Vilvarajah and Another v. Secretary of State for the Home Department
VILVARAJAH AND ANOTHER v SECRETARY OF STATE FOR THE HOME DEPARTMENT
Court of Appeal (CIVIL DIVISION)
 Imm AR 457
Hearing Date: 26 October 1987
26 October 1987
Judicial review -- bail -- when an applicant seeking bail should apply to an adjudicator -- when it is appropriate for an application to be made to the court -- the approach adopted by the court where the Secretary of State opposes bail. Immigration Act 1971 sch 2 para 22; RSC 0.53 r 14.
Held: The applicants for bail were Tamils from Sri Lanka who had originally been refused leave to enter but who, on judicial review had secured the quashing of that refusal: they were accordingly detained pending the examination of their claims to be refugees. The court took the opportunity of setting out the principles that applied to the consideration of applications for bail. Held: 1. Where a person was detained pending examination an application for bail should normally be made to an adjudicator who had power to grant it under paragraph 22 of the second schedule to the 1971 Act. 2. Where a decision had been made that a person should not be admitted at all to the United Kingdom, an adjudicator had no jurisdiction and application in appropriate cases had to be made to the court. 3. The Secretary of State might not oppose bail: he might welcome the intervention of the court in granting it because the court could require sureties which the Secretary of State could not demand as a condition of temporary admission. 4. If the Secretary of State opposed bail following a refusal of temporary admission the court should only grant bail if the Secretary of State had erred in principle in refusing temporary admission or had acted unreasonably in the Wednesbury sense.
Cases referred to in the Judgment: R v Secretary of State for the Home Department ex parte Sivakumaran and ors (CA)  1 WLR 1047.
Counsel: A Riza for the applicants; D Pannick for the respondent. PANEL: Sir John Donaldson MR, Neill, Ralph Gibson LJJ
Judgment One: THE MASTER OF THE ROLLS: This court has before it two applications for bail by Tamils, Vaithialingham Skandarajah and Nadarajah Vilvarajah. Before dealing with those applications I would like to try and clear up two fundamental misunderstandings about what it was that this court decided on 12 October 1987. Reading the newspapers the next day and listening to the radio and television (with, I am bound to say, the notable exception of Law in Action) as far as I could make out either no-one had read the judgment -- this, I am bound to say, included the Secretary of State, who broadcast on the radio at one o'clock -- or they did not want to understand the judgment. So let me make it quite clear what we decided -- or rather what we did not decide. We did not hold that any of the Tamils were genuine refugees. We did not hold that any of the Tamils were entitled to asylum. What we did do was to set out the scheme of the relevant immigration rules which, as we saw it (I am not sure how much dispute there is about this aspect), went in two stages. First the Secretary of State had to examine whether the applicant was a refugee, based on the formula to be found in the Convention of well-founded fear of persecution on various grounds. Secondly, if he was a refugee as defined in the Convention, the Secretary of State then had to consider whether or not he was going to grant him asylum. The fact that he was a refugee did not entitle him to asylum. The only circumstance in which he, being a refugee, was entitled to asylum was if he could bring himself within article 33 of the Convention, which adopted an entirely different formula related to fear of death or loss of freedom. What we said was that when the Secretary of State said that none of the Tamils were even refugees, let alone entitled to asylum, he had applied the wrong test, and that each of the Tamils was entitled to have the question of whether or not he was a refugee decided in accordance with the right test, although it might very well be -- we had no means of knowing -- that, applying the right test, the Secretary of State would still have concluded (this time rightly) that the Tamils were not refugees. But it was not for us to decide that and we did not decide it. We certainly never approached the question of whether they were entitled to asylum, because that was the next stage down the line. I hope, without any great confidence, that, having set it out again, it may be understood what it was that we were deciding. It is in the judgment, and nothing that I have said now is intended to modify one word of the judgment which we gave on that occasion. I am merely indulging in an effort at communication, but as I say without any great confidence that I have succeeded. Having said that, let me turn to these applications. It is accepted by the Secretary of State that there is indeed jurisdiction in the court to grant bail. This appeal has been useful as showing the circumstances in which bail may be appropriate. For that purpose it is necessary to make a distinction between the time when somebody is being detained, say on arrival, pending their examination, and the time when somebody is being detained following examination and a determination that they be not admitted but, on the contrary, be required to leave this country. In the first case, where somebody is being detained pending examination, there is jurisdiction under paragraph 22 of the second schedule of the Immigration Act 1971 for him to apply to an adjudicator. The adjudicator has jurisdiction, in an appropriate case, to grant bail. That in fact is the position of these two applicants, because although originally a determination was made that they should not be admitted -- once that determination was made the adjudicator had no jurisdiction -- we set that decision aside. Accordingly technically the adjudicator now has jurisdiction to grant bail, but it would be quite wrong in the circumstances of this case for us to dismiss the application for bail on the basis that there is another and more appropriate channel through which it could be sought, and we do not do so. In cases where the adjudicator has no jurisdiction because a decision has been reached not to grant admission at all, the jurisdiction on the authorities is I think to be exercised as being in the nature of a judicial review of the Secretary of State's decision not to grant bail pending the person leaving the country. There is a class of case, of which we have had one example in the past, where in those circumstances the Secretary of State may indeed welcome the grant of bail by the court, because, unlike the adjudicator, he has no power to impose a requirement of sureties in connection with the grant of temporary admission. But that is not this case. In this case the Secretary of State says that it is not appropriate to grant temporary admission under the Act, whether with or without sureties. His reasons are that the two applicants, when they arrived in this country, were travelling on forged passports which they represented to the immigration officers to be genuine; and they presented themselves for examination on the basis that they were tourists travelling to Canada who wanted to spend a few days in this country. The Secretary of State says that where somebody practises that sort of deception it would not be an appropriate case to grant them temporary admission for the obvious reason that if they have deceived once they may deceive again and it may be very difficult to find them if eventually a decision is reached on the correct grounds that they be denied admission. It is of course clear that those who are or claim to be refugees and who arrive in this country seeking asylum may well have to arrive armed with false documents and false passports. It may be that there is no other way in which they can leave the country from which they have come and come to this country. That is quite understandable, and if the Secretary of State had relied in any way upon that fact he would in my judgment have been wrong. That is one thing. A refugee arrives with a forged passport and says to the immigration officer, "I am a refugee. I claim to be a refugee. I have arrived with forged documents because there was no other way of my coming here. Here are the documents. They are forged." Nobody could hold that against him. It is quite a different matter where a refugee or somebody claiming to be a refugee arrives with forged documents and proffers them to the immigration authorities as being genuine. That is entirely different. For my part I can see no error in principle whatever in the decision of the Secretary of State, and I would not be prepared to grant bail. Mr Riza has said that others have been granted bail. We have no means of knowing how those cases compared. In some cases the people concerned were on board the Earl William, and there may have been reasons -- when that vessel broke her moorings she had to be brought back and repaired, and it may be that those on board that vessel were fortunate. We have no means of knowing how their various circumstances compared, and there is no reason to believe that there has been any inherent unfairness to these applicants. The second point that Mr Riza makes is that they have been detained for a very long time. They came to this country on 11 June. On 20 August their applications to enter were refused. Their application for judicial review was refused on 25 September and the original decision to refuse entry was only quashed on 12 October, so that they have been here for some months, all of that time in detention. It may very well be that, if somebody is detained pending a decision for an excessive time, as Mr Riza has maintained that would ground something in the nature of an application for habeas corpus or bail. That may well be. But, while everybody would sympathise with these applicants for the length of time for which they have been detained here, it was their applications which were being considered, and it was only on 12 October that they succeeded for the first time, albeit to the very limited extent that I have already indicated. I cannot see that mere length of time can override the considerations which have moved the Secretary of State in refusing to give temporary admission. For my part I would dismiss the applications.
Judgment Two: NEILL LJ: I agree that these applications should be refused for the reasons given by my Lord.
Judgment Three: RALPH GIBSON LJ: I also agree.
DISPOSITION: Applications refused
SOLICITORS: Winstanley-Burgess; Treasury Solicitor
Copyright notice: Crown Copyright