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R v. Secretary of State for the Home Department, Ex parte 'T'

Publisher United Kingdom: Court of Appeal (England and Wales)
Author Court of Appeal (Civil Division)
Publication Date 25 March 1994
Citation / Document Symbol [1995] 3 FCR 1, [1995] 1 FLR 293, [1995] Fam Law 124, [1994] Imm AR 368
Cite as R v. Secretary of State for the Home Department, Ex parte 'T', [1995] 3 FCR 1, [1995] 1 FLR 293, [1995] Fam Law 124, [1994] Imm AR 368, United Kingdom: Court of Appeal (England and Wales), 25 March 1994, available at: http://www.refworld.org/docid/3ae6b6321f.html [accessed 23 November 2014]
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 HOME DEPARTMENT EX PARTE T

Court of Appeal (Civil Division)

[1995] 3 FCR 1, [1995] 1 FLR 293, [1995] Fam Law 124, [1994] Imm AR 368

Hearing Date: 25 March 1994

25 March 1994

Index Terms:

Immigration -- Children Act 1989 -- Contempt of court -- Three children granted exceptional leave to remain in UK -- Children's elder brother entering country illegally and applying for residence order in respect of children -- Secretary of State refusing to grant applicant asylum or exceptional leave to remain -- Whether removal of applicant before determination of residence order application amounting to contempt of court

Held:

In 1991 three unaccompanied Eritrean children aged 17, 11 and 8 arrived at Heathrow from Milan and claimed asylum. Asylum was refused but because of the civil war in Eritrea they were granted exceptional leave to remain for a limited period under the Home Office policy then in force with regard to Eritrean citizens. In 1993 T, the children's elder brother, arrived in England from France and claimed asylum. By that time the civil war in Eritrea was over. T was liable to be returned to France to make his application for asylum there. He then obtained leave ex parte to apply to a district judge in the Family Division for a residence order under the Children Act 1989 in respect of his youngest brother and sister, who were living in a refugee children's home. At that, the Home Office deferred removal and decided to deal with the applicant's asylum application substantively, and in August 1993 refused it. In October 1993 the special adjudicator dismissed T's appeal from that decision but did recommend that the Secretary of State might grant exceptional leave to remain for a period so as to reunite the family. The recommendation was rejected. Meanwhile the Secretary of State, who had been joined as a party to the residence order proceedings, had agreed that the applicant would not be removed from the jurisdiction while the proceedings were on foot. However, after the applications for asylum and exceptional leave had been rejected he changed his mind, and proposed to remove T within 14 days unless leave was obtained to move for judicial review. An application to the Family Division for an injunction restraining the Secretary of State from removing T until the proceedings were completed was dismissed. Leave to apply for judicial review was granted, but that was also dismissed. T appealed against both decisions. It was contended on his behalf that his removal before the determination of his residence order application would be an unlawful interference by the Secretary of State with the process of justice and would amount to contempt of court.

Held -- dismissing both appeals -- the court might entertain an application to invoke its wardship jurisdiction or powers under the Children Act made by or in respect of a person liable to removal, but the jurisdiction had to be exercised sparingly, because: (a) a wardship or Children Act order could not deprive the Secretary of State of the power conferred by the Immigration Act 1971 to remove or deport the child or any other party to the proceedings, although it might be something to which the Secretary of State should have regard in deciding whether to exercise the power; and (b) in cases where there was, apart from immigration questions, no genuine dispute concerning the child, the court would not allow itself to be used as a means of influencing the decision of the Secretary of State. It followed that the existence of a wardship order or a Children Act order could not of itself prevent the removal of the person with whom the child had been ordered to reside, and that, since removal in the face of an actual order would not be contempt, it could not be contempt to direct the applicant's removal while he was applying for one. Similarly, the powers of the Secretary of State were not qualified by reference to a general right of access to the court. The Immigration Act vested the power to decide questions of fact in the Secretary of State and the applicant could not insist that they be delegated to the court. Accordingly, the Family Division appeal must fail, and since there had been no contempt, it being impossible to say in the circumstances that the Secretary of State had acted unreasonably, the judicial review appeal must also fail.

Cases referred to in the Judgment:

A (A Minor) (Wardship: Immigration), Re [1992] 1 FLR 427, CA F (A Minor) (Immigration: Wardship), Re [1990] Fam 125, [1989] 1 FLR 233, [1989] 3 WLR 691, [1989] 1 All ER 1155, CA

Findlay v Matondo [1993] IAC 541, sub nom Re M (A Minor) (Immigration: Residence Order) [1993] 2 FLR 858

K and S (Minors) (Wardship: Immigration), Re [1992] 1 FLR 432 Li Kui Yu v Superintendent of Labourers [1906] TS 181

Mohamed Arif (An Infant), Re [1968] Ch 643, [1968] 2 WLR 1290, [1968] 2 All ER 145, CA

R v Secretary of State for the Home Department ex parte Khawaja [1984] 1 AC 74, [1983] 2 WLR 321, [1983] 2 All ER 765, HL

Raymond v Honey [1983] 1 AC 1, [1982] 2 WLR 465, [1982] 2 All ER 487, HL W (A Minor) (Adoption: Non-Patrial), Re [1986] Fam 54, [1986] 1 FLR 179, [1985] 3 WLR 945, [1985] 3 All ER 449, CA

Counsel:

Elizabeth Szwed and Rich Scannell for the applicant; Vera Mayer for the second child; Nicholas Carden for the Official Solicitor; Steven Kovats for the Secretary of State

PANEL: Staughton, Hoffmann LJJ, Sir Roger Parker

Judgment One:

HOFFMANN LJ: On 21 July 1991 three unaccompanied young Eritrean children arrived at Heathrow on a flight from Milan. They were Y, S and F, then aged 17, 11 and 8. They claimed asylum, saying that they had just come from Djibouti. The immigration officer did not believe them. He thought that they must have spent some time in Italy before taking the flight from Milan. Asylum was refused. But there was at the time a civil war in Eritrea and the policy of the Home Office was to grant Eritrean citizens who did not qualify for asylum exceptional leave to remain in this country for a limited period. The children were granted leave to stay here until February 1994 and that period has since been extended for another 3 years.

Two years later, on 20 May 1993, the children's elder brother, DT, arrived at Gatwick on a flight from Milan. He is 20. He had a forged Italian passport. The immigration officer was not deceived and returned him to Italy. On 8 July 1993 he arrived again, this time at Heathrow on a flight from Paris. He claimed asylum, saying that he had come from the Sudan. The immigration officer did not believe him. He thought that he must have spent some time in France. When asked why he had come, he said that life in England was better than in the Sudan. Here one could obtain education and work. In the Sudan there was nothing.

By this time the civil war in Eritrea was over. The Home Office had discontinued its policy of granting Eritreans exceptional leave. Whether he was a genuine political refugee from Eritrea or not, DT was liable to be returned to France to make his application for asylum there. This is in accordance with the Dublin Convention for Determining the State Responsible for Examining Applications for Asylum 1990. At first, this was what the Home Office decided to do. But on 23 July 1993 the applicant applied ex parte to a district judge in the Family Division for a residence order under the Children Act 1989 in respect of his youngest brother and sister. They were living in a refugee children's home in Hillingdon. The application was for an order that they should reside with him. At the time, of course, he had no home to offer them. He was held in Harmondsworth Detention Centre. Bail had been refused. But he said that if released he would propose to obtain accommodation for himself and the children from the London Borough of Hillingdon.

Certain people, such as parents and guardians, are entitled as of right to apply for residence orders. Others have to obtain leave. The applicant, as an elder brother, needed leave. Section 10(9) of the Children Act sets out various matters to which the court must have regard in deciding whether to grant leave, such as the applicant's connection with the child and any risk that the making of the application could in itself disrupt the child's life. There was little risk of this. The application was supported by a statement from the children saying that they wanted their elder brother to stay in this country. A social worker at Hillingdon thought that it would be good for their social and cultural orientation. So the district judge granted leave.

The applicant's solicitors then told the Home Office that any attempt to remove him while his application for a residence order was proceeding would be an interference with the process of justice and a contempt of court. Faced with this turn of events, the Home Office decided to deal with the applicant's asylum application on its merits instead of leaving it to the French. On 16 August 1993 the Secretary of State refused the application. On 8 October 1993 a special adjudicator at Hatton Cross dismissed an appeal from this decision. He did, however, recommend that in view of the applicant's age and the fact that his brothers and sister were living in this country, the Secretary of State 'could well' grant exceptional leave for a limited period so as to reunite the family. On 1 November 1993 the Secretary of State refused to accept this recommendation.

Meanwhile on 20 August 1993 there had been a directions hearing in the Family Division. The Secretary of State applied to intervene and was joined as a party. His counsel agreed that the applicant would not be removed from the jurisdiction while the proceedings remained on foot. The applicant filed his evidence in support. But on 3 November 1993, after the evidence was complete and the applications for asylum and exceptional leave had been rejected, the Secretary of State changed his mind. He said that unless leave was obtained for move to judicial review, he would remove the applicant after 14 days. The hearing of the residence order application had been fixed for 28 March 1994.

This change of course precipitated two separate applications which are now the subject of appeals. The first was an application in the Family Division proceedings for an interlocutory order restraining the Secretary of State from removing the applicant from the jurisdiction until the proceedings had been completed. This application was dismissed by Connell J on 3 December 1993. He refused leave to appeal. There is some question as to whether leave was necessary, but we need not discuss the problem because we have given leave to appeal so far as may be necessary.

After the dismissal of the application in the Family Division, there was an application for judicial review of the Secretary of State's decision not to grant exceptional leave and his directions for the applicant's removal. Leave to move was granted by Laws J on 12 January 1994, but the motion was dismissed by Judge J on 11 February 1994. Against that decision the applicant also appeals.

Central to the arguments for the applicant both by Miss Szwed in the Family Division appeal and by Mr Scannell in the judicial review appeal is the submission that the removal of the applicant from the country before the determination of his residence order application would be an interference by the Secretary of State in the course of justice which would amount to a contempt of court. Counsel for the Official Solicitor, who represented F, said that it was in his interest that his future residence should be considered at the 3-day hearing scheduled to begin on 28 March 1994, even though the implementation of any decision made at that hearing might have to be contingent on the Secretary of State changing his mind about the applicant's removal. He next said that such a hearing could not be adequately conducted if the applicant had already been removed. Building upon these propositions, Mr Scannell said that it would be an unlawful interference with the process of justice if the Secretary of State prevented the applicant from being present at the hearing.

In the last 25 years there have been a number of cases in which the court's jurisdiction in respect of children has been invoked in an attempt to inhibit or influence the exercise by immigration officers or the Secretary of State of the powers conferred by the Immigration Act 1971 or its predecessors. We were referred to Re Mohamed Arif (An Infant) [1968] Ch 643, Re F (A Minor) (Immigration: Wardship) [1990] Fam 125, [1989] FLR 233, Re A (A Minor) (Wardship: Immigration) [1992] 1 FLR 427, Re K and S (Minors) (Wardship: Immigration) [1992] 1 FLR 432 and Findlay v Matondo [1993] IAC 541. From these and other cases I think that the following propositions can be extracted.

(1) The court may entertain an application to invoke its wardship jurisdiction or powers under the Children Act 1989 made by or in respect of a person liable to removal or deportation.

(2) The jurisdiction will be exercised very sparingly because:

(a) a wardship or Children Act order cannot deprive the Secretary of State of the power conferred by the Immigration Act 1971 to remove or deport the child or any other party to the proceedings, although it may be something to which the Secretary of State should have regard in deciding whether to exercise the power; and

(b) in cases in which there is, apart from immigration questions, no genuine dispute concerning the child, the court will not allow itself to be used as a means of influencing the decision of the Secretary of State.

Proposition (1) follows from the general principle that every person within the jurisdiction is entitled to the equal protection of the law: see Lord Scarman in R v Home Secretary ex parte Khawaja [1984] 1 AC 74 at p 111, applied by Bracewell J in Findlay v Matondo (above) at p 545. Proposition (2) is stated in all the cases but the two reasons require further analysis. Reason (a) is contained in the judgment of Russell LJ in Re Mohamed Arif (above) at p 662. In particular, after noting that a wardship order normally conferred upon the court the power to decide where the child should live and made its consent necessary to the removal of the child from the jurisdiction, so that unauthorised interference or removal constituted a contempt, Russell LJ pointed out that this could not apply in a case in which a statute expressly conferred the right to remove the child from the jurisdiction upon someone else. In relation to the powers of the Secretary of State under the immigration legislation, he said:

'Any lawful deportation order affecting a ward must be outside the normal position which I have mentioned already, that a ward must not leave the jurisdiction without permission of the judge: indeed, it would override any existing express order of the judge in the wardship proceedings that the infant was not to depart from the jurisdiction.'It followed, said Russell LJ, that:

'The wardship of infants, in my judgment, has not and could not in law have any effect on the powers and duties of the immigration authorities so as to hamper them in any way in removing the infant from the jurisdiction . . .'These passages have since been cited by Butler-Sloss LJ in Re F (A Minor) (Immigration: Wardship) (above) and by Hollis J in Re K and S (Minors) (Immigration) (above). The reasoning seems to me, if I may respectfully say so, unassailable. The judge hearing an application in wardship or under the Children Act is not entitled to have regard to immigration policy. Even if the Secretary of State has been joined as a party to the application, the judge must be guided solely by the interests of the child. It would therefore make no sense for his decision to prevent the Secretary of State from exercising a power based on altogether different considerations.

Miss Szwed and Mr Scannell submitted that these propositions of law had been qualified by statements in later cases to the effect that the wardship jurisdiction should not be invoked 'to clog or fetter the discretion given by Parliament to immigration officials and the Secretary of State': see Parker LJ in Re A (A Minor) (Wardship: Immigration) (above) and Butler-Sloss LJ in Re F (A Minor) (Immigration: Wardship) (above). They said that such remarks necessarily implied that if a wardship order were made, it would clog or fetter the discretion of the Secretary of State. It must therefore follow that if, in exceptional circumstances, such an order was made, it would prevent the Secretary of State from exercising his immigration powers.

I think that this is reading far too much into what Butler-Sloss and Parker LJJ said. Clearly, any order made or views expressed by the court would be a matter to be taken into account by the Secretary of State in the exercise of his powers. If he simply paid no attention to such an order, he would run the risk of his decision being reviewed on the ground that he had failed to take all relevant matters into consideration. The remarks in question were in my view directed to my proposition (2)(b), namely that the use of the court's jurisdiction merely to attempt to influence the Secretary of State by obtaining findings of fact or expressions of opinion on matters which are for his decision is an abuse of process.

Mr Scannell also submitted that applications under the Children Act were for this purpose more analogous to adoption than to wardship. In adoption cases it has been held that the order does have the effect of preventing the Secretary of State from exercising immigration powers. Nevertheless, the court is entitled to make an adoption order if in all the circumstances it thinks fit, the first consideration being the need to safeguard and promote the welfare of the child: see Re W (Adoption: Non-Patrial) [1986] Fam 54, [1986] 1 FLR 179. But the reason why adoption orders can affect immigration powers is that they alter the status of the child. They can have the effect of conferring upon the child a right of abode which makes it immune from removal. There is no analogy with Children Act orders, which do not affect status.

It is true that in all the cases on wardship to which I have referred, the Secretary of State was joined as a party and submitted that no order should be made. The guidance given by the Home Office to the Immigration Enforcement Section on intervention in cases concerning children is as follows:

'13. The Family Court will generally attach much more weight to the child's welfare than to irregularities surrounding the immigration status of the child or a parent. Where however it is clear that the court proceedings are designed purely to enable the child or the parent to evade immigration control, consideration may be given to instructing the Treasury Solicitor with a view to intervention in the proceedings. There must be evidence, not just a suspicion, that there has been a serious attempt to circumvent immigration control, and decisions to intervene must be taken at not less than SEO level.'It therefore appears to be normal policy in such cases to intervene. Such a policy is understandable, having regard to, first, the potential relevance of the court's views as a matter to be taken into account by the Secretary of State; secondly, the desirability of comity between executive and judiciary; and thirdly, the desire of the Secretary of State to fulfil this country's obligations under Art 8 of the European Convention. But there is no legal necessity for the Secretary of State to intervene and have the application dismissed before he is able to exercise his immigration powers. There may well be cases in which intervention would serve no purpose. The court and the Secretary of State are performing different functions. It does not follow that because the court, applying its criteria of the welfare of the child, refuses to dismiss the application, the Secretary of State should not exercise his powers of deportation or removal. He may therefore take the view that whatever the court may decide about the welfare of the child, policy requires removal or deportation. Provided that such a decision is not irrational or procedurally irregular, the court cannot declare it unlawful.

Mr Scannell submitted that having elected to intervene, the Secretary of State could not kick over the table in the middle of the game and remove the applicant before it had come to an end. In my judgment the application to be joined as a party to the proceedings did not amount to an election to abide their outcome. The Secretary of State after seeing the evidence took the view that the application was not made bona fide in the interests of the children but in an attempt to further the applicant's own interest in remaining in this country. It is true that this was a question which could have been submitted to the decision of the court on an application to terminate the proceedings as an abuse of process, as in Re (A Minor) (Wardship: Immigration) (above). The Secretary of State might have chosen to do so here, but he was not obliged to do so. The immigration Act vests the power to decide such questions of fact in the Secretary of State and the applicant cannot insist that they be delegated to the court.

If I am right in my view that the existence of a wardship order or Children Act order in respect of a child would not in itself inhibit the power of the Secretary of State to order the child's removal, it must also follow that it would not in itself prevent the removal of the person with whom the child had been ordered to reside. And if removal in the face of an actual order would not be a contempt of court, I cannot see how it can be a contempt to direct the applicant's removal while he is applying for one. Mr Scannell said that in the latter case, the Secretary of State would be interfering with the course of justice. It was, he said, a fundamental principle that everyone should have unimpeded access to the courts. He drew our attention to the statements of principle by Lord Wilberforce in Raymond v Honey [1983] 1 AC 1 at p 10; first, citing Lord Russell of Killowen CJ in R v Gray [1900] 2 QB 36, at p 40, that:

'. . . any act done which is calculated to obstruct or interfere with the due course of justice, or the lawful process of the courts, is a contempt of court',and secondly, that:

'. . . to inhibit suitors from availing themselves of their constitutional right to have their legal rights and obligations ascertained and enforced by courts of law could amount to contempt of court.'These general propositions, which can be reinforced by reference to Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, are not in dispute in these proceedings any more than they were in Raymond v Honey (above). In that case, the issue was whether the right of access to the courts which the applicant wished to assert had been removed or restricted by the Prison Rules 1964. In the present case, the question is the extent to which the applicant's right to resort to the courts of this country is restricted by the Immigration Act 1971 and the powers which it confers upon the Secretary of State.

It seems to me even more difficult to contend that the powers of the Secretary of State are qualified by reference to a general right of access to the courts than that they are by reference to the rights of children to the parens patriae protection of the Crown. Mr Scannell's proposition, if true, must apply to all litigation and entitle everyone who had a bona fide wish to litigate in the English courts to enter the country and remain here for that purpose. In my view it is quite impossible to read such a qualification into the Immigration Act. No doubt a wish to litigate in an English court would in many cases be a proper ground for an application to the Home Office for leave to enter or remain. One can imagine cases in which it would be irrational to refuse leave to someone who applied on such a ground. But the Secretary of State is entitled to exercise his discretion on the facts of each case. The issue of a writ is not an automatic passport to this country.

Mr Scannell relied upon a decision in the Supreme Court of the Transvaal in Li Kui Yu v Superintendent of Labourers [1906] TS 181. The Superintendent was held in contempt because he had imprisoned and deported an indentured Chinese labourer at a time when he knew that an application for habeas corpus was about to be made. But I think it is sufficient to point out, first, that the Superintendent had no power whatever to deport the applicant and, secondly, that the order would have required him to produce the applicant to the court. In this case, the Secretary of State has the power of removal and the residence order, if made, would have no effect on that power.

It follows in my judgment that the Family Division appeal must fail. I have not considered the question of whether, if the existence of the proceedings made the applicant's removal unlawful, the court would have power to grant an injunction against the Secretary of State or would be confined to making a declaration and, if so, whether a declaration could be made in the interlocutory proceedings which came before Connell J. These points do not arise because I think that the judge was right in deciding that the mere existence of the proceedings could not make the removal unlawful. The same reasoning means that the principal ground for the judicial review appeal, namely that the Secretary of State's decision involved a contempt, must also fail. In addition, Mr Scannell submitted to the judge that the decision was unreasonable. He formally maintained this submission before us but realistically did not elaborate upon it. In my view it is impossible to say that the Secretary of State has acted irrationally or failed to have regard to relevant matters. He has taken account of the existence of the Family Division proceedings but formed the view that they are not a sufficient reason to delay implementing the applicant's removal. There was material upon which he was entitled to form this view and in my judgment it cannot be challenged.

I acknowledge my indebtedness to Miss Szwed, Mr Scannell and Mr Kovats (who appeared for the Secretary of State) for their careful written submissions and oral argument. But I am bound to say that this appeal has been conducted with the profligacy of representation which seems characteristic of child proceedings funded by legal aid. The plaintiff had separate counsel in the Family Division and judicial review appeals, although the substantial point in each was the same. The two children were separately represented, one by her own solicitors and one by the Official Solicitor. Both instructed counsel to appear, although neither said anything which could not have been equally effectively communicated to the court in a letter or affidavit.

I would dismiss both appeals.

DISPOSITION:

Order accordingly.

SOLICITORS:

Jane Coker & Co for the applicant; Goodman Ray for the second child; Official Solicitor; Treasury Solicitor

Copyright notice: Crown Copyright

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