AB (Jamaica) v Secretary of State for the Home Department

For a good many years before the Human Rights Act 1998 required it, departments of state had sought to ensure that delegated legislation and policies for which they were responsible were consistent with the United Kingdom’s international obligations under (among other treaties) the European Convention on Human Rights. One well-known area in which this happened was that of rules and policies governing the removal of persons who had established some degree of family life here and so might well come within the ambit of art. 8(1) of the Convention even though they had no entitlement to remain here under the Immigration Rules. While such removal might therefore be lawful for the purposes of art. 8(2), it would not necessarily be proportionate. So it was sensible (and today it is necessary) that discretionary decisions outside the Rules should be made within a Convention-compliant policy framework. A policy also helps, importantly, to ensure that like cases are treated alike.

This is why a Home Office policy, with accompanying instructions, was formulated for dealing with persons who, though liable to removal or deportation, had married a person settled here. Depending on the circumstances of the particular case, such people were not necessarily to be removed or deported. The version of the policy upon which this appeal has been argued – DP 3/96 – was not the earliest but was adopted before the passing of the Human Rights Act 1998 and, perhaps surprisingly, has remained in place since. It now, however, coexists with article 8 of the Convention which, by virtue of s.6 of the Human Rights Act, the state is required to respect.

Art. 8 of the Convention provides:

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

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 following parts of the policy are directly or indirectly relevant to the present case:

This policy was in place in 2004, when the Home Office refused the application, and in 2005 when the immigration judge’s decision was promulgated. There has been no suggestion that its predecessor, DP 2/93, was materially different for present purposes. It will be more useful, therefore, to continue to focus on DP 3/96. It can be seen that the policy is not quite coextensive with the Convention right.

First, the effect of the policy is to discount the bare fact of a breach of immigration control if what I will call a qualifying marriage exists – that is to say a genuine and subsisting marriage to a person settled here, entered into at least two years before the initiation of any enforcement action. By using the word “normally”, however, the policy does not necessarily exclude a history of deception or evasion. Article 8(2), by contrast, permits the state to base its justification of the disruption of private or family life on any breach of immigration control.

Secondly, however, the onus which §5(b) of the policy places on the settled spouse to demonstrate undue hardship has no analogue in art. 8(2). The proportionality of a prima facie breach of the Convention right is to be gauged objectively on whatever evidence is available. So far as there is a burden of proof in relation to proportionality, counsel for the Home Secretary accepts that it rests on the state.

The implications of this mismatch can be more usefully examined in the context of the case before the court than in the abstract.

The appellant, a Jamaican citizen, came to this country in September 1998, when she was 32 years old, on a 6-month visitor’s visa. She overstayed. In June 1999 she was joined by her two daughters because her mother was ill and no longer able to look after them. They lived here with the appellant’s sister. Then in May 2000 she met Loron Brown, whom she married in July 2001. Mr Brown, now aged 44, is a British citizen who was born here and has lived here all his life.

Two months after her marriage to Mr Brown the appellant applied to the Home Office for leave to remain on the basis of her marriage to a person settled here. In other words, she identified herself as an overstayer and sought to regularise her position. The application was acknowledged in a letter of 6 November 2001 which also said that applications were taking up to six months to deal with and that the Home Office should not be pressed by the applicant. Thereafter nothing happened until in July 2004 – almost three years after she had applied for leave to remain - the appellant’s new solicitors wrote to the Home Office to ask when a decision might be reached. On 8 September 2004 a reply came, refusing the application.

Since it is at the heart of this appeal, it is right to set the letter out in full:

An appeal to the AIT was dismissed by an immigration judge (Mr R.J. Haynes) in April 2005. The following month a reconsideration was ordered, but a full tribunal (SIJ Freeman, IJ Roe and IJ Baines) in January 2006 held that there was no error of law in the initial determination. The chairman, however, granted permission to appeal to this court on the ground that “the interpretation of policy DP 3/96 may be arguable in the light of the subsequent decision in Baig [2005] EWCA Civ 1246”. In the event, Baig has played no significant part in the argument.

Without disrespect to the full tribunal, our focus, like theirs, has to be on the decision of IJ Haynes. He made his determination at a time when the decision of this court in Huang[2005] EWCA Civ 105 was taken to require proof of wholly exceptional circumstances if a removal was to be held disproportionate. He directed himself in this way:

The immigration judge’s conclusions should be set out in full:

Although the better part of a page of the skeleton argument submitted by the appellant’s advocate contended that policy 3/96 had been overlooked by the Home Office decision-maker and that the appellant came within it, there is no reference anywhere in this determination to the policy save where it summarises the appellant’s argument as being that her application was “covered by the Home Office policy”.

On reconsideration the AIT said nothing about this, but took the view that the Home Office decision letter, while it too said nothing explicitly about the policy, had dealt in substance with its content by deciding that there was no good reason why, if the appellant and her daughters were removed, Mr Brown could not go with them: in other words, that §5(b) of the policy was not met, with the implication that §5(a) was. They went on:

The totality of the immigration judge’s decision on Mr Brown’s position is to be found in §9.10, set out above. Mr Brown had attended to give evidence, had adopted his witness statement (a sketchy and largely argumentative document for which the appellant’s solicitors must accept responsibility), and had been asked nothing by way of cross-examination. On this cursory footing, a bona fide marriage to a British-born citizen, with two children dependent on it, entered into by the appellant as an overstayer but quickly owned up to and then allowed by Home Office inertia to continue for enough years to bring it within the policy, was to be either broken up or transported to a country which was under no obligation even to admit the husband and where there was no evidence, as opposed to supposition, that he was likely to find work or accommodation for himself and his family.

The House of Lords in Januzi v Home Secretary [2006] UKHL 5 devote a long and detailed paragraph (§20) to what has to be established before an asylum-seeker can be expected to relocate in his or her country of origin. It is worth setting it out here, because, while the same range of issues will not necessarily arise, it shows the specificity with which a fact-finding tribunal must consider whether an enforced removal will create undue hardship, a question which is also critical to DP 3/96 and to art. 8(2).

In adapting this reasoning to a case like the present, the tribunal will be considering not returning someone to his or her country of origin but forcing someone lawfully settled here to choose between losing his family or migrating with them to a country which may not be not his own. DP 3/96, it must be recalled, embraces a wide spectrum of status in the word “settled”: it includes both British citizens living in the UK and nationals of other countries who have indefinite leave to enter or remain here. There can be a world of difference, depending on the particular case, between expecting a foreign national, albeit now settled here, to return with his family to his country of origin or move to another country, and expecting a British citizen who has lived here all his life and has an inalienable right of abode here to live and work and find accommodation in a foreign country or forfeit his marriage. This is why the guidance to caseworkers who have to apply DP 3/96 includes “the length of time in the UK” of the settled spouse.

In substance, albeit not in form, Mr Brown was a party to the proceedings. It was as much his marriage as the appellant’s which was in jeopardy, and it was the impact of removal on him rather than on her which, given the lapse of years since the marriage, was now critical. From Strasbourg’s point of view, his Convention rights were as fully engaged as hers. He was entitled to something better than the cavalier treatment he received not only from the Home Office but, I regret to say, from the AIT. It cannot be permissible to give less than detailed and anxious consideration to the situation of a British citizen who has lived here all his life before it is held reasonable and proportionate to expect him to emigrate to a foreign country in order to keep his marriage intact. One finds no consideration given to any of these matters by the AIT at either stage.

For these reasons I consider the finding about Mr Brown’s ability to relocate to Jamaica to be untenable.

As has been seen, the immigration judge, in common with most other immigration judges at the time of his decision, took the law to require wholly exceptional circumstances if removal was to be found proportionate. Even if he had gauged proportionality as explained by the House of Lords in Huang [2007] UKHL11, §19-20, and by this court in such cases as AG (Eritrea) [2007] EWCA Civ 801, §34-7, his dismissive treatment of the burden which removal of his wife and her children would place on Mr Brown could not have passed muster. And this is most certainly not a case in which, had the correct test been applied, the outcome would have been the same. If anything – and I will come to this at the end of the judgment – the opposite is the case.

This brings me back to the dichotomy to which I referred at the beginning of this judgment: a policy, freestanding at the time of its adoption in 1996, which uses one set of criteria, and a more recent Convention right which the policy was intended to prefigure but which contains different criteria. What, since the Human Rights Act came into force on 2 October 2000, is their correct relationship?

The groundrule is that no executive policy can lawfully contravene a Convention right. But that does not mean that policies cannot build upon or enhance Convention rights. This, however, does not make it equitable to allow an appellant who is an overstayer or is otherwise unlawfully here to cherry-pick the useful parts of DP 3/96 and discard the rest: here, for example, to rely on the immateriality of a simple breach of immigration control but to reject the burden on proof placed by the policy on the settled spouse. Counsel for the appellant accepts as much. But, for reasons I will come to, this does not make the policy irrelevant or inadmissible on an appeal.

There appears to be little if any authority on this question. It is common ground that a failure by the Home Secretary to apply his own policy will render his decision “not in accordance with the law” within ground (e) of the permissible grounds of appeal set out in s.84(1) of the Nationality, Immigration and Asylum Act 2002. But it is the Home Secretary’s contention that if a Home Office decision fails this test before the AIT, the immigration judge has no power to apply the policy and is limited to remitting the case so that the Home Office can do so. This is what the AIT in AG (Kosovo) v Home Secretary [2007]UKIAT 0082, §51, considered to be the situation. For the rest, Parishil Patel for the Home Secretary submits that the proper course of reasoning is to ask first whether the case comes within the Rules and if – like this case – it does not, to proceed to consider it under the Convention. As to whether, in doing this, any weight can be given to the Home Secretary’s own policy, he was unwilling to commit himself.

The starting point, as it seems to me, is that no principle of law makes inadmissible on an appeal to the AIT a policy used by the Home Secretary for the very purpose which the AIT is now addressing in the light of the Home Office’s submissions. Indeed, I find it troubling that the Home Office presenting officer does not appear herself to have drawn the immigration judge’s attention to the policy or to have sought to put forward a case consistent with it. Doing so might well have involved accepting that the Home Office did not regard a simple breach of immigration control, once there was a qualifying marriage, as by itself a sufficient reason for removal or deportation. It would also have involved pointing out that the Home Office did, however, regard insufficient proof of unreasonableness in relation to the settled spouse as justifying removal.

This might well have suggested that the bare fact of overstaying, at least when it was relatively brief and had been owned up to, should not be treated by the AIT as particularly significant, and certainly not as determinative, in assessing the proportionality of removal. It would without doubt have involved accepting that a genuine and subsisting marriage to a person settled here, albeit contracted at a time when the appellant should not have been here, ordinarily becomes over time a powerful contra-indicator of removal. It could not, however, have made it proper for the immigration judge to adopt a higher standard than art. 8(2) permits in gauging the reasonableness and hence the proportionality of removal.

If, having given full and structured consideration to the proportionality of a removal which was to affect both the overstayer and the settled spouse, the immigration judge formed the view that removal was proportionate but found too that the Home Office had failed to apply a policy which might realistically have resulted in non-removal, I would accept that remission to the Home Secretary would be the right course. Since, however, DP 3/96 is on balance tougher than art.8, the scenario is probably unreal.

It follows in my view that the determination is further flawed by its failure to bring into the assessment of the proportionality of removing the appellant the fact that the executive as a matter of policy does not regard an overstayer who is now in a qualifying marriage as ordinarily liable to removal if the settled spouse cannot reasonably be expected to go too. The immigration judge appears to have directed himself that policy is for the executive (which is what I take him to have meant by “the elected powers in the state”) and not for him. For the reasons given above, he was right in the first half of this proposition but wrong in the second.

I would therefore allow the appeal. But in what form? Mr Patel wants it sent back to another immigration judge for redetermination. Mr Adler submits that the facts are so uniformly in his client’s favour that, properly approached, they can only result in an oversetting of the Home Secretary’s decision.

The breach of immigration control involved no fraud or concealment, was not protracted and was owned up to. The marriage was genuine, subsists and provides a family not only for Mr and Mrs Brown but for her two adolescent girls now settled here. Mr Brown is here not by leave but by right, was born here, has work and housing here and, so far as the evidence goes, has neither lived nor has accessible roots anywhere else. If, as is accepted, the obligation under art. 8(2) rested on the Home Secretary to show that it was proportionate to expect him to emigrate to Jamaica if he wanted to preserve his marriage, not only was there no evidence about the availability of work or accommodation in Jamaica but, when offered the opportunity, the Home Office presenting officer declined to ask Mr Brown any questions about this or anything else.

On the other side, it can be said that there was an undoubted breach of immigration control which, while not determinative, has to be evaluated by a tribunal of fact; that if it is found to be of significant weight, much may turn on the husband’s situation; and that the husband’s situation is so scantily described in his witness statement (“I have lived all my life in the UK… I have a stable job which I have been doing for over 15 years and the pay is good enough for me”) that it is not a foregone conclusion that removal of the appellant and her children will be held to be disproportionate.

But the easy course of sending the case back gives the Home Office a second chance, which it does not deserve, to get together a case which it signally failed to get together for the hearing. The paucity of evidence from Mr Brown of potential hardship does not matter if the burden was on the Home Office under art. 8(2) to show there was little or none. The significance of Mrs Brown’s breach of immigration control, after a lapse of years owed principally to the Home Office’s still unexplained inertia, could not on any fairminded view make it proportionate either to disrupt the family’s life here by the removal of her and her daughters to Jamaica, or to expect her husband, in order to keep the marriage intact, to go to a country where no evidence showed it to be reasonable to expect him to settle.

In this situation not only ought the AIT, in my respectful view, to have held on its first-stage consideration that the immigration judge had erred in law; it should have gone on, by way of second-stage reconsideration, to allow the appeal. It would not, I think, have been right for it to set the evidence at large again; but whether or not that might have been done by the AIT, it is no longer a fair option. On the evidence as it stood before the immigration judge, the appeal should have succeeded. I would enter judgment accordingly.

We reserved our decision at the conclusion of argument and asked Mr Patel if, pending judgment, the Home Secretary would undertake not to remove Mrs Brown or her daughters. Having taken instructions, Mr Patel informed us that the Home Secretary does not give undertakings to the court. We therefore made an order.

Our judgments, sent out in draft, expressed concern about this response. In answer, and before the judgments were handed down, Mr Patel submitted a note apologising if – incorrectly – the impression was given that the Home Secretary had a policy of never giving undertakings to the court, but recording that it is her practice not to do so where there is a statutory prohibition on removal pending appeal. Here, by virtue of s. 78 of the Nationality, Immigration and Asylum Act 2002, there is such a prohibition. It is regrettable that this was overlooked both by counsel and by the court, since it would have disposed of the issue without further argument.

I wish nevertheless to record my disquiet, which is shared by the other members of the court, about the initial response of the person instructing Mr Patel (a departmental official, we were told, and not a member of the Treasury Solcitor’s staff) to the court’s request. It is well within the knowledge and experience of all three of us that ministers of the Crown can and do give undertakings to the court in appropriate cases. At the point of time when an undertaking was sought by the court there was no apparent reason for the Home Office to refuse. The fact (see M v Home Office[1994] AC 377) that such undertakings, like court orders and statutory requirements, are enforceable is no reason at all why ministers should not give them: on the contrary, the amenability of ministers to justice is an important aspect of equality before the law. And it is consonant with the dignity of the Crown that, where an interim measure of this kind is appropriate, its ministers should undertake rather than be ordered.

In the circumstances, however, it is apparent that Mr Patel’s instructions were given to him in error, both as to the need for an undertaking and as to the propriety of giving one. In the light of Mr Patel’s explanation I cannot think that, had it been appropriate, an undertaking would not have been offered to the court. This much of the judgment should nevertheless be brought to the attention of Her Majesty’s Attorney-General and the Treasury Solicitor.

I agree with Sedley LJ that the determination is flawed for the reasons he has so clearly set out. In the exceptional circumstances of this case, I also agree that it would not be fair to send the matter back to the AIT and the right course is to determine the issue in this court in the way set out in Sedley LJ’s judgment. I agree too with his postscript.

I agree with both judgments.