigration cases where, as the jurisprudence shows, the interests of all parties, including the children, have to be weighed in the balance with immigration policy and other relevant factors, including those matters set out in DP/2/93.

In Berrehab v Netherlands (1988) 11 EHRR 322 the court said at 329:

'The Court likewise does not see cohabitation as a sine qua non of family life between parents and minor children. It was held that the relationship created between the parties by a lawful and genuine marriage such as that contracted by Mr And Mrs Berrehab has to be regarded as "family life".'

And then later at 331:

'It [the Court] accepts that the Convention does not in principle prohibit the Contracting States from regulating the entry and length and stay of aliens. According to the Court's established case law, however, "necessity" implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.'

The importance of the English domestic decisions in the context of Art 8 and the European decisions in immigration cases where children are concerned is that there may be a tendency to focus solely, or largely, on the adult who is to be deported or a risk that that may happen. The adult is likely to be in breach of immigration law. The child will continue to be looked after by the parent with whom the child resides, usually, as I have said, the mother. Accordingly there is a risk that the child will be viewed only as an appendage of the parent. That is the impression that will be given to any reader of Mr Darlow's letter of 31 August, 1995, in Mrs Gangadeen's case, although I accept that the later evidence shows that Daniel's interests were properly considered before the decision was made.

In the field of immigration, particularly decisions relating to deportation, the interests of the child are not, and cannot, be paramount or primary. That this is so is accepted by the European cases, for example Sorabjee v UK (unreported) 23 October 1995, and Abdulaziz v UK (1985) 7 EHRR 471. If it were otherwise, it would be difficult ever to make a deportation decision in relation to a child. However, the interests of the child are of great importance, and must be given separate consideration, including consideration of the child's family ties in this country, and, in the case of an adult in respect of whom a deportation decision is taken, the adult's ties with the child must be taken into account in the balancing exercise. I am satisfied that that was done in both the instant cases.

I agree with the judgment of Hirst LJ on all issues that arise in these appeals. Accordingly I would dismiss both the appeals.

JUDGMENTBY-3: SIR BRIAN NEILL

JUDGMENT-3:

SIR BRIAN NEILL: I agree with both judgments.

DISPOSITION:

Appeals dismissed. No order as to costs. Legal aid taxation of appellants' costs. Application for leave to appeal to House of Lords refused.

SOLICITORS:

Hammersmith Low Centre for the first appellant; JR Jones Cooper for the second appellant; Treasury Solicitor