R v Home Secretary, ex parte Isiko

R v Secretary of State for the Home Department, ex parte Isiko

COURT OF APPEAL (CIVIL DIVISION)

[2001] 1 FCR 633; [2001] 1 FLR 930; [2001] FAM LAW 419, [2001] Imm AR 291

HEARING-DATES: 20 December 2000

20 December 2000

CATCHWORDS:

Human rights -- Right to respect for family life -- Immigration -- First and second respondents entering country by means of deceit -- Complicated family network established -- First respondent convicted of rape and sentenced to six years' imprisonment -- Whether it would be an interference with the respondents' right to family life to deport them -- European Convention on Human Rights, art 8.

HEADNOTE:

By means of deception the first and second respondents were separately granted leave to enter the country in 1990 and 1991 respectively. They married in England and had a child in 1993. The first respondent was convicted of rape and sentenced to six years' imprisonment in 1995. The respondents divorced in 1997 and in 1999 the first respondent married a British citizen who had borne his child in 1995. The first respondent was released from prison in 1999. At the time of the first respondent's marriage to his second wife both he and his wife were aware of the intention of the Secretary of State to remove him from the country. The respondents claimed that were they and their child to be deported to Uganda, where they were born, the first respondent would be separated from his wife and their child, as she would not leave the UK because she had a child by a former marriage. Their removal would therefore have adverse effects on a number of family relationships. Both respondents had made asylum applications that were refused and in November 1999 removal directions were made for both respondents that were to take effect in December 1999. The removal orders were made in the light of the Secretary of State's 'Marriage Policy' set out in a document known as DP3/96. That document provided that where persons had married after the commencement of enforcement action against them, removal should normally be enforced. Marriage in itself was not a sufficiently compassionate factor to mitigate against removal, and only in the most exceptional circumstances should removal action be stopped. The respondents applied for judicial review of the decisions to remove them. While Hidden J, who heard the applications, described the immigration history of the parties as deplorable he granted their applications after considering whether there was a pressing need to remove them which was so important that it justified breaking up a complex family network and interfering with the happiness and well being of innocent parties. The Secretary of State appealed arguing that there were a whole series of ingredients which went into striking the balance required by art 8 of the European Convention on Human Rights and the person best equipped to strike that balance was the Secretary of State whilst the task of the court was to see whether he had gone outside legitimate parameters in doing so.

Held -- (1) It was legitimate for a state to have an immigration policy and the mere fact that its implementation would interfere with family life did not render unlawful every such act of implementation. The European Court of Human Rights had recognised that each state had the right to control the entry of non-nationals into its territory and that the elected government was entitled to establish and enforce a general policy which did not offend the principle of proportionality.

(2) Where the court reviewed a decision which was required to comply with the Convention by the Human Rights Act 1998 it should not substitute its own decision for that of the executive. It should review the decision of the executive to see if it was permitted by law. In performing that exercise the court had to bear in mind that there would often be an area of discretion permitted to the executive of a country which needed to be exceeded before an action should be categorised as unlawful. In reviewing a decision of the executive, to see if it complied with the Human Rights Act 1998, the court would not substitute its decision for that of the executive, but decide whether the decision taker had exceeded the discretion given to him. In the area of immigration and deportation, difficult choices had to be made between the rights of the individual and the needs of society and it was appropriate for the courts to recognise that there was an area of judgment within which the judiciary would defer, on democratic grounds, to the considered opinion of the elected body or person whose decision was said to be incompatible with an individual's Convention rights. Where a fundamental right was engaged, the court would insist that that fact was recognised by the decision maker, who was therefore required to demonstrate that his proposed action did not interfere with the individual's rights, or if it did, that there existed considerations which amounted to substantial objective justification for the interference. The graver the impact of the decision in question upon the individuals affected by it, the more substantial the justification that was required. Within the framework of that approach the court could give due deference to the primary decision-maker.

(3) The mere fact that the presence of an individual and his family in the country did not in itself constitute a threat to any of the interests listed in art 8(2) of the Convention did not prevent a decision to enforce a lawful immigration policy. In the present case the Secretary of State had made a decision that he was entitled in law to make. Accordingly the appeal would be allowed.

CASES-REF-TO:

Abdulaziz v UK (1985) 7 EHRR 471, ECt HR.

Aftab v Norway App No 32365/96 (4 May 2000, unreported), ECt HR.

Ajayi v UK App No 27663/95 (20 June 1999, unreported), ECt HR.

B v Secretary of State for the Home Dept [2000] Imm AR 478, CA.

Kadhim v Housing Benefit Board London Borough of Brent [2000] CA Transcript 2271, [2000] All ER (D) 2408.

R (on the application of Mahmood) v Secretary of State for the Home Dept [2000] CA Transcript 2185, [2000] All ER (D) 2191, Times, 9 January 2001.

R v DPP, ex p Kebeline, R v DPP, ex p Rechachi [1999] 4 All ER 801, [1999] 3 WLR 972, HL

R v Immigration Officer, ex p Hashim (12 June 2000, unreported) DC.

R v Lord Saville of Newdigate, ex p A [1999] 4 All ER 860, [2000] 1 WLR 1855, CA.

R v Ministry of Defence, ex p Smith [1996] QB 517, [1996] 1 All ER 257, [1996] 2 WLR 305, CA.

R v Secretary of State for the Home Dept, ex p Ahmed and Patel [1998] INLR 570, CA.

R v Secretary of State for the Home Dept, ex p Dinc [1999] INLR 256, CA.

R v Secretary of State for the Home Dept, ex p Launder [1997] 3 All ER 961, [1997] 1 WLR 839, HL.

INTRODUCTION:

The Secretary of State appealed against the orders of Hidden J made 11 August 2000 whereby he quashed the decisions of the Secretary of State to remove the first and second respondents from the country. The facts are set out in the judgment of the court.

COUNSEL:

John Howell QC and Robin Tam for the appellant; Ian Macdonald QC and Rasib Ghaffar for the respondent.

PANEL: SCHIEMANN LJ, TUCKEY LJ, SIR SWINTON THOMAS

JUDGMENTBY-1: SCHIEMANN LJ

JUDGMENT-1:

SCHIEMANN LJ (This is the judgment of the court): Introduction

1. The appeal raises issues under art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights) (Rome, 4 November 1950; TS 71 (1953); Cmd 8969), para 8 of the Secretary of State for the Home Department's policy guidelines on deportation and removal known as DP 3/96, and the correct approach of courts to a challenge made to an administrative decision when a Convention right is engaged. Since this judgment was in draft another division of this court (The Master of the Rolls, May and Laws LJJ) has pronounced on many of the questions which were argued in front of us -- R (on the application of Mahmood) v Secretary of State for the Home Department [2000] CA Transcript 2185, [2000] All ER (D) 2191, Times, 9 January 2001. The judgments in that case broadly accord with the conclusions which we had reached before we saw them.

2. The respondents to this appeal, Peter Isiko and Susan Isiko, applied for orders of certiorari to quash decisions made by the Secretary of State to remove them from this country dated 9 November, 1999, and 7 January 2000, respectively. On 11 August 2000 Hidden J quashed both decisions. The Secretary of State appeals against those orders.

3. The family, marital and immigration history of the respondents can be summarised as follows. Because of the complexity of the family relationships, the family members are referred to by their first names. Peter and Susan have, at least since 24 May 1992, had no permission under our immigration law to remain in the United Kingdom. At a time when they both knew that the immigration authorities were likely to deport them, they married each other. Since then, they have divorced and Peter has married Wendy, a British citizen, again at a time when they knew that the immigration authorities were likely to deport him. Deporting Peter and Susan to Uganda, where each of them was born, is likely to have the following effects. They and their child Shemy will all go to Uganda. Peter will be separated from Wendy and their daughter Selina; this is because Wendy will not wish to leave the United Kingdom because there is living here Wendy's child by a former husband. Clearly this course of action will probably have adverse effects on a number of family relationships.

The legality of the policy contained in para 8 of DP 3/96

4. Although both the policy and its implementation in the present case preceded the coming into force of the Human Rights Act 1998 there are a number of considerations which make it sensible to treat the present case as though the Act had been in force at all relevant times -- see in this context the judgments in Mahmood's case. The Secretary of State was content that we should do so. In the light of this, and since our conclusion is that what has happened in the present case is compatible with the Convention, we proceed on this basis.

Paragraph 8 of DP 3/96 is in these terms:

'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 the 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 Section 6(2) of the Immigration Act 1971". Marriage cannot therefore in itself be considered a sufficiently compassionate factor to militate against removal. Detailed enquiries in order to ascertain whether the marriage is genuine and subsisting should not normally be undertaken. 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 action be stopped and the person allowed to stay.'

5. The policy overall is concerned with the interplay of immigration and marriage, and para 8 sets out that the policy is that where a person marries after the commencement of enforcement action against him, removal should normally be enforced. In such circumstances, marriage is not regarded as being in itself a sufficiently compassionate factor to mitigate against removal. Only in the most exceptional circumstances should removal action be stopped, and the person allowed to stay. Immigration policy has been delegated by Parliament to the Home Secretary, and many factors will play their part in framing that policy. Amongst those factors will be those contained in art 8(2) of the Convention. That article reads as follows:

'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 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.'

6. We must first consider whether the implementation of the policy contained in para 8 of DP 3/96 will always be unlawful under the 1998 Act when it interferes, as it usually will, with family life. The answer to this is in the negative. The policy as such is lawful. This is rightly accepted by the immigrant.

7. In R v Secretary of State for the Home Department, ex p Ahmed and Patel [1998] INLR 570 at 577 Lord Woolf MR (with whom the other members of the court agreed) said, speaking of the policies contained in DP 3/96:

'Putting on one side the effect of Article 8 of the ECHR, it can be said that in general these policies are not ones which could be open to challenge as being inappropriate in themselves : They are dealing with those who are in this country in circumstances when they have no entitlement to be here. 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. On the other hand they take into account that where a person marries someone who has the right of abode in this country and particularly if they have children, their removal may have extremely adverse consequences not only on the individual against whom enforcement action is to be taken but also their spouses and children.'

8. So far as the Convention is concerned, the jurisprudence makes clear that it is legitimate for a state to have an immigration policy and the mere fact that its implementation will interfere with family life does not render unlawful every such act of implementation. That is clear from a number of the decisions of the European Court of Human Rights.

9. In Abdulaziz v UK (1985) 7 EHRR 471 at 497-498 the Court said:

'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 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 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 entry of non-nationals into its territory.

68. The Court observes that the present proceedings do not relate to immigrants who already had a family which they left behind in another country until they had achieved settled status in the United Kingdom. It was only after becoming settled in the United Kingdom as single persons, that the applicants contracted marriage. 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 a country of their matrimonial residence and to accept the non-national spouses for settlement in that country.'

10. The Court drew attention to the fact that each of the applicants knew at the time of their marriage that their husband's immigration position was precarious.

11. In Ajayi v UK App No 27663/95 (20 June 1999, unreported) the Court specifically considered the policy in DP 2/93, the predecessor of DP 2/96 and expressed in similar terms. The Court said (at p 11):

'Another important consideration will also be whether the marriage, albeit manifestly not one of convenience, was contracted at a time when the parties were aware that the immigration status of one of them was such that the persistence of the marriage within the host state would from the outset be precarious. The Court considers that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national spouse would constitute a violation of art 8.'

12. The Court cited Abdulaziz's case. The Court found that there were no elements concerning respect for family life which in the circumstances of the case outweighed valid considerations relating to the proper enforcement of immigration controls.

13. In Aftab v Norway App No 32365/96 (4 May 2000, unreported) the Court said (at p 5):

'The Court reiterates that it is for the contracting states to maintain public order, in particular by exercising their right as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens. For that purpose they are entitled to order the expulsion of persons convicted of criminal offences.'

And on p 6:

'In the light of the above elements, the Court considers that in concluding that the public interest in the first applicant's expulsion from Norway to Pakistan was preponderant, the authorities of the respondent state acted within their margin of appreciation. The Court finds that the interference with the applicant's right to respect for private and family life was supported by relevant and sufficient reasons, was proportionate for the purposes of art 8(2) and could reasonably be viewed as necessary in a democratic society.'

14. It is clear that the European Court of Human Rights has recognised that many factors play a part in immigration policy, that those factors are likely to differ between one country and another, that the state has the right to control entry of non-nationals into its territory, and that the elected government of the country concerned is entitled to lay down and enforce a general policy which does not offend the principle of proportionality.

The implementation of the policy: the role of the Secretary of State and the courts

15. To say that the policy itself is lawful does not have as a consequence that every act of implementation of the policy is inevitably lawful. That again is common ground. Cases can arise where deportation would be a disproportionate response to the breach of immigration control -- see, for instance, B v Secretary of State for the Home Department [2000] Imm AR 478 a decision of this court.

16. There is however a dispute between the parties as to the proper approach of this court when considering the lawfulness of a decision taken by the Secretary of State in the course of implementing the policy.

(A) THE PARTIES' SUBMISSIONS

17. Mr John Howell QC, appearing for the appellant Home Secretary, submitted that the general approach of the judgments in B's case should not be followed, and that, since this was based on a concession or assumption it was not binding on us. He submitted that in B's case it may have been overlooked that the courts may not be as well placed as the Secretary of State to consider the weight to be given on wider grounds to the prevention of disorder and crime when they are considering the deportation of those who have committed serious offences. That was recognised, he submitted, by the Court of Appeal in R v Secretary of State for the Home Department, ex p Dinc [1999] INLR 256 and is reflected in Parliament's decision to entrust the final decision on deportation in cases involving the deportation of convicted criminals who have served their sentence not to the court but to the Secretary of State.

18. Ex p Dinc was a case, decided before B's case, where this court (Stuart-Smith, Henry and Robert Walker LJJ) allowed an appeal from Sedley J. Henry LJ, with whom the other two Lords Justices agreed, pointed out that the Secretary of State was 'better placed to take a wider policy-based view on the key question as to whether removal could be justified as necessary in the interest of a democratic society'.

19. Mr Howell submitted that this applied to a number of situations where the Convention itself saw a tension between the rights of the individual and the interests of the larger community. Thus he pointed out by way of example that under art 1 of the First Protocol it was provided that no one should be deprived of his possessions except in the public interest and subject to conditions provided by law but that this provision did not in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest. This, he submitted, required there to be a reasonable relationship of proportionality between the means employed and the aims sought to be realised. The Convention will examine whether the means chosen could be regarded as reasonable and suited to achieving the legitimate aim being pursued, regard being had to the need to strike a fair balance. It does not consider whether deprivation is in its judgment the best solution for dealing with the problem among those available. The essence of his case was that there was a whole series of ingredients which go into striking the balance which art 8 requires to be struck and the person best equipped to strike that balance in principle was the Secretary of State and the task of the court was to see whether in so doing he had gone outside legitimate perimeters. He pointed out that the guidance contained in documents such as DP3 was itself the result of a balancing exercise carried out by the Secretary of State.

20. He submitted that the function of the court was to form a supervisory judgment on the legality of any decision or action of the Secretary of State. The question for the court was not what it might do in the circumstances if it had been entrusted with the Secretary of State's responsibilities: it was whether a decision or action of the Secretary of State which was impugned was incompatible with Convention rights. In making any such assessment, the nature of the right, interests and judgments involved must be borne in mind. He submitted that in the discretionary area referred to by Lord Hope of Craighead in R v DPP, ex p Kebeline, R v DPP, ex p Rechachi [1999] 4 All ER 801 at 844, [1999] 3 WLR 972 at 993-994 in a passage which we shall shortly cite, the judgment involved in immigration control and deportation was assigned unambiguously by Parliament to the Secretary of State. This was because he was in a far better position to make the policy judgment involved, for which he was democratically accountable, and to assess the weight to be given to them in striking the required balance in any particular case than the court.

21. Mr Ian Macdonald QC, appearing for the immigrant, while he accepted the approach of Lord Hope in Ex p Kebeline, relied in particular on passages in the judgments of this court in B's case which we will shortly identify, and submitted before us what he had successfully submitted below, namely, that when a challenge is made to a decision on human rights grounds the court must examine the facts of each case that comes before it, consider the merits of the competing submissions, balance the compassionate circumstances against the public interest involved, and, while giving what he sometimes called 'a degree of respect' and sometimes called 'due deference' to the primary decision maker, must reach its own conclusion in every case as to where the balance falls. If there is an appeal then the appellate court must carry out exactly the same exercise as the judge of first instance. The court, Mr Macdonald submits, is in just as good a position to make a judgment as the original decision maker. He submits that once an interference with family rights is shown then the applicant's human rights must be upheld unless the Secretary of State can show that the interference is justified. He submits that it is for the Secretary of State to bring the relevant material which has influenced him in making the policy and in coming to the individual decision to the attention of the court. On the facts of this case, as Mr Macdonald puts it, the balance falls on the side of the fence of the applicants.

(B) DISCUSSION ON THE PROPER APPROACH BY THE COURT

22. In B's case the appellant, a citizen of Italy, had been brought up in and had lived in the United Kingdom for over 35 years. He had been convicted of offences of indecent assault on both his daughter and his son. The Secretary of State concluded that he should be deported. The facts of the case were unusual in that the appellant had lived in this country since he was seven years old and the whole of his family lived here. He had visited Italy only twice in the past 20 years.

23. Sedley LJ said ([2000] Imm AR 478 at 482):

'17. . . . [The test of proportionality] In essence amounts to this: a measure which interferes with a Community or human right must not only be authorised by law but must correspond to a pressing social need and go no further than is strictly necessary in a pluralistic society to achieve its permitted purpose; or, more shortly, must be appropriate and necessary to its legitimate aim :

18. It follows that among the issues of law for this court in a case such as the present is the question whether deportation constitutes a proportionate response to the appellant's offending. Being a question of law, it has to be answered afresh, even if reaching an answer involves taking a much closer look than we are accustomed to at the merits. I would turn first to the factual basis of these before returning to the important question of how much deference is due to the Immigration Appeal Tribunal's appraisal of them.'

24. He then quoted parts of the well known passage from the speech of Lord Hope in Ex p Kebiline to which we have already referred:

'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.' (See [1999] 4 All ER 801 at 844, [1999] 3 WLR 972 at 993-994.)

25. The case is currently under appeal to the House of Lords. It was a case where the Secretary of State refused to grant a failed asylum seeker from Turkey exceptional leave to remain. He alleged that there was a grave risk of torture should he be sent back. The Secretary of State disagreed. This court held that the question for the court was whether the material before the court compelled a different conclusion from that arrived at by the Secretary of State. The court answered that question in the negative while leaving open the question whether the court itself would have come to the same conclusion.

26. Sedley LJ said in B's case ([2000] Imm AR 478 at 484 (para 25)):

'Simon Brown LJ pointed out [in Turgut] that on the coming into force of the Human Rights Act 1998 "the threshold of irrationality will have to be lowered" in relation to Convention rights, but that even before that time arrived the court, at least in the case before it, was "hardly less well placed than the Secretary of State himself to evaluate the risk" in the light of the relevant materials.'

There were in that case some 1,500 pages of material before the court. Sedley LJ continued (at 484-486):

'26. In the present case much the same is true. The Home Secretary's decision is superseded in its entirety by the Tribunal's. The Tribunal's decision includes (a) findings of primary fact derived chiefly from oral evidence, (b) inferences of fact, (c) propositions of law and (d) reasoning leading to its conclusions. The first of these elements must be treated with the respect always accorded to findings of primary fact from oral testimony. The second can readily be scrutinised and evaluated. The third and fourth are matters entirely open on appeal. It is to be noted that in the present case, in contrast with many cases decided by the Tribunal, little if anything turns on the conditions obtaining in Sicily or elsewhere in Italy. If it were otherwise -- if, that is, the Tribunal's fund of knowledge about conditions elsewhere in the world had been drawn upon -- this court would have expected to defer to at least that much of the decision save to the extent that it could be shown to be wrong.

27. But once we have taken the primary facts from the Tribunal this is a case in which we are as well placed as that Tribunal to decide what to make of them. Moreover, the Tribunal has in my view got the law wrong in a potentially important respect: for reasons set out earlier in this judgment article 8 of the European Convention is not superfluous once EU law has been considered. Interference with free movement is one thing; interference with family and private life is another. Even where, as here, both arise from the same deportation they enhance the private interests against which public policy is to be set and to which deportation must be a proportionate response response . . .

36. I have no doubt that the Home Secretary's view that deportation was nevertheless merited was legitimately open to him: even the additional factor of near-lifelong residence here would not necessarily have lead this court to intervene on traditional public law grounds. But our public law, for reasons I have explained, now has to accommodate and give effect to the requirements of EU law and, through EU law, of the European Convention. It means making up our own minds about the proportionality of the public law measure -- not simply deciding whether the Home Secretary's or the Tribunal's view of it is lawful and rational.'

B's case was an appeal from a decision of the Immigration Appeal Tribunal which dismissed an appeal by an applicant against a decision of the Secretary of State to deport him. In that case there was agreement between the parties as to the law which had to be applied. Thus Sedley LJ said ([2000] Imm AR 478 at 480 (para 6))

'It is common ground that, since the duty of the Immigration Appeal Tribunal is to allow an appeal if it considers that the Home Secretary's discretion ought to have been differently exercised, the Tribunal's decision has the status of a first instance decision replacing that of the Home Secretary. It is also common ground -- and this is a matter of considerable significance -- that among the questions of law which may arise on further appeal to this court is the question whether to deport infringes the principle of proportionality.'

Simon Brown LJ said (at 488 (para 47)):

'It was common ground before us that proportionality involves a question of law and that, on a statutory appeal of this nature, the court is required to form its own view on whether the test is satisfied, although, of course, in doing so it will give such deference to a Tribunal's decision as appropriately recognises their advantage in having heard the evidence . . . It would not be proper for us to say that we disagree with the Tribunal's decision on proportionality but that, since there is clearly room for two views and their view can not be stigmatised as irrational, we can not interfere.'

27. That measure of agreement between the parties in relation to that case, is, in our judgment, of importance.

28. Since submissions were made to us in the present case judgments have been delivered in Mahmood's case, a decision of the Master of the Rolls, May LJ and Laws LJ, in which, so far as one can judge from the report of the judgments which we have seen, B's case was not cited.

29. The approach of this court in Mahmood's case was arguably marginally different from that adopted by consent in B's case. The first judgment was delivered by Laws LJ. He said:

'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 of the Convention 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 art 8(1), or was not justified by the conditions specified in art 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 of 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, para 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.'

May LJ simply said 'I agree'. The Master of the Rolls said:

'37. Laws LJ has referred to statements of Lord Bingham MR in R v Ministry of Defence, ex p Smith [1996] QB 517 at 554, [1996] 1 All ER 257 at 263; Lord Woolf in R v Lord Saville of Newdigate, ex p A [1999] 4 All ER 860 at 872, [2000] 1 WLR 1855 at 1867 and Lord Hope of Craighead in R v Secretary of State for the Home Dept, ex p Launder [1997] 3 All ER 961 at 998, [1997] 1 WLR 839 at 866. 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 where 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. [ He then cited the passage in the speech of Lord Hope in Ex p Kebeline which we have already cited and continued]:

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 human 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 arts 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 s 2 of the 1998 Act.'

Having considered a number of cases including Abdulaziz's case he continued:

'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 the right under international law to control the entry of non-nationals into its territory, subject always to 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 art 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even when 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 the 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 art 8. (6) Whether interference with family rights is justified in the interests of immigration will depend on (i) the facts of the particular case and (ii) the circumstances prevailing in the state whose action is impugned.'

He concluded:

'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.'

30. In our respectful judgment the approach in Mahmood's case is the correct approach in these cases. It is not entirely clear whether, read as a whole, the judgments in B's case are at variance with it, particularly since there is no indication that Sedley LJ disagreed with the approach of Lord Hope in Ex p Kebeline. If there is a difference between them then we consider that we are at liberty to follow the approach in Mahmood's case even if, as may be the case, the court in Mahmood's case, was not referred to the judgments in B's case. That is because the court in B's case proceeded on the basis of a proposition of law which was not the subject of consideration by that court. In such circumstances a later court is not bound by it -- see Kadhim v Housing Benefit Board London Borough of Brent [2000] CA Transcript 2271, [2000] All ER (D) 2408 the judgment of this court (Schiemann, Buxton LJJ, Jacob J), 20 December 2000.

31. In our judgment the position is as follows. (1) Where the court reviews a decision which is required to comply with the Convention by the 1998 Act it does not substitute its own decision for that of the executive. It reviews the decision of the executive to see if it was permitted by law -- in this instance the 1998 Act. 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 which is not uniform, so there will often be an area of discretion permitted to the executive of a country which needs to be exceeded before an action must be categorised as unlawful. 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 cases involving immigration policies and the rights to family life, 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 decision is said to be incompatible -- see Mahmood's case (para 38). (2) Where, as here, a fundamental right is engaged the court will, applying the law as it was established prior to the coming into force of the 1998 Act, insist that this fact be respected by the decision maker, who is 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 graver the impact of the decision in question upon the individuals affected by it, the more substantial the justification that will be required -- Mahmood's case (para 19). (3) This more intrusive mode of supervision will in broad terms and in most instances suffice as the beginning of a proper touchstone for review when the Convention is in play -- Mahmood's case (para 30). (4) Within the framework of the approach outlined above the court can give the due deference to the primary decision maker which Mr Macdonald accepts that it should give. In the framework suggested by him the concept is too vague to be of any practical use as a judicial tool.

The facts of the present case

32. We have already summarised them but it may be useful to set them out more fully in the form of a chronology.

26.08.56 Peter Isiko (Peter) born in Uganda.

15.05.60 Peter's second wife, Wendy, born in the United Kingdom.

03.08.67 Susan Isiko (Susan) born in Uganda.

23.09.87 Susan arrives in the United Kingdom as a visitor.

23.12.87 Susan granted leave to remain as a visitor until 23.09.88.

25.02.88 Samuel Watkins ('Sam'), the son of Wendy and her then husband born in the UK.

15.04.88 Susan applies for asylum.

18.12.90 Peter by deception granted leave to enter as a student until 31.10.91.

01.03.91 Susan's claim for asylum refused.

05.03.91 Susan lodges appeal against refusal of asylum.

1991. Peter applies for an extension of his student visa.

November 1991 Susan returns to Uganda

December 1991 Peter meets Wendy and starts relationship with her.

12.12.91 Susan, by deception granted entry clearance to join Peter in the UK.

24.05.92 Peter and Susan served with illegal entry papers.

03.08.92 Susan's asylum appeal heard by Special Adjudicator.

12.08.92 Susan's asylum appeal dismissed.

14.08.92 Peter and Susan marry.

21.10.92 Immigration Appeal Tribunal hear Susan's appeal against decision of the Special Adjudicator.

30.10.92 IAT remit case for hearing de novo.

12.01.93 Peter and Susan apply for asylum.

27.08.93 Special Adjudicator dismisses remitted appeal.

13.09.93 Shemy is born to Peter and Susan.

11.01.94 Wendy and Sam's father divorce.

21.07.94 Peter arrested and charged with rape.

16.06.95 Selina born to Peter and Wendy.

08.11.95 Peter convicted of rape and sentenced to serve six years imprisonment.

29.12.96 Susan travelled to Amsterdam. Her 1993 asylum claim lapses. Susan is refused entry and returned to UK by the Dutch authorities. She makes further asylum application.

10.10.97 Peter and Susan divorced.

05.11.97 Peter's asylum claim refused.

10.11.97 Susan's 1996 asylum claim refused. Susan refused leave to enter.

10.07.98 Special Adjudicator dismisses Peter's asylum appeal.

07.08.98 Special Adjudicator dismisses Susan's asylum appeal in respect of 1996 claim.

31.03.99 Peter marries Wendy whilst in prison.

11.06.99 Peter applies for leave to remain on basis of marriage.

28.10.99 Secretary of State refuses Peter's application on grounds set out in DP 3/96.

01.11.99 Removal directions set for Susan and Shemmy to take effect on 2.12.99.

03.11.99 Removal directions for Peter to take effect on 19.12.99.

05.11.99 Peter released from prison.

33. In a lengthy witness statement made on 25 April 2000, the details of which it is not necessary to repeat, Miss Arnold of the Immigration and Casework Directorate of the Home Office, sets out the reasoning leading to the Secretary of State's conclusions in these cases. She refers to the immigration history of Peter and Susan, described, rightly, by Hidden J as 'deplorable'. Both Peter and Susan gained entry to this country by deception. Since then Peter has been convicted of the very serious criminal offence of rape. Peter knew when he married Wendy, as did Wendy, that the Secretary of State intended to remove him. His asylum claim was a baseless device to postpone his removal. The Secretary of State had considered the compassionate circumstances put forward but in addition to the facts set out above the Secretary of State had to consider the public interest contained in the policy, that public interest being fully explained in the witness statement.

The approach of the judge

34. The judge approached the matter in the way in which he had been invited to on behalf of the applicant, namely, by considering whether there was a pressing need to remove the two applicants which was so important that it justified breaking up a family and applying his own judgment. He said this in para 40.

'Mr Macdonald complains that the only legitimate aim of removal put forward by the Secretary of State : is the need for a firmer, faster and fairer immigration control. It is not spelt out how effecting such a policy translates into one of the legitimate aims in art 8(2) of the Convention. There can not be a pressing need, for example, to remove the two applicants in order to protect the economic wellbeing of the United Kingdom; there can not be a need so pressing that it justifies the breaking up of a complex family network and interfering with the happiness and wellbeing of the innocent parties (see B's case). I regard this argument as a compelling one.'

35. The judge did not have the advantage of the decision in Mahmood's case which had not been promulgated. In that case Laws LJ referred to another marriage case R v Immigration Officer, ex p Hashim (12 June 2000, unreported) an unreported decision by Jackson J at first instance. Jackson J had adopted an approach rather similar to that adopted by Hidden J in the present case and had come to the conclusion that there would be no harm to the enforcement of immigration control if persons who fulfilled all the requisites for the grant of entry clearance were granted permission to enter notwithstanding that they had arrived without entry clearance. Laws LJ said (para 26):

'No matter that the immigrant in the individual case, having arrived here without the required entry clearance, may be able to show : that the Home Office 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 . . . decision is not vitiated by any error of law.'

36. It is clear that the mere fact that the presence of an individual and his family in this country will not in itself constitute a threat to one of the interests enumerated in art 8(2) of the Convention does not prevent a decision to enforce a lawful immigration policy which applies in the individual's case from being lawful.

37. It is clear from Mahmood's case that, even in cases where art 8 is in play, the function of the court is to see whether the decision taker has exceeded the discretion given to him. To this question, perfectly understandably, the judge did not apply his mind.

38. Having considered the public policy considerations set out in the witness statement put in on behalf of the Home Secretary and the compassionate circumstances relating not only to the applicants for judicial review but also to their various children we conclude that the decision which the Home Secretary made was one which he was in law entitled to make. In those circumstance we allow the appeal.

DISPOSITION:

Appeal allowed.

SOLICITORS:

Treasury Solicitor; Rees Wood & Terry.