Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human rights, the court had to assess whether the, first, the objective could be achieved by some alternative, less interfering, action, and, second, whether the effect was disproportionate to the need. A fair balance has to be struck. The ‘margin of appreciation’ test did not affect the test applied or the question asked. The test was more intense that Wednesbury unreasonableness.
Dyson LJ said: ‘There is nothing in the Convention nor any authority to support Mr Bishop’s assertion that Mr Sezek’s detention is incompatible with Article 5(1)(f) if other ways of preventing him absconding are available.’ ‘The court does not have expertise in judging how effective a deterrent is a policy of deporting foreign nationals who have been convicted of serious drug trafficking offences once they have served their sentences.’
‘[I]n deciding what proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages. At the first stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individual’s rights? . . At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons?’
Judges:
The President Lord Justice Thorpe, Lord Justice Dyson
Citations:
Times 20-Jun-2001, Gazette 09-Aug-2001, Gazette 06-Sep-2001, [2001] EWCA Civ 795, [2001] EWCA Civ 1139, [2002] 1 WLR 348, [2001] UKHRR 1150, [2002] INLR 55
Links:
Statutes:
Human Rights Act 1998, Immigration Act 1971 Sch 3 para 2(3), Supreme Court Act 1981 15(3), European Convention on Human Rights 5.1 8.1
Jurisdiction:
England and Wales
Citing:
Appeal from – Regina v The Secretary of State for Home Department ex parte Samaroo Admn 20-Dec-2000
. .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Cited – Boughanemi v France ECHR 24-Apr-1996
A Tunisian national lived in France. In his youth. He was deported after being convicted of a number of serious criminal offences. He returned illegally and formed a relationship with a French national whose child he acknowledged to be his. He . .
Cited – Sporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
Cited – Regina v Chief Constable of Sussex, ex Parte International Trader’s Ferry Limited HL 2-Apr-1998
Chief Constable has a Wide Discretion on Resources
Protesters sought to prevent the appellant’s lawful trade exporting live animals. The police provided assistance, but then restricted it, pleading lack of resources. The appellants complained that this infringed their freedom of exports under . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – Stott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
Cited – Regina v Secretary of State for Home Department ex parte Mahmood CA 8-Dec-2000
A Pakistani citizen entered the UK illegally and claimed asylum. A week before his claim was refused and he was served with removal directions, he married a British citizen of Pakistani origin. Two children were later born.
Held: Only . .
Cited – Smith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
Cited – Regina v Secretary of State for Home Department ex parte Ali Dinc Admn 3-Apr-1998
The applicant had been sentenced to five years imprisonment for possession of heroin with intent to supply.
Held: In making the decision whether under the Immigration Rules, a deportation order should be made, the Secretary of State was . .
Cited – Caglar v Germany ECHR 7-Dec-2000
The applicant a Turkish national, aged 55 years, had lived in Germany for 30 years. He was sentenced to 7 years’ imprisonment for a drugs offence, and then ordered expuelled to Turkey. His wife had serious psychiatric problems. She needed him and . .
Cited – Barthold v Germany ECHR 25-Mar-1985
Hudoc Violation of Art. 10; Just satisfaction reserved
Any claim to derogation from a convention right must be ‘convincingly established’. . .
Cited – D v United Kingdom ECHR 1997
In the circumstances of the case, where the applicant was in the advanced stage of a terminal illness (AIDS), to implement a decision by the respondent to remove the appellant to St Kitts in the West Indies would be a violation of his rights under . .
Cited – Poku v United Kingdom ECHR 1996
. .
Cited by:
Cited – Regina v Secretary of State for the Home Department Ex parte Saadi and others HL 31-Oct-2002
The applicants were Kurdish asylum seekers. The Home Secretary introduced powers to detain certain asylum seekers for a short period in order to facilitate the speedy resolution of their applications. Only those who it was suspected might run away . .
Cited – M v London Borough of Islington and Another CA 2-Apr-2004
The applicant asylum seeker had had her application refused, and was awaiting a removal order. She had a child and asked the authority to house her pending her removal.
Held: Provided she was not in breach of the removal order, the council had . .
Cited – Lough and others v First Secretary of State Bankside Developments Ltd CA 12-Jul-2004
The appellants challenged the grant of planning permission for neighbouring land. They sought to protect their own amenities and the Tate Modern Gallery.
Held: The only basis of the challenge was under article 8. Cases established of a breach . .
See Also – Allan Samaroo v Secretary of State for the Home Department CA 18-Sep-2001
A civil court of appeal has power to hear an application for bail in the course of a judicial review of a committal to custody under the Act pending deportation. Though the applicant could have sought habeas corpus, the court could exercise a . .
Cited – Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
Cited – X, Regina (on the Application of) v Y School Admn 21-Feb-2007
The court was asked whether a school was entitled to refuse to allow a Muslim girl to wear the niqab full face veil at school. The reasons were ‘first educational factors resulting from a teacher being unable to see the face of the girl with a . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Secretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
Cited – Birmingham City Council v James and Another CA 17-May-2013
The appellant challenged an injunction under the 2009 Act excluding him from parts of Birmingham. He said that it prevented him visiting his mother.
Held: The appeal failed. Moore-Bick LJ said: ‘It was for the judge to decide on the basis of . .
Cited – Martin Corey, Re for Judicial Review SC 4-Dec-2013
The appellant challenged his recall to prison from licence. He had been convicted in 1973 of the murder of two police officers. He had remained at liberty for 18 years, befire his licence was revoked on the basis of confidential iintelligence . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Judicial Review, Immigration, Human Rights
Updated: 01 June 2022; Ref: scu.159581
