29 November 2000		1
Times Law Reports

 

QUEEN'S BENCH DIVISION

 

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

 

Before Mr Justice Gage.

Judgment October 24, 2000.

 

Asylum - asylum-seeker's removal while family remains - breach of right to family life

 

Disproportionate to remove asylum-seeker while family remains

 

It would be a breach of an unsuccessful asylum-seeker's right to family life to remove him from the United Kingdom while his wife and children remained, and it would be disproportionate to do so on the ground that he had criminal convictions in the United Kingdom.

 

Mr Justice Gage so held in the Queen's Bench Division when dismissing an application by R for judicial review of the decision of the Secretary of State for the Home Department, communicated in a letter of June 12, 2000, confirming the claimant's removal from the United Kingdom to Colombia.

 

Mr James Gillespie for the claimant; Mr Khawar Qureshi for the secretary of state.

 

MR JUSTICE GAGE said that the claimant, a Colombian national, had entered the United Kingdom in 1993 with his common law wife and their two children. They had another child soon after entering the country.

 

Although the claimant had separated from his wife since entering the United Kingdom, he was still on close terms with her and their children, who were now aged 7, 8 and 10.

 

The claimant's asylum application was refused and by 1995 he had exhausted all avenues of appeal. In 1998 he was refused exceptional leave to remain.

 

The claimant's wife had also made an unsuccessful asylum application in her own right, and her application for leave to remain was outstanding.

 

In 1999 the claimant was convicted of grievous bodily harm, possession of drugs, and drink driving, and received a prison sentence of 18 months. On his release from prison the secretary of state confirmed his decision to remove him to Colombia.

 

The claimant challenged that decision arguing, among other things, that if he were returned it would breach his right to family life under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

 

In his Lordship's judgment, if the claimant were removed and his wife was allowed to stay, there would be a serious risk of a breach of the claimant's article 8 rights. To remove the claimant because of his criminal convictions would be disproportionate.

 

In the circumstances, his Lordship dismissed the application and accepted an undertaking from the secretary of state not to take any steps to remove the claimant until his wife's application had been determined.

 

 

29 November 2000		2
Times Law Reports

 

Solicitors: Wilson & Co; Treasury Solicitor.