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

Publisher United Kingdom: Court of Appeal (England and Wales)
Author Court of Appeal (Civil Division)
Publication Date 10 February 1986
Citation / Document Symbol [1986] 1 All ER 717, [1986] 1 WLR 477, [1986] Imm AR 88
Cite as R v. Secretary of State for the Home Department, Ex parte Swati, [1986] 1 All ER 717, [1986] 1 WLR 477, [1986] Imm AR 88, United Kingdom: Court of Appeal (England and Wales), 10 February 1986, available at: http://www.refworld.org/cases,GBR_CA_CIV,3ae6b6aa0.html [accessed 24 September 2017]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

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

Court of Appeal, Civil Division

[1986] 1 All ER 717, [1986] 1 WLR 477, [1986] Imm AR 88

Hearing Date: 30, 31 January, 10 February 1986

10 February 1986

Index Terms:

Immigration -- Leave to enter -- Refusal of leave -- Reasons for decision -- Adequacy of reasons -- Entrant seeking leave to enter for one week -- Immigration officer refusing leave because she was 'not satisfied that [entrant] genuinely seeking entry only for . . . limited period' -- Whether immigration officer's statement constituting sufficient 'reasons for the decision' -- Immigration Appeals (Notices) Regulations 1984, reg 4(1)(a)

Judicial review -- Availability of remedy -- Alternative remedy available -- Alternative remedy not pursued -- Immigration officer refusing applicant leave to enter United Kingdom -- Applicant not pursuing statutory right of appeal -- Whether appropriate to grant leave to apply for judicial review -- Immigration Act 1971, s 13.

Immigration -- Detention -- Application for leave to apply for judicial review -- Bail -- Detention pending hearing of application for leave to apply for judicial review -- Grant of bail pending hearing of application -- Immigration Act 1971, Sch 2, para 16.

Held:

The applicant sought leave to enter the United Kingdom as a visitor for one week. The immigration officer refused leave, stating 'I am not satisfied that you are genuinely seeking entry only for this limited period'. Under reg 4(1)(a) of the Immigration Appeals (Notices) Regulations 1984 written notice of any decision was required to 'include a statement of the reasons for the decision'. The applicant sought judicial review of the immigration officer's decision on the grounds that her statement was not a sufficient reason for the purposes of reg 4(1)(a) and that the decision itself was irrational. He did not seek to pursue his remedies of appeal to an adjudicator and the Immigration Appeal Tribunal under s 13 of the Immigration Act 1971 since that required him first to leave the United Kingdom. Pending his application for judicial review he was detained under para 16(2) of Sch 2 to the 1971 Act at a remand centre. The questions arose (i) whether having regard to the alternative remedies provided by s 13 the court should grant leave to apply for judicial review and (ii) whether on such an application the court had jurisdiction to grant the applicant bail pending its decision. The Divisional Court refused leave to apply for judicial review. The applicant renewed his application to the Court of Appeal.

Held -- (1) A statement by an immigration officer when refusing an intending entrant leave to enter the United Kingdom that he was not satisfied that the intending entrant was genuinely seeking entry as a visitor for a limited period only was, for the purposes of reg 4(1)(a) of the 1984 regulations, an adequate statement of reasons for the refusal and the immigration officer was not required to state the facts and reasoning underlying the decision, since at the time of refusing leave the immigration officer was only required to provide the intending entrant with sufficient information to enable him to consider whether to appeal and the immigration officer's statement provided that information. Furthermore, in the absence of any evidence to suggest at least an arguable case that the immigration officer's decision was irrational and flawed, there were no grounds for judicial review of her decision.

(2) In the absence of exceptional circumstances, the appeals procedure set out in s 13 of the 1971 Act provided an alternative and appropriate remedy to judicial review. Accordingly, since there were no special features to distinguish the applicant's case, he ought to have availed himself of the remedy of appeal under s 13 before seeking judicial review, nothwithstanding the fact that he had first to leave the United Kingdom before doing so (see p 723 j to d, p 726 a b, p 727 j and p 728 j, post); R v Chief Immigration Officer, Gatwick Airport, ex p Kharrazi [1980] 3 All ER 373 distinguished; R v Chief Constable of the Merseyside Police, ex p Calveley [1986] 1 All ER 257 considered.

per curiam. When considering an application for judicial review of an immigration officer's refusal of leave to enter the United Kingdom, the court has jurisdiction to grant bail, but will only do so if leave to apply for judicial review has been granted, and then only in exceptional circumstances.

Notes:

For the abuse of the exercise of a discretion or power, see 1 Halsbury's Laws (4th edn) paras 60-62.

For the control of immigration and the powers of immigration officers, see 4 ibid paras 1003-1009, and for cases on the subject, see 2 Digest (Reissue) 203-207, 1160-1176.

For the Immigration Act 1971, s 13, Sch 2, para 16, see 41 Halsbury's Statutes (3rd edn) 34, 67.

Cases referred to in the Judgment:

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223, CA

Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141, [1982] 1 WLR 1155, HL

Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935, [1985] AC 374, [1984] 3 WLR 1174, HL

Gumede v Minister of Law and Order 1984 (4) SA 915, NPD. Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447, CA. R v Chief Constable of the Merseyside Police, ex p Calveley [1986] 1 All ER 257, [1986] 2 WLR 144, CA

R v Chief Immigration Officer, Gatwick Airport, ex p Kharrazi [1980] 3 All ER 373, [1980] 1 WLR 1396, CA

R v Secretary of State for the Home Dept, ex p Uddin (21 October 1985, unreported), QBD

Sachs v Minister of Justice, Diamond v Minister of Justice 1934 AD 11, SA CA.

Cases cited in the Judgment:

Khawaja v Secretary of State for the Home Dep [1983] 1 All ER 765, [1984] AC

74, HL

McKiernan's Application, Re (5 June 1985, unreported), NI CA Martin v Glynwed Distribution Ltd [1983] ICR 511, CA

R v Chief Immigration Officer, Heathrow Airport, ex p Salamat Bibi [1976] 3 All ER 843, [1976] 1 WLR 979, CA

R v Peterkin (Adjudicator), ex p Soni [1972] Imm AR 253, DC Union of Construction Allied Trades and Technicians v Brain [1981] ICR 542, CA Wandsworth London BC v Winder [1984] 3 All ER 976, [1985] AC 461, HL.

Introduction:

Application for leave to apply for judicial review

Taj Mohd Swati applied for leave to apply for judicial review and bail following the order of the Divisional Court of the Queen's Bench Division (Watkins, Woolf and Nolan LJJ) dated 20 December 1985 whereby the court dismissed his application for leave to apply for (i) an order of certiorari to quash the decision of an immigration officer at Terminal 3, Heathrow Airport, dated 14 October 1985 refusing the applicant leave to enter the United Kingdom under s 13(1) of the Immigration Act 1971 and (ii) for an order of mandamus ordering the immigration officer to grant the applicant leave to enter. The applicant also sought an order that the immigration officer be directed to release the applicant on bail and on temporary admission pending the outcome of the hearing of the substantive application. The facts are set out in the judgment of Sir John Donaldson MR.

Counsel:

Louis Blom-Cooper QC and KA Quddus for Mr Swati; John Laws for the Secretary of State

Judgment-READ:

10 February. The following judgments were delivered.

PANEL: Sir John Donaldson MR, Stephen Brown and Parker LJJ

Judgment One:

SIR JOHN DONALDSON MR: On 14 October 1985 Mr Taj Mohd Swati arrived at Heathrow Airport from Pakistan. He sought leave to enter and remain in this country for one week in order 'to spend some time visiting places of interest in the UK which had been my long term ambition'. The venture has not been a success, because he was refused permission to enter and the only places of interest which he has been able to visit were the airport and the Ashford Remand Centre. He could, of course, have left the country, but he has preferred to remain here in an attempt, which has been unsuccessful, to obtain judicial review of the decision to refuse him entry and for bail meanwhile.

The application for leave to apply for judicial review, and a similar application by a Mr Nasir Butt, came before the single judge on 31 October 1985. As both applications were typical of a large number which have recently been received from aspiring visitors (the judge had himself been concerned with no less than nine such applications on a single day in the same week), they were adjourned to the full Divisional Court for consideration of two general questions. These were:

'1. Whether, having regard to the alternative remedy provided by the Immigration Act 1971 of a right of appeal to an adjudicator, and then with leave to a tribunal, which the visitor who is refused leave to enter has when he has left this country, the court should grant leave to apply for judicial review, and if so, the evidence and nature of the case which shall be put before the court before it grants leave.

2. Whether this court on an application for judicial review has jurisdiction to grant bail where the applicant is being detained pending the decision of the court on his application for judicial review, and, if it has jurisdiction, whether in the case of applicants who are being detained pursuant to the provisions of the Immigration Act 1971 any special principles apply in relation to the exercise of the court's discretion as to the grant of bail.'

The system of immigration control

All countries have some system of immigration control. In the case of the United Kingdom the detailed provisions are to be found in the Immigration Act 1971 and in documents called House of Commons Statements, which are laid before Parliament pursuant to s 3(2) of the 1971 Act. There are also some statutory instruments bearing on the subject, two of which are relevant for present purposes.

Those who seek to enter this country fall into a number of different categories and sub-categories to which different rules apply. Mr Swati came into the category of a 'passenger coming for temporary purposes', as contrasted with 'passengers coming for employment or business, as persons of independent means, or for marriage' and 'passengers coming for settlement'. There are also other categories. Within this category he came within the sub-category of 'visitor' as contrasted with 'student' and 'au pair'.

Some countries require visitors to obtain visas or equivalent authorisations before arrival, either generally or if they are of specified nationalities. In the case of the United Kingdom, visitors from Pakistan have a choice. They can either apply to the United Kingdom representatives in Pakistan for an 'entry clearance certificate', ie a visa, or come to this country and rely on being able to satisfy the immigration officer at the port of entry that they qualify for admission.

There are at least three advantages in obtaining entry clearance instead of simply arriving and requesting leave to enter. The first is that any problems as to eligibility to enter can be explored and resolved without incurring the expense of a possibly fruitless journey to the United Kingdom. The second is that the holder of such a certificate can only be refused admission on the comparatively limited grounds set out in para 13 of the Statement of Changes in Immigration Rules (HC Paper (1982-83) no 169) (HC 169). The third is that, if the holder is refused admission by the immigration officer at the port of entry, he can appeal to an adjudicator and, in some circumstances, appeal further to an immigration tribunal without first leaving the country. In the absence of such a certificate, the aspiring visitor can only appeal after he has left the country (see s 13(3) of the 1971 Act). We have not been told why Mr Swati did not apply for entry clearance in Pakistan, but it is common knowledge that there are very considerable delays involved and this may well have been the reason.

Arriving as he did without an entry clearance certificate, Mr Swati had to satisfy the immigration officer of his eligibility to enter the United Kingdom temporarily as a visitor. The relevant conditions of eligibility are to be found in paras 15 and 17 to 20 of HC 169, as amended by the Statement of Changes in Immigration Rules (HC Paper (1984-85) no 503), although the amendments are immaterial for present purposes. Paragraph 15, which is not limited to visitors, required Mr Swati to satisfy the immigration officer that he would be admitted to another country after his stay in the United Kingdom. Paragraphs 17 to 20 apply only to visitors and of these it is only necessary to refer to para 17, which is in the following terms:

'A passenger seeking entry as a visitor, including one coming to stay with relatives or friends, is to be admitted if he satisfies the immigration officer that he is genuinely seeking entry for the period of the visit as stated by him and that for that period he will maintain and accommodate himself and any dependants, or will, with any dependants, be maintained and accommodated adequately by relatives or friends, without working or recourse to public funds, and can meet the cost of the return or onward journey. But in all cases leave to enter is to be refused if the immigration officer is not so satisfied, and in particular, leave to enter is to be refused where there is reason to believe that the passenger's real purpose is to take employment or that he may become a charge on public funds if admitted.'

For the sake of completeness, it should be mentioned that there are other general provisions which can justify a refusal of leave to enter, although none is relied on in the present case. They are contained in paras 76 to 85 of HC 169 and relate to such matters as passengers with a criminal record, those who are currently subject to a deportation order and those whose exclusion is conducive to the public good.

The arrival of Mr Swati

Mr Swati arrived at London Heathrow by air from Pakistan on 14 October 1985. In the usual way he was examined by an immigration officer with a view to finding out why he wished to enter the country, how long he wished to stay and whether he was eligible under the rules. This is in accordance with para 2 of Sch 2 to the 1971 Act. A week earlier Mr Swati had written to a friend of his, a Mr Naz, telling him of the proposed visit and Mr Naz was at the airport to greet him. The immigration officer also interviewed Mr Naz.

Mr Swati tells us, and no doubt told the immigration officer, that he is employed in Pakistan as the manager of 'Pindi Tailor', who are Pakistan government contractors and general order suppliers, that he had a salary of 3,500 rupees per month, that he was married to a schoolteacher who earned 1,500 rupees a month, that he owned 77 canals of landed property, that he and his wife saved 2,000 to 3,000 rupees a month and that this had sufficed to enable him to buy a return ticket to London from Pakistan and to bring with him $400 to spend during his stay.

Mr Naz, like Mr Swati, is in the garment trade. He settled in the United Kingdom in 1976 and is employed as a cutter by a London company. He offered to provide Mr Swati with accommodation at his three-bedroomed house in East London for the duration of his visit. Mr Naz expressed his belief that Mr Swati would return to Pakistan at the end of the proposed visit. Mr Swati tells us that so far as he is aware there was no inconsistency between his answers to questions by the immigration officer and those of Mr Naz.

At the conclusion of the interviews, and no doubt after obtaining the authority of a chief immigration officer in accordance with para 78 of HC 169, the immigration officer handed Mr Swati a notice of refusal of leave to enter reading:

'You have asked for leave to enter the United Kingdom as a visitor for one week but I am not satisfied that you are genuinely seeking entry only for this limited period.'

The notice informed Mr Swati that arrangements would be made to remove him from the country on a specified aircraft. The contents of the notice, which also referred to Mr Swati's right to appeal within 28 days after he had left the country and informed him of the assistance and advice obtainable from the independent United Kingdom Immigrants Advisory Service, was explained to him in Urdu. Attached to the notice was a form with which to initiate an appeal.

The detention of Mr Swati

A person who is refused leave to enter the United Kingdom may be removed from the country pursuant to the powers contained in paras 8 to 14 of the Sch 2 to the 1971 Act. Such a person may be detained pending removal (para 16) and may be arrested without warrant by a constable or immigration officer (para 17). Further, whilst so detained he is deemed to be in legal custody (para 18(4)). Alternatively he may be temporarily admitted to the United Kingdom pursuant to para 21, without prejudice to a later exercise of the power of detention. This latter power was not exercised in the case of Mr Swati, who was detained. That detention has continued whilst his applications for leave to apply for judicial review were under consideration.

The application for leave to apply for judicial review

On 16 October 1985 solicitors instructed by Mr Naz on behalf of Mr Swati informed the Home Office that there would be an application for judicial review of the refusal of leave to enter. When filed, it sought to quash the refusal of leave and an order requiring the grant of leave together with bail or temporary admission meanwhile. The grounds on which relief was sought were that Mr Swati satisfied the requirements of para 17 of HC 169 and that the decision of the immigration officer was based on mere suspicion and not on facts.

If Mr Swati were to obtain leave, he had at least to satisfy the court that he had an arguable case for judicial review on the grounds of illegality, 'irrationality' (ie Wednesbury unreasonableness: see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223) or procedural impropriety (see Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at 950, [1985] AC 374 at 410). Illegality has never been alleged and the only procedural irregularity suggested is that the notice given to Mr Swati inadequately explained why entry was refused. Subject to this point on the notice, the application must rest on the alleged irrationality of the decision. The two grounds are, of course, interrelated in that, if Mr Swati is entitled to a fuller explanation of the grounds of refusal, those expanded grounds might make it clear one way or the other whether the immigration officer misdirected himself in law, took account of irrelevant matters or failed to take account of relevant matters. I therefore take this complaint first.

It is based on the Immigration Appeals (Notices) Regulations 1984, SI 1984/2040, which provide that written notice of any decision or action which is appealable, as was this refusal of leave to enter shall 'include a statement of the reasons for the decision or action to which it relates' (reg 4(1)(a)). Counsel for Mr Swati submitted that for an immigration officer to say that he is not satisfied that an applicant for leave to enter is genuinely seeking entry only for the limited period which he had specified is a conclusion on the evidence available to the immigration officer and that what is required is something different, namely reasons for this conclusion, such as: 'Your statements are inconsistent with other statements made to me by X and Y'.

In support of this submission counsel for Mr Swati referred us to two decisions of the South African courts, Sachs v Minister of Justice, Diamond v Minister of Justice 1934 AD 11 and Gumede v Minister of Law and Order 1984 (4) SA 915, and one Australian decision, Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447. I do not refer further to them, since I did not find them helpful. They are all decisions under different statutory provisions and in a different context.

What is or is not a 'statement of reasons' sufficient to comply with the 1984 regulations is to be determined by the answers to two questions. (1) What is the relevant decision or action? (2) Why did the person concerned take that decision or action? The answer to the latter question provides the reasons which have to be stated. No doubt those reasons, if rational, will be based on a process of reasoning applied to evidence and, to this extent, may be described as a conclusion from that evidence. But this does not prevent that conclusion being the reason for the decision or action which is appealable and it is for this reason that the regulations call. In the instant appeal the immigration officer, by specifying that she was not satisfied that Mr Swati was genuinely seeking entry only for the limited period of one week, not only told Mr Swati why she was refusing him leave to enter, but also told him, by implication, that he had satisfied her on all other matters on which he had to satisfy her in accordance with paras 15 and 17 of HC 169.

The purpose of the regulation is no doubt to give the intending entrant sufficient information for him to form a view on whether it is worth his while to take the first step in initiating appeal proceedings by returning the appeal form with which he is provided. If he does so, he then becomes entitled not only to the reasons for the decision but also to 'a written statement of the facts relating to the decision or action in question' (r 8 of the Immigration Appeals (Procedure) Rules 1984, SI 1984/2041). What counsel for Mr Swati is seeking to achieve is a written statement of the facts relating to the refusal of leave to enter in addition to the reasons for that refusal. This can only be done by leaving the country and then giving notice of appeal.

We were also referred to the decision of Kennedy J in R v Secretary of State for the Home Dept, ex p Uddin (21 October 1985, unreported) that identical reasons were sufficient. This led counsel for Mr Swati to describe them as 'ritual incantation'. By this I understood him to mean that the words were used without any particular regard to the realities of the particular case, but rather as an empty formula. If there was any evidence that they could properly be so described, I should certainly have been minded to grant leave to Mr Swati to apply for judicial review. However, in the circumstances of an application to enter as a visitor, it is to be expected that the same reason will underly the refusals in a number of cases and, if that occurs, I do not understand why the reasons should not be described in the same words in each such case.

I therefore return to 'arguable irrationality' as a basis for granting leave to apply. It was for Mr Swati to satisfy the immigration officer that he met the criteria for visitors set out in HC 169 and, if he failed to do so, the immigration officer was bound to refuse him leave to enter. We know what Mr Swati and Mr Naz say that they told the officer, but that is all. They may have been wholly unconvincing. They may have contradicted each other. There may have been other information available to the immigration officer which cast a different light on their assertions. We just do not know.

In this situation, counsel for Mr Swati drew our attention to the decision of this court in R v Chief Immigration Officer, Gatwick Airport, ex p Kharrazi [1980] 3 All ER 373, [1980] 1 WLR 1396. There an Iranian boy of 13 applied to enter as a student and was refused leave on the grounds that the immigration officer was not satisfied that he intended to leave the United Kingdom when his studies were completed. Counsel for Mr Swati submitted that, at the stage at which leave was granted, that case must have been indistinguishable from the present. However, once leave was granted and the immigration officer elaborated on his reasons, it became apparent that he had that he had misdirected himself in law by treating the relevant period of study as confined to attendance at school, whereas the boy wanted to stay until he had passed through a university. On the facts the boy clearly intended to leave after the completion of his tertiary education, but not after the completion of his secondary education. The latent misdirection having been disclosed, the court quashed the refusal to enter.

Counsel for Mr Swati urged us to entertain the possibility that there had been a latent misdirection in the present case and stressed that at this stage he was only seeking leave to apply. Whether the application would or would not be successful at a later stage was another matter. He also relied on the fact that, as appears from the judgment of the Divisional Court in the instant case, leave has sometimes been given by the High Court in similar cases on an undertaking to withdraw the application if the response by the Home Office showed that the application could not succeed. Alternatively, the application could be adjourned and restored on an inter partes basis, the Home Office being invited to give a fuller indication of what the immigration officer's case would be if leave were granted.

So far as the decision in Kharrazi's case is concerned, the decision to grant leave to apply was reached in the exericse of discretion and it is in the nature of a discretionary decision that it cannot form a binding precedent. It would have been otherwise if this court had laid down principles on which the discretion was to be exercised. In fact the circumstances were wholly exceptional and this must have been apparent even at the stage when leave was being sought. The boy had immigrated from Iran to the United States some years previously. As a result of the siege of the United States Embassy in Teheran, the position of Iranian nationals in the United States had become extremely difficult and it was on this account that his parents decided to seek to continue his education in England. Meanwhile they had returned to Iran. If the boy was to appeal against the refusal of leave to enter, he would first have to leave this country and the only place to which he could go was Iran where the rest of his family now were. However, any appeal, even if successful, would have been wholly nugatory, because the Iranian authorities had imposed a ban on any children of his age leaving the country. If he returned to Iran, he could not leave until he was much older. No such special features are apparent in the present case.

Even if the matter had stopped there, I would have been minded to refuse leave to apply on the grounds that an applicant must show more than that it is not impossible that grounds for judicial review exist. To say that he must show a prima facie case that such grounds do in fact exist may be putting it too high, but he must at least show that it is a real, as opposed to a theoretical, possibility. In other words, he must have an arguable case. The facts alleged by the appellant do no more than suggest that he may have not appeared as credible to the immigration officer as he would have wished, although the theoretical possibility that the immigration officer misdirected herself must always exist in the absence of evidence of how she did in fact direct herself. The decision itself is not so surprising as to cause me to wonder whether it might not be flawed on grounds of 'irrationality'.

However, the matter does not stop there, because it is well established that, in giving or refusing leave to apply for judicial review, account must be taken of alternative remedies available to the applicant. This aspect was considered by this court very recently in R v Chief Constable of Merseyside Police, ex p Calveley [1986] 1 All ER 257, [1986] 2 WLR 144 and it was held that the jurisdiction would not be exercised where there was an alternative remedy by way of appeal, save in exceptional circumstances. By definition, exceptional circumstances defy definition, but, where Parliament provides an appeal procedure, judicial review will have no place unless the applicant can distinguish his case from the type of case for which the appeal procedure was provided.

Mr Swati may have no basis for complaint at being refused leave to enter. He may have cause to complain that the immigration officer erred in her assessment of the evidence, that her credulity threshold was too high. He may have cause to complain that she misunderstood and therefore misapplied the criteria for granting leave to enter. We simply have no idea which is the case. All these matters will be open on a statutory appeal, but only the latter could form the basis for judicial review, since, as Lord Brightman pointed out in Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141 at 154, [1982] 1 WLR 1155 at 1174, judicial review is not so much concerned with the merits of the decision as with the way in which it was reached. In a word, Mr Swati's case is wholly indistinguishable from the general run of cases where someone arrives in the United Kingdom and is dissatisfied because he is denied leave to enter. Accordingly, in my judgment, he should not be allowed to pursue it by way of judicial review.

We, like the Divisional Court, had the very considerable advantage of assistance from counsel who appeared on behalf of the Secretary of State. He fully accepted that there is no jurisdictional bar to judicial review of decisions in immigration matters. As he pointed out, they are administrative decisions of a character which has attracted judicial review and Parliament has not excluded it. In his submission, the only issue in the context of Mr Swati's application for leave to apply was one of how a judicial discretion should be exercised. I agree.

Bail

As Mr Swati was deemed to be in legal custody (para 18(4) of the Sch 2 to the 1971 Act) and as we were agreed that leave to apply for judicial review should be refused, no question of bail arose. I would only say that, for my part, I agree that there is an inherent jurisdiction to grant bail, but that, in agreement with the Divisional Court, I consider that, in the light of the statutory powers available to the Secretary of State and to adjudicators, it will only be in exceptional cases that it should be exercised and only if leave to apply for judicial review has been granted.

Postscript

The remarks of the single judge in referring this case to the full Divisional Court have highlighted what is undoubtedly a very real problem, albeit not one which is capable of judicial solution. Many visitors and other intending immigrants who are refused leave to enter are very well aware that it is not the practice of the Home Office to arrange for their removal if either a member of Parliament has indicated that he wishes to consider their case with a view to making representations or the person concerned has indicated an intention to apply for leave to bring proceedings by way of judicial review. They are also aware that in many such cases, Mr Swati being an exception, temporary admission will be granted.

Subject to any special conditions which may be imposed, temporary admission confers many of the advantages which would have been secured if leave to enter had been granted. Furthermore, these advantages will be enjoyed for a considerable time if an application for leave is made in writing to the High Court, renewed in open court and then further renewed to this court.

It would be quite inappropriate for a judge to say anything about representations by members of Parliament to the Secretary of State or about what action should be taken by the Secretary of State in response, and I do not do so. However, different considerations apply in relation to the Secretary of State's reaction to being informed that an intending immigrant is to apply for leave to seek judicial review. That he has a right to apply and to do so in triplicate is not in question. But, if he seeks to exercise this right, then, pending a final determination of the application, neither the courts nor the Secretary of State can be sure that the application will not succeed and, if it did, whether the courts would think it appropriate to order a stay of the impugned decision pursuant to RSC Ord 53, r 10. Any premature removal of the intending immigrant might deprive the courts of the power to make such an order.

In these circumstances the Secretary of State cannot be criticised for holding his hand. Indeed, in most circumstances he could be criticised if he failed to do so. However, the power of the court to stay the decision which is impugned and to grant bail would be in no way interfered with if applicants for leave to apply for judicial review were held in custody, rather than being granted temporary admission and the temptation to abuse the powers of the court, which was noted in the judgment of the Divisional Court, would be substantially reduced if this course were adopted. Whether or not this should be done is not a matter for us, but I mention it in order to make it clear that its adoption would in no way inhibit the exercise of the powers of the court.

Judgment Two:

STEPHEN BROWN LJ: There is no doubt that the court has jurisdiction to entertain an application for judicial review from a person who is refused leave to enter the United Kingdom by an immigration officer. The decision to refuse entry is an administrative decision of a character which is capable of attracting judicial review. However, leave to apply is required and the granting of leave is a matter of judicial discretion. The onus is on an applicant to show that he has arguable grounds for challenging the decision complained of. It is not sufficient merely to express disagreement, however strongly. In the case of Mr Swati his notice of application for leave to apply for judicial review gave the following 'grounds on which relief is sought':

'1. Under the applicable Immigration Rules para 17 HC 169 the applicant satisfied all the requirements namely:- a. The applicant is genuinely seeking entry for a short period. b. The applicant will be accommodated adequately by his friend RAFIQUE UR RAHMAN NAZ at 21 Grosvenor Road East Ham London E6. c. The applicant can meet the costs for remaining in the UK and the costs for the return journey.

2. The Immigration Officer's decision is on mere suspicion and not on facts.'

In his supporting affidavit he stated:

'6. I feel that I have fulfilled all the requirements for leave to enter as a visitor as I came with a return ticket and have the means to support me during my stay in the UK and that my visit is motivated purely from my intention to see places of interest in the UK and stay here for some time during my holiday. Despite my fulfilling all the requirements I was refused leave to enter under section 13(1) of the Immigration Act 1971 and have been detained under para 16 of Schedule 2 to the Act. A copy of the Immigration Officer's decision is now produced to me and marked "TMS1". I verily believe that the Immigration Officer's decision was based on mere suspicion and is contrary to the facts and the circumstances.

7. The Immigration Officer was wrong in refusing me leave to enter in the UK as a visitor as I have got the means to undertake the visit and I will most definitely go back and resume my usual employment in Pakistan.'

Each of these 'grounds' is an assertion of factual disagreement with the immigration officer's decision. No want of authority or procedural irregularity is there alleged.

Unless the reason given by the immigration officer for refusal was deficient, there can be no basis for granting leave to apply for judicial review. I have no doubt that the immigration officer in this case gave an adequate and proper reason for refusing leave to enter. She adopted the phraseology of para 17 of the Statement of Changes in Immigration Rules (HC Paper (1982-83) no 169). I agree with Kennedy J in R v Secretary of State for the Home Dept, ex p Uddin (21 October 1985, unreported) when he said: 'I can see no reason why the form of refusal should not be in the words provided by the paragraph . . .'

The statutory appeal procedure to an adjudicator and, with leave, to the Immigration Appeal Tribunal is clearly the appropriate method of challenging the immigration officer's decision. It is a procedure which enables the full facts to be ascertained. The process of judicial review is not appropriate for a purely factual challenge.

I am satisfied that there is no basis on which Mr Swati should be granted leave to apply for judicial review.

I am in complete agreement with the judgment of Sir John Donaldson MR and agree that this renewed application should be dismissed.

Judgment Three:

PARKER LJ: Mr Swati, when he arrived at Heathrow Airport on 14 October 1984, asked for leave to enter the United Kingdom for one week. He was refused leave by the immigration officer. He was accordingly entitled under para 3 of the Immigration Appeals (Notices) Regulations 1984, SI 1984/2040, to notice as soon as practicable of the decision to refuse leave. Pursuant to reg 4(i)(a) of those regulations, such notice was required to include a statement of the reasons for the decision. He was on the same day given a notice which, so far as material, was in the terms following:

'You have asekd for leave to enter the United Kingdom as a visitor for one week but I am not satisfied that you are genuinely seeking entry only for this limited period. I therefore refuse you leave to enter the United Kingdom.'

The Statement of Changes in Immigration Rules (HC Paper (1982-3) no 169) provides that a passenger seeking entry as a visitor including one coming to stay with relatives or friends is to be admitted if he satisfies the immigration officer (i) that he is genuinely seeking entry for the period stated by him, (ii) that for that period he will maintain or accommodate himself and any dependant or will, with any dependants, be maintained and accommodated adequately by relatives or friends without working or recourse to public funds, (iii) that he can meet the cost of the return or onward journey. It also provides that leave to enter shall be refused in all cases if the immigration officer is not so satisfied that in particular leave is to be refused where there is reason to believe that the passenger's real purpose is to take employment or that he may become a charge on public funds.

Furthermore, entry may be refused on a number of other grounds, eg (i) failure to satisfy the immigration officer that he will be admitted to another country after a stay in the United Kingdom (para 15), (ii) refusal to submit to a medical examination (para 80).

The terms of the notice given to Mr Swati made it perfectly clear that the ground for refusal of leave was the first of the three grounds specified and nothing else. It is a plain statement that he was refused leave because he had not discharged the burden on him of satisfying the immigration officer that he was genuinely seeking entry for one week only.

The grounds on which Mr Swati seeks leave to apply for judicial review in the statement provided for by RSC Ord 53, r 3(2)(a)(ii) are in the following terms:

'1. Under the applicable Immigration Rules para 17 HC 169 the applicant satisfied all the requirements namely:- a. The applicant is genuinely seeking entry for a short period. b. The applicant will be accommodated adequately by his friend RAFIQUE UR RAHMAN NAZ at 21 Grosvenor Road East Ham London E6. c. The applicant can meet the costs for remaining in the UK and the costs for the return journey.

2. The Immigration Officer's decision is on mere suspicion and not on facts.'

In his affidavit in support provided pursuant to Ord 53, r 3(2)(b) Mr Swati says, inter alia:

'1. . . . I came . . . seeking leave to enter as a visitor for one week meaning a short visit . . .

6. I feel that I have fulfilled all the requirements for leave to enter as a visitor as I came with a return ticket and have the means to support me during my stay in the UK and that my visit is motivated purely from my intention to seek places of interest in the UK and stay here for some time during my holiday . . . I verily believe that the Immigration Officer's decision was based on mere suspicion and is contrary to the facts and the circumstances . . .' (My emphasis.)

Also in support of his application, Mr Swati lodged an affidavit sworn by his friend Mr Naz, who met him at Heathrow Airport and was questioned, as was Mr Swati, by the immigration officer. Mr Naz says (so also does Mr Swati) that Mr Swati had written to him one week before departure, and then, so far as immediately material:

'. . . I am satisfied that he is a visitor and he will be going back after a period . . . I am . . . able to provide guarantee that at the end of his visit he will be leaving the UK.' (My emphasis.

On the face of these documents Mr Swati in my judgment shows no shred of an arguable case for judicial review which he must do if he is to be granted leave.

In these grounds he does not assert that he was genuinely seeking entry for one week but that he was genuinely seeking entry for 'a short period'. In his affidavit he says he came seeking entry for one week 'meaning a short visit'.

Mr Naz merely says he was satisfied that Mr Swati will be going back 'after a period'. His obligation was however to satisfy the immigration officer that he was genuinely seeking entry for the period of the visit as stated by him.

It is not suggested that such period was other than one week. It is not suggested that he was genuinely seeking entry for that period. It is said merely that by stating one week he meant a short visit. Far from showing an arguable case, the statement of grounds appear to me to show that the immigration officer, on what material I know not, correctly concluded that there was no genuine intention to stay for one week only. It may be that the return ticket was produced to her and revealed a return booking more than a week ahead or an open return. It was not exhibited to Mr Swati's affidavit, which one might have expected it to be if it showed a return booking one week ahead. It may be that the letter to Mr Naz was produced and indicated an intention to stay longer than a week, or it may be merely that the answers given by Mr Swati and

Mr Naz to her questions caused her to be dissatisfied as to the stated intention to stay for one week. There may have been other material. This court does not know and does not need to know.

Even had the grounds and affidavit stated a genuine intention to stay for one week only, this without more would not have been sufficient to justify a grant of leave. Where the complaint is that the immigration officer ought to have been satisfied, a grant of leave would in my view only be justified if sufficient further facts were deposed to or documents lodged which would enable a court to say 'in the light of these facts and this material, it is at least arguable that the decision was Wednesbury unreasonable' (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223). No such facts or documents were deposed to or lodged in the present case.

Thus far I have considered the case without reference to the fact that there is an established appeal procedure. It is well established in a long line of cases, the last of which is R v Chief Constable of the Merseyside Police, ex p Calveley [1986] 1 All ER 257, [1986] 2 WLR 144, that in such circumstances relief by way of judicial review will only be granted in exceptional circumstances. Counsel for Mr Swati submits that the question whether there are exceptional circumstances is irrelevant at the stage of application for leave. I disagree. An applicant for leave must show an arguable case that relief should be granted. Where, therefore, an appeal procedure exists, an applicant must, in my view, show not only an arguable case for relief, as must every applicant even if there is no appeal procedure: he must also show that there are special circumstances sufficient to render it arguable that there should be a departure from the normal rule. Unless he satisfies both limbs, he shows no arguable case for relief. It is impossible and would be legally wrong to define what are exceptional circumstances and what are not. Each case will depend on its own facts. It is of course clear that some circumstances are not even arguably sufficient, and that others equally plainly are. An example of the latter is to be found in R v Chief Immigation Officer Gatwick Airport, ex p Kharrazi [1980] 3 All ER 373, [1980] 1 WLR 1396. An example of the former would be the mere fact that the appeal procedure is only available on leaving the country. In the present case Mr Swati shows, in my view, no special circumstances of any kind.

There remains the contention, much pressed by counsel for Mr Swati, that the notice given to Mr Swati was defective in that it did not, so he says, give the reasons for the refusal of entry as required by the Immigration Appeals (Notices) Regulations 1984, SI 1984/2040. This contention is in my judgment without foundation. What have to be stated are the reasons for the refusal of entry. By the terms of the notice the immigration officer clearly stated on what ground, amongst several which might have applied, she had refused leave. That is the reason and the only reason for the refusal. It may be that the immigration officer was satisfied as to other matters or merely that, being dissatisfied on the first of the requirements in para 17 of HC 169, she felt it unnecessary to consider the remainder. It does not matter. Had the immigration officer said that she refused leave because she was not satisfied (i) that the applicant was genuinely seeking entry only for one week, (ii) that the applicant would be admitted to another country on leaving the United Kingdom at the end of a week (para 15 of HC 169), (iii) that the applicant had refused a medical examination, she would have given three reasons for refusal of entry instead of one. What counsel for Mr Swati is in effect seeking is not the reasons for the refusal but the reasons for the reasons for refusal and for that the 1984

regulations do not provide. They may be obtained under the appeal procedure, but they are not required at the stage of notice of refusal of entry.

The matter may perhaps be illustrated in this way. If the plaintiff claims in an action moneys due under a contract and the defendant pleads in answer accord and satisfaction, the judge, in rejecting the defence and giving judgment for the plaintiff, may say: 'I am wholly unsatisfied that there was satisfaction.' The latter is the reason for rejecting the defence. The judge's reason for being dissatisfied might be that he found the defendant a wholly untruthful witness and his reasons for that might include general demeanour, specific answers in cross-examination, specific conflict between the defendant's evidence and certain letters written by the defendant, admissions made in letters written by the defendant, positive evidence that the defendant was somewhere else at the time when he said he had made payments at a certain place and so on. These are, however, reasons for being dissatisfied. The reason for the decision is the dissatisfaction. To uphold the contention that reasons for the dissatisfaction should be given would in my view give an extended meaning to the words of the rule for which there is no warrant. It is plain from the wording of the rule that the primary, if not the sole, purpose of the rule is to enable the visitor to know why he was refused entry so that he may consider whether to appeal. A notice which sets out on which of several possible grounds, or for which among several possible reasons, he was refused so enabled him. He is not entitled in my view to have also the reasons for the reasons.

Accordingly I agree that leave should be refused. On other matters dealt with in the judgment of Sir John Donaldson MR, which I have had the opportunity to read in draft, I agree and have nothing to add.

DISPOSITION:

Application dismissed.

SOLICITORS:

ATM Abdullah & Co (for Mr Swati); Treasury Solicitor

Copyright notice: Crown Copyright

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