Last Updated: Wednesday, 30 July 2014, 15:15 GMT

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

Publisher United Kingdom: High Court (England and Wales)
Author High Court (Queen's Bench Division)
Publication Date 7 December 1988
Citation / Document Symbol [1989] Imm AR 211
Reference CO/1539/87
Cite as R v. Secretary of State for the Home Department, Ex parte Beatrice Allegret, [1989] Imm AR 211, United Kingdom: High Court (England and Wales), 7 December 1988, available at: http://www.refworld.org/docid/3ae6b61928.html [accessed 31 July 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 THE HOME DEPARTMENT ex parte BEATRICE ALLEGRET CO/1539/87

Queen's Bench Division

[1989] Imm AR 211

Hearing Date: 7 December 1988

7 December 1988

Index Terms:

Deportation -- EEC worker -- convicted of illegal importation of controlled drugs -- notice issued pursuant to s 3(5)(b) of 1971 Act after court declined to recommend deportation -- solicitors sought details of reasons additional to conviction on which Secretary of State relied -- none then given -- applicant ignored opportunity to appeal to Tribunal which would have resulted in explanatory statement -- whether Secretary of State obliged to give reasons for reasons -- whether approach of and decision by Secretary of State contrary to EEC Directives and natural justice. Treaty of Rome arts 48, 49: EEC Directive 64/222 arts 1, 3, 6: Immigration Act 1971 ss 3(5)(b), 15(2): HC 169 paras 139, 148, 151, 154, 156, 159.

Judicial review -- applicant when professionally advised elected not to pursue an appeal through statutory appellate authorities -- whether discretionary remedy of judicial review should be granted. Immigration Act 1971 ss 18, 19(1)(a), 23: Immigration Appeals (Procedure) Rules 1984 rr 4(7), 5, 8.

Held:

The applicant was a citizen of France. The case was determined on the basis that she was entitled to the protection of the EEC Directives on the free movement of workers. She was convicted in the United Kingdom of the illegal importation of a controlled drug, heroin. The Court declined to recommend her for deportation. At the end of her sentence the Secretary of State decided to initiate deportation proceedings against her pursuant to s 3(5)(b) of the 1971 Act. A formal notice was sent to her: it referred to her conviction and to the conclusion of the Secretary of State that she would pose a threat to the requirements of public policy if she were allowed to remain in the United Kingdom. That notice had been preceded by a letter to her solicitors indicating that deportation was under consideration and inviting representations on behalf of the applicant. In reply the solicitors had requested the Secretary of State "to provide us with full details as to why her continued presence in the United Kingdom is considered contrary to public policy" and, they wrote "we will then consider the matter." The Secretary of State did not respond to that request, save by the issue of the formal notice, the papers relating to which drew the applicant's attention to her rights of appeal and her opportunity to obtain free representation before the Immigration Appeal Tribunal.

She elected not to appeal to the Tribunal but applied for judicial review. It was argued on her behalf that the failure of the Secretary of State to give the information requested by her solicitors was contrary to article 6 of the EEC Directive: in so far as he had relied solely on her criminal conviction, his decision was contrary to article 3 of the Directive. It was a failure of natural justice not to respond to the enquiry by the solicitors and that was not cured by a late affidavit filed for the judicial review proceedings. For the respondent it was argued that the Secretary of State had complied with the requirements of domestic legislation and the rules made thereunder, into which the requirements of the Directive had been fully incorporated. The Secretary of State had no obligation to give reasons for reasons.

Held:

1. The Secretary of State's decision as recorded in the notice of intention to deport, was not erroneous in law. It stated a ground and gave a reason for that ground. There was no deficiency in the reason gauged by the yardstick of the Directives or by that of domestic legislation.

2. In the events which had happened and even if the Secretary of State had erred, the court would not grant discretionary relief, the applicant having chosen not to exercise her statutory rights of appeal. Following Swati there were no circumstances in the case so special as to require the court to exercise its discretion in her favour.

Cases referred to in the Judgment:

Ridge v Baldwin [1964] AC 40: [1963] 2 All ER 66.

Angelo Bonsignore, Cologne v Oberstadtdirektor of the City of Cologne (67/74) [1975] ECR 297; [1975] 1 CMLR 472.

The State v Jean Noel Royer (48/75) [1976] ECR 497; [1976] 2 CMLR 619. R v Bouchereau [1978] 1 QB 732: [1981] 2 All ER 924.

R v Secretary of State for the Home Department ex parte Santillo [1981] QB 778: [1981] 2 All ER 897.

R v Chief Constable of North Wales Police ex parte Evans [1982] 1 WLR 1155: [1982] 3 All ER 141.

R v Secretary of State for the Home Department ex parte Dannenberg [1984] 1 QB 766: [1984] Imm AR 33.

R v Chief Constable of the Merseyside Police ex parte Calveley [1986] 1 QB 424: [1986] 1 All ER 257.

Taj Mohd Swati v Secretary of State for the Home Department [1986] 1 WLR 477: [1986] Imm AR 88.

Counsel:

B Coles QC and Mrs M Sparrow for the applicant; J Laws for the respondent

PANEL: Rose J

Judgment One:

ROSE J. This is an application for judicial review to quash a decision to deport made by the Secretary of State for the Home Office on 30 July 1987. It is brought with leave of Simon Brown J, granted on 30 October of last year.

The applicant is a French national, now some 23 years of age. She came to the United Kingdom from France in 1981 in order to set up a new life. From that time, until June 1983, she lived and worked in the United Kingdom in a succession of jobs. In June 1983 she went to Israel and worked there until November of that year, when she returned to the United Kingdom and here remained, working, until September 1984.

At that stage, apparently to improve her understanding of Buddhism, she went to Nepal, where she stayed until April 1985. She then returned again to the United Kingdom, and she worked until November 1985, at which time she was working in a chocolate factory. She then went to India, she says, for a holiday. On 11 December 1985, she returned to this country and, on arrival at Heathrow Airport, she was arrested on suspicion of importing heroin and was served with a notice under section 7 of the Immigration Act 1971, which served as a basis for an application subsequently made at the Crown Court for her deportation, and she was charged with an offence relating to the importation of drugs.

To that offence, on 2 April 1986, she pleaded guilty at the Crown Court and was sentenced to two-and-half years' imprisonment. The Crown Court judge declined to make a recommendation for her deportation. She was released from that sentence in August 1987

Meanwhile, in January 1987, the Home Office had served upon her a notice of intention to deport her at the end of her prison sentence, that notice being pursuant to a notice of refusal of leave to enter, which had also been served on her on her arrival at Heathrow in the circumstances to which I have referred.

On 24 February 1987 an application was made for judicial review of that decision. Leave was granted, and on 10 June 1987 the matter came before McCullough J who, by consent, quashed the notice of refusal of leave to enter. On the same day, the Secretary of State wrote the letter which is at page 43A of the bundle, which states in its material part:

" . . . in view of the nature of Miss Allegret's offence, consideration is being given to her deportation under Section 3(5)(b) of the Immigration Act on the grounds of public policy. Any representations which you may wish to make . . . should be submitted as soon as possible."

That letter was addressed to the solicitors who were acting, at that time, for the applicant.

On 7 July (page 44 of the bundle) the solicitors wrote a letter to the Home Office, which said that this was the third time that there had been an attempt to deport Miss Allegret, bearing in mind that the first such occasion was said to be before the judge at Reading Crown Court, and:

"We consider any further action by the Secretary of State to be a breach of the rules of natural justice and such action will be defended strenuously not only through the English Courts but in Europe also . . .

As we are unaware of why our client's continued presence in the United Kingdom is considered contrary to public policy we cannot make any detailed representations on her behalf."

The letter goes on to refer to the applicant's status as an EEC national and the decision of the Crown Court judge, to which I have referred, and the letter concludes:

"If you care to provide us with full details as to why her continued presence in the United Kingdom is considered contrary to public policy we will then consider the matter."

The response to that letter was a letter on 28 July 1987, received by the applicant's solicitors on 30 July, saying:

"Further to Mr Durbin's letter to you of 10 June . . . formal notice of intention to deport, together with the relevant appeal forms, have been sent to the applicant.

"A copy of the notice is enclosed for your information."

The notice, which is at the heart of this application, is at page 15 of the bundle. It is a decision to make a deportation order under the Immigration Act. It is addressed to the applicant, and is in these terms:

"On 2 April 1986 at Reading Crown Court you were convicted of the illegal importation of a controlled drug and sentenced to 30 months imprisonment. The Secretary of State has considered all the circumstances of your case, including the offence of which you have been convicted, and is satisfied that you would pose a threat to the requirements of public policy if you were allowed to remain in this country. He has therefore decided that your deportation would be conducive to the public good on the grounds of public policy.

The Secretary of State has therefore decided to make an order by virtue of section 3(5) of the Immigration Act 1971 requiring you to leave the United Kingdom and prohibiting you from entering while the order is in force."

The notice goes on to direct the applicant's attention to her entitlement to appeal against the decision under section 15 of the Act, and as to the procedure to be followed with regard to such an appeal and as to the time limit in relation to such an appeal. The notice concludes with a reference to the United Kingdom Immigrants Advisory Service, a voluntary organisation which is funded under section 23 of the Act, which would advise the applicant, if she wished, in relation to the decision and to any possible appeal. That notice is not dated, but this matter has proceeded before me on the basis that it was effective from 30 July when it was received.

By virtue of rule 4(7) of the Immigration Appeals (Procedure) Rules 1984, the applicant then had 14 days in which to appeal against that decision. Such an appeal would have been to a Tribunal which, by virtue of section 19(1)(a)(i) of the Immigration Act 1971, would have been empowered to adjudicate on all the factual and legal issues raised in the matter. By virtue of section 15(2) of the Act, no deportation order could be made so long as such an appeal was brought and pending.

At all material times the applicant has been represented by solicitors and, intermittently, by counsel. It is, in my judgment, plain that, for whatever reason, the applicant allowed the period of 14 days prescribed by the statutory right of appeal to lapse, and she chose not to pursue her statutory right of appeal.

The Immigration Appeals (Procedure) Rules of 1984, (SI 2041), in rule 5, make express provision for late appeals, and rule 8 makes provision for written statements of fact to be provided by the Secretary of State to the appellant in the event of an appeal being pursued under the Act.

Rather than pursue such an appeal, the applicant, on 7 September 1987, made the present application for judicial review to quash the Secretary of State's decision of 30 July. As I have already indicated, leave was granted by Simon Brown J and a notice of motion for judicial review was served on 3 November 1987 and now comes before me, 16 months after notification of the Secretary of State's decision.

On behalf of the applicant, Mr Coles launches a three-pronged attack on the decision, although he rightly concedes that in some respects the prongs merge and the arguments overlap. First he submits that the decision was contrary to the requirements of article 3 of the European Commission Directive 64/221. Secondly he submits that the decision fails to comply with article 6 of that directive. Thirdly he submits that the Secretary of State's failure to answer the applicant's solicitor's letter of 7 July 1987 was contrary to the principles of fairness and natural justice. He further submits, with regard to the exercise of the discretion which this court has, that failure to exercise the statutory right of appeal should not preclude the exercise of discretion in the applicant's favour.

Before I turn to examine these submissions in a little more detail, it is necessary first to set out the legal framework within which they are made. The Immigration Act 1971 provides, by virtue of section 3, two possible routes whereby someone can be deported. Under subsection 5(b), such deportation can occur if the Secretary of State deems deportation to be conducive to the public good. Under subsection 6 of the same section, where someone has been convicted of an offence punishable with imprisonment, a recommendation for deportation can be made by a court empowered so do do, which of course includes the Reading Crown Court, before whom the applicant appeared. There is in the Act no definition of the phrase "conducive to the public good". Section 15 provides for the person against whom a deportation order is made to appeal to, as it would be in this case by virtue of subsection (7), an Appeal Tribunal. Section 19, as I have already indicated, provides in section (1)(a)(i) that the appeal shall be allowed if the Tribunal considers:

"(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or

(ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently."

It is common ground that such a Tribunal, on appeal to it, would be able to investigate factual disputes and consider matters of law including matters arising from the United Kingdom's obligations under the Treaty of Rome.

The immigration rules which, by virtue of rule 139, apply so far as the relevant rules are concerned, only to the extent permitted by Community law, contain in rule 148 a re-statement of the statutory powers of deportation under section 3 of the Act, to which I have already referred, in rule 151 a re-statement of the statutory right of appeal, to which I have already referred, and in rules 154, 156 and 159 the approach which is to be adopted in considering whether the deportation is the right course on the merits, the balancing of the public interest with compassionate circumstances of the individual's case, consideration of the particular circumstances of the individual's case, as listed in rule 156, those matters also having to be considered under rule 159 in cases of deportation on grounds conducive to the public good.

Article 48 of the Treaty of Rome makes provision for the freedom of movement of workers within the Community, and gives, in paragraph 3, the right to move freely within the territory of member States and to stay within a particular member State for the purpose of employment and to remain after having been employed in a particular member State.

It is convenient there to mention an argument advanced by Mr Laws that, having regard to the factual conflict, which appears on the face of the affidavits before me, as to how much and how often the applicant had worked in the United Kingdom, there was a factual dispute which would more happily be resolved by reference to the appellate tribunal than should be resolved by way of the processes of judicial review, and that, having regard to that dispute, he did not concede that the applicant was a person who worked in this country and, therefore, enjoyed the protection of article 48. As I have already indicated, however, in the course of argument, it seems to me that such factual dispute as there is on the affidavits before me relates not to the question of whether the applicant was a worker, but as to the question of how much she worked. For the purpose of my decision, I am prepared to assume that the applicant is a person enjoying the protection, as a worker, of article 48 of the Treaty of Rome.

Article 49 empowers the council, acting on proposals from the European Commission, to issue Directives. Directives pursuant to that power have been issued. It is common ground that, by virtue of section 2 of the European Communities Act, these directives have the force of law in the United Kingdom. Article 3 provides:

"1. Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned.

2. Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures."

. . .

Article 6 provides:

"The person concerned shall be informed of the grounds of public policy . . . upon which the decision taken in his case is based . . . "

Those articles relate to any national of a member State who resides in or travels to another member State of the Community to pursue an activity as an employed person or as a recipient of services, and that is by virtue of article 1. It is common ground that the word "measures" in article 3 includes a deportation order, such as is the subject of complaint in this case.

Against that background, I return to Mr Coles's submissions in a little more detail. His first submission, that the deportation decision is contrary to article 3, is on the basis that, on its face, the decision is based on the fact of the applicant's conviction, and there is no indication of any other matter on which the Secretary of State relies. The article (article 3) must be construed strictly and, in that connection, he relies on the decision of the European Court in the case of Bonsignore [1975] ECR 297, and in particular on the judgment of the court at page 307, which reads as follows:

"As departures from the rules concerning the free movement of persons constitute exceptions which must be strictly construed, the concept of 'personal conduct' expresses the requirement that a deportation order may only be made for breaches of the peace and public security which might be committed by the individual affected."

He relies also on the decision of the European Court of Justice in R v Bouchereau [1978] 1 QB 732. It is not necessary that I cite extensively from the judgment of the court in that decision, as its effect accurately appears in the headnote. The material part is that, under article 3(2), previous criminal convictions are relevant in so far as the circumstances which give rise to them are evidence of personal conduct constituting a present threat to the requirements of public policy, and there must be a genuine and sufficiently serious threat affecting one of the fundamental interests of society in addition to the disturbance of order which any infringement of the law involves.

Mr Coles also relies on the case of The State v Royer [1976] 2 CMLR 619, which underlines that there must be a grave and existing danger to the interests of society. And, submits Mr Coles, it is for the Secretary of State to spell out in the decision the grounds other than those, if there be others, apart from the conviction, and the conviction itself, he submits, is not, by virtue of article 3 to which I have referred, a sufficient basis to make the order which the Secretary of State made.

Mr Coles's second submission is based on article 6. To some extent this overlaps his argument with regard to article 3. He submits that because of the terms of article 6, the Secretary of State is obliged to inform the applicant of the grounds of public policy on which his decision is based, because, runs the argument, personal conduct of the applicant must be a grave and present threat. Having regard to the decision in Bouchereau, no sufficient reason appears in compliance with article 6 in the decision of the Secretary of State.

In addition to the case of Bouchereau, Mr Coles supports this part of his argument by reference to the case of R v Secretary of State for Home Affairs ex parte Santillo [1980] 2 CMLR 308. That was a decision in relation to article 9 of the Council's Directive, which deals with the situation where there is no right of appeal to a court of law or where such appeal may be only in respect of the legal validity of the decision. The article makes provision for the obtaining of an opinion from a competent authority as a precondition to a decision refusing renewal of a resident's permit or ordering the expulsion of the holder of a resident's permit. He, Mr Coles, refers to the opinion of Advocate General Warner who, at page 323 of the report, refers to article 6. Mr Coles submits that if reasons are requisite to be given in order to comply with article 9, a fortiori they need to be given in order to comply with article 6. The purpose of those reasons is to safeguard the position of the person against whom a deportation order is made, so that he or she will be able to see and, if appropriate, challenge the grounds on which the order is made. If grounds are not expressed, submits Mr Coles, that person is necessarily prejudiced.

Mr Coles further relies upon the decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte Dannenberg [1984] 1 QB 766. In particular he draws attention to the judgment of Dunn LJ at page 776E, which is as follows:

"A practical question then arises as to the form in which courts making recommendations for the deportation of EEC citizens should state their reasons so as to comply with Council Directive (64/221/EEC). When ex parte Santillo came back to the English courts this question was not considered by the Court of Appeal . . . In that case the recommendation had been made in the Crown Court, and the judge in the course of his sentencing remarks, referred to the gravity of the offences, the lack of a medical recommendation and the position of Santillo's family, and concluded by saying that his duty required him to recommend deportation 'in the interests of the community and the protection of the community.' It was not suggested that the judge should have said more.

However, in the Divisional Court Donaldson LJ said obiter, p 786:

'The second is the decision of the Court of Appeal . . . in . . . Nazari . . . which pointed out that no court should make an order recommending deportation without full inquiry into all the circumstances, gave some guidance on the principles involved and held that the court should give reasons for its decision if a recommendation is to be made. It would avoid subsequent argument if those reasons included some indication of the extent to which the current and previous criminal convictions of the accused have been taken into account and, in so far as this has been done, the light which, in the view of the court, such conviction or convictions throw on the likely nature of the accused's personal conduct in the future. The giving of reasons is not only in accordance with this decision, it is also consistent with the philosophy disclosed by article 6 of the directive which requires that the person concerned shall be informed of the grounds of public policy, public security, or public health upon which the decision taken by the Secretary of State in his case is based, unless it is contrary to the interests of the security of the state.'R v Nazari [1980] 1 WLR 1366 was not an EEC case, but in EEC cases a short statement of the reasons for the recommendtion should always be given on the lines suggested by Donaldson LJ. Copies of this statement should be sent both to the Home Secretary and to the prisoner. In the Crown Court this will present no difficulty. A copy of the transcript of the judge's sentencing remarks, including his reasons for making a recommendation for deportation, will be sufficient. In magistrates' courts where there is no shorthand writer, different considerations apply. We are aware that it is not the usual practice for justices to give reasons for their sentences, and we do not encourage them to do so, save in cases where they make a recommendation for the deportation of an EEC citizen. In such cases a brief statement of the reasons must always be given on the lines suggested by Donaldson LJ. The statement need not necessarily be made in open court, but should in any event be committed to writing, no doubt on the advice of the clerk, and be signed by the justices. Copies of it should be sent, together with the recommendation itself, as soon as reasonably practicable to the Home Secretary and to the prisoner."

In the light of that passage and the other authorities to which he draws my attention, Mr Coles submits that it is too late for the Home Secretary to state his reasons in a late affidavit, which is before me. Mr Coles submits that if there were reasons, apart from the conviction of the applicant, whether it be that she would be a drain on public funds or that she had insufficient links with the United Kingdom or that her character was in some way unstable and would adversely influence the community, then reasons of that kind ought to have been given on 30 July and it is not appropriate to advance them now.

Mr Coles's third submission, which he concedes is really closely interrelated with his second submission, is based on the unfairness of the Secretary of State's failure to answer the letter from the applicant's solicitors dated 7 July. It is common ground that the Secretary of State, albeit making an administrative decision, was under a duty to act fairly. Mr Coles poses the question: what was the genuine and serious threat affecting what fundamental interests of society which the Secretary of State had in mind? It must be the case, submits Mr Coles, that either the Secretary of State acted unfairly or he acted unreasonably on Wednesbury grounds in stating as he did in the decision of 30 July.

Mr Coles then submits, with regard to the exercise of the court's discretion, that if his arguments attacking the Secretary of State's decision are well-founded, I should order the quashing of the Secretary of State's decision in the exercise of my discretion, despite the failure to pursue the statutory appeal which is provided in the terms to which I have referred. He submits that there is no absolute rule which stands in the way of the applicant, and he relies on the views expressed by Professor Wade in the very recent edition of his book on Administrative Law (HWR Wade Administrative law 6th ed (Oxford) 1988) at pages 712 and 716 which, for present purposes, can perhaps not unfairly be summarised in the professor's own words, "that the established rule is still working behind a camouflage of discouraging language." Mr Coles submits that there is no issue of fact which needs to be resolved in the present case and, as I have already indicted, I am prepared to proceed on that basis.

So far as the exercise of discretion is concerned, Mr Coles invites my attention to R v Chief Constable of the Merseyside Police, ex parte Calveley and others [1986] 1 QB 424 and, in particular, to the judgment of Sir John Donaldson MR at page 433A:

"Mr Ronald Livesey, for the Chief Constable, submits that the application for judicial review was rightly dismissed, not upon the ground that it was premature, but because judicial review is not an available remedy when another avenue of appeal is open. In this context he referred to R v Epping and Harlow General Commissioners, ex parte Goldstraw [1983] 3 All ER 257 where, with the agreement of Purchase LJ, I said, at p 262:

'it is a cardinal principle that, save in the most exceptional circumstances, [the judicial review] jursidiction will not be exercised where other remedies were available and have not been used.'This, like other judicial pronouncement on the interrelationship between remedies by way of judicial review on the one hand and appeal procedures on the other, is not to be regarded or construed as a statute. It does not support the proposition that judicial review is not available where there is an alternative remedy by way of appeal. It asserts simply that the court, in the exercise of its discretion, will very rarely make this remedy available in these circumstances.

In other cases courts have asserted the existence of this discretion, albeit with varying emphasis on the relutance to grant judicial review. Thus in R v Paddington Valuation Officer, ex parte Peachey Property Corporation Ltd [1966] 1 QB 380, 400, Lord Denning MR, with the agreement of Danckwerts and Salmon LJJ, held that certiorari and mandamus were available where the alternative statutory remedy was 'nowhere near so convenient, beneficial and effectual.' In R v

Hillingdon London Borough Council, ex parte Royco Homes Ltd [1974] QB 720, 728, Lord Widgery CJ said: 'it has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy.' In ex parte Waldron [1985] 3 WLR 1090, 1108, Glidewell LJ, after referring to this passage, said:

'Whether the alternative statutory remedy will resolve the question at issue fully and directly; whether the statutory procedure would be quicker, or slower, than procedure by way of judicial review; whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellate body; these are amongst the matters which a court should take into account when deciding whether to grant leave by judicial review when an alternative remedy is available.'Finally, this approach is, I think, consistent with R v Inland Revenue Commissioners, ex parte Preston [1985] AC 835, where Lord Templeman said, at p 862:

'Judicial review process should not be allowed to supplant the normal statutory appeal procedure. The present circumstances are exceptional in that the appeal procedure provided by section 462 cannot begin to operate if the conduct of the commissioners in initiating proceedings under section 460 . . . was unlawful.'In the same appeal Lord Scarman said, at p 852:

'But cases for judicial review can arise even where appeal procedures are provided by Parliament. The present case illustrates the circumstances in which it would be appropriate to subject a decision of the commissioners to judicial review. I accept that the court cannot in the absence of special circumstances decide by way of judicial review to be unfair that which the commissioners by taking action against the taxpayer have determined to be fair. But circumstances can arise when it would be unjust, because it would be unfair to the taxpayer . . . '."Sir John Donaldson goes on at p 434G:

"I acknowledge the specialised expertise of such a tribunal" -- as was relevant in the case which the Master of the Rolls was then considering -- "but I think Mr Livesey's submission overlooks the fact that a police officer's submission to police disciplinary procedures is not unconditional. He agrees to and is bound by these procedures taking them as a whole. Just as his right of appeal is constrained by the requirement that he give prompt notice of appeal, so he is not to be put in peril in respect of disciplinary, as contrasted with criminal proceedings unless there is substantial compliance with the police disciplinary regulations."

At p 435A, the Master of the Rolls said:

"The substance of the matter is that, against the background of the requirement of regulation 7 that the applicants be informed of the complaint and given an opportunity to reply within days rather than weeks, the applicants had no formal notice of the complaints for well over two years. This is so serious a departure from the police disciplinary procedure that, in my judgment, the court should, in the exercise of its discretion, grant judicial review and set aside the determination of the Chief Constable."

That is indeed what the Court of Appeal did in that case.

The judgment of May LJ was also referred to by Mr Coles, at page 437, where the Lord Justice refers to the speeches of first Lord Hailsham and then Lord Brightman in Chief Constable of North Wales v Evans [1982] 1 WLR 1155. At 437F, May LJ quotes from Lord Hailsham of St Marylebone as follows:

"There are passages in the judgment of Lord Denning MR (and perhaps in the other judgments of the Court of Appeal) in the instant case and quoted by my noble and learned friend which might be read as giving the courts carte blanche to review the decision of the authority on the basis of what the courts themselves consider fair and reasonable on the merits. I am not sure whether the Master of the Rolls really intended his remarks to be construed in such a way as to permit the court to examine, as for instance in the present case, the reasoning of the subordinate authority with a view to substituting its own opinion. If so, I do not think this is a correct statement of principle. The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter on which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court."

May LJ then quotes from the speech of Lord Brightman, who refers to Lord Evershed's speech in Ridge v Baldwin [1964] AC 40, 96, and the reference to "a danger of usurpation of power on the part of the courts . . . under the pretext of having regard to the principles of natural justice". Lord Brightman continues:

"Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

Those, plainly, are some of the samples of discouraging language which Professor Wade had in mind in his treatise on this area of law.

Mr Coles, in the light of those authorities, and others to which I do not need to refer, submits that there are, in the present case, special circumstances, to adopt the phrase used by the Master of the Rolls in ex parte Calveley, which would justify the court in exercising its discretion in this case. He submits that these are as follows: that on the face of the order of the Secretary of State of 30 July, a matter of law appears, and the most appropriate way to proceed is by way of judicial review which is, he submits, more convenient, cheaper, and will reach a final determination more quickly than via the statutory appellate procedures which, in any event, will culminate, he submits, in an application for judicial review.

I do not accept that the statutory appellate procedures in the present case would necessarily culminate in an application for judicial review.

But, Mr Coles submits, one of the advantages enjoyed by an applicant for judicial review is legal aid. That apparently is not available for appeals to the appellate Tribunal, to whom the statutory right of appeal exists. However, as I have indicated, section 23 of the Immigration Act provides for the making of grants to voluntary organisations which provide advice and assistance to persons with rights of appeal under the Act, and it is common ground that, pursuant to that statutory provision, there has been set up with public money a body (The United Kingdom Immigrants Advisory Service) which is staffed, in part at least, by lawyers who advise those who seek that body's advice with regard to appeals.

So far as convenience is concerned, it is to be noted, as I said at an early stage in this judgment, that we are now 16 months on from the decision of the Secretary of State.

Mr Coles submits that a further special circumstance is that this is the third bite at the cherry, in effect, that the Secretary has had in relation to this applicant. No order was made before the judge of the Crown Court, and the previous decision was quashed by consent. The force of that submission is, in my judgment, militated against to some extent by the fact that the decision which was quashed by the Divisional Court was a decision to refuse entry, whereas the present decision is a decision to deport and, in my judgment, different principles apply.

It is for that reason that Mr Coles's submission that the Secretary of State did not take his present attitude on the last occasion when this matter was before the Divisional Court, does not carry the matter any further. He submits that as there is no factual matter to be determined by the Tribunal, then the matter of pure law is more satisfactorily and conveniently dealt with by this court by way of the procedures of judicial review.

In response to those submissions, Mr Laws submits that so far as the argument based on article 3 is concerned, it really is inconsistent with the argument advanced on article 6, because if it be the case that no sufficient ground is shown in the Secretary of State's decision for the purposes of article 6, it cannot at the same time be said that the reference to conviction in the decision affords grounds for complaint under paragraph 3.

What emerges is that so far as the terms of the Secretary of State's decision are concerned, the only ground to which he is referring is the ground of the conviction. Therefore, submits Mr Laws, the applicant knows the ground on which the decision is made and it is, therefore, not open to make a complaint under article 6. So far as article 6 is concerned, Mr Laws accepts that the purpose of the reasons which article 6 requires to be given is so that they can be challenged. But, he submits, article 6 adds nothing to the provisions of domestic law as contained in section 18 of the Immigration Act with regard to notices, and the contents of notices, which must include a statement of the reasons for the decision.

What appears at page 15 of the bundle, submits Mr Laws, is a proper statutory notice under the notices regulations made under section 18, and that statutory machinery is designed to provide precisely that which article 6 of the directive requires. In this regard, Mr Laws invites my attention to the decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte Swati [1986] 1 WLR 477 at p 482D, the judgment of the Master of the Rolls:

"On 16 October 1985 solicitors, instructed by Mr Naz on behalf of the applicant, 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 upon which relief was sought were that the applicant satisfied the requirements of paragraph 17 of HC 169 and that the decision of the immigration officer was based on mere suspicion and not on facts.

If the applicant were to obtain leave, he had at least to satisfy the court that he had an arguable case for judicial review, upon the grounds of illegality, 'irrationality', . . . or procedural impropriety: . . . Illegality has never been alleged and the only procedural irregularity suggested is that the notice given to the applicant inadequately explained why entry was refused. Subject to this point on the notice, the application must rest upon the alleged irrationality of the decision. The two grounds are, of course, interrelated, in that, if the applicant 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 upon the Immigration Appeals (Notices) Regulations 1984, 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': . . . Mr Blom-Cooper, appearing for the applicant, 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 upon 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 the statements made to me by X and Y.'

In support of this submission Mr Blom-Cooper referred us to two decisions of the South African courts . . . and one Australian decision . . . I do not refer to them, since I do 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 Immigration Appeals (Notices) Regulations 1984 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 upon 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 the applicant was genuinely seeking entry only for the limited period of one week, not only told the applicant why she was refusing him leave to enter, but also told him, by implication, that he had satisfied her on all other matters upon which he had to satisfy her in accordance with the rules.

"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': rule 8 of the

Immigration Appeals (Procedure) Rules 1984 . . . What Mr Blom-Cooper is seeking to achieve is a written statement of the facts relating to the refusal of leave to enter in additional to the reasons for that refusal. This can only be done by leaving the country and then giving notice of appeal."

That state of affairs, having to leave the country, is not one of course which arises in the present case.

Stephen Brown LJ, at p 487F, said:

"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 paragraph 17 of HC 169. I agree with Kennedy J" -- in an unreported case -- "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."

At page 490B, Parker LJ said this:

"There remains the contention, much pressed by Mr Blom-Cooper, that the notice given to the applicant was defective in that it did not, so he says, give the reasons for the refusal of entry as required by Immigrations Appeals (Notices) Regulations 1984. 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 upon 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 paragraph 17, 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 (paragraph 15), (iii) that the applicant had refused a medical examination, she would have given three reasons for refusal of entry instead of one. What Mr Blom-Cooper is in effect seeking is not the reasons for the refusal but the reasons for the reasons for refusal and for that the Notices 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."

In the light of those judgments, Mr Laws submits that it is quite plain that the rules do not require a statement of the evidential basis for the reasons of the Secretary of State or, as Parker LJ put it, "the reasons for the reasons". He submits that that is the domestic position, and article 6 of the Council Directive is entirely consonant with that domestic position. He accepts that in order to comply with article 6, it would not be enough for the Secretary of State merely to say, "You are being deported on grounds of public policy," or "You are being deported because your deportation would be conducive to the public good," to use the terminology of the domestic legislation. But, he submits, that the Secretary of State in saying that he is satisfied that a threat would be posed to the requirements of public policy if the applicant were allowed to remain in this country, and in referring to the conviction as being included in the circumstances to which he had regard, is giving adequate reasons for the purposes of article 6 as well as for the purposes of the domestic legislation.

So far as the exercise of the court's discretion is concerned, Mr Laws draws attention to the fact, which I referred to at an earlier stage in this judgment, that a decision no doubt reached on legal advice, bearing in mind that the applicant was represented by solicitors at the time, was plainly made not to pursue the statutory appeal procedure. Had the statutory appeal procedure been pursued, it would have been an inevitable consequence, having regard to the terms of the rules to which I have already earlier referred, that any information which the applicant did not have and which she needed, would have been forthcoming by virtue of the statements which the Secretary of State would have had to have made in writing in accordance with the rules.

So far as the exercise of discretion is concerned, submits Mr Laws, the applicant having, as it were, turned her back on the statutory right of appeal, it is not open to her now to come to this court to seek the exercise of its discretion in her favour. There are, submits Mr Laws, no exceptional circumstances in this case, such as the Master of the Rolls referred in the Swati case, which would justify the exercise of this court's discretion.

In my judgment the decision of the Secretary of State, as indicated on page 15 of the bundle, does not, in Mr Coles's terms, contain an error on its face. On the contrary, it states a ground. It gives a reason for that ground. There is, in my judgment, no deficiency in the reason which is there given when gauged by the yardstick of the directives issued under the Treaty of Rome any more than when gauged by the yardstick of the domestic legislation.

Even if I am wrong about that, even if it be the case that there is an error when gauged by either of those yardsticks, this is not, in my judgment, a case in which it would be appropriate to exercise the court's discretion in order to grant judicial review of that decision. I say that, first, because of the detailed statutory appellate procedure which is provided for dealing not only with questions of fact but specifically also with questions of law, secondly because there is a provision, to which I have referred, for dealing with late appeals to the Secretary of State under that statutory appellate procedure and, thirdly, because as matters now apparently stand, the applicant chose not to exercise her statutory rights of appeal. In my judgment, there are no circumstances in this case which are so special as to require that the court should exercise its discretion in the favour of this applicant in order to grant the relief which she claims.

For those reasons, this application fails.

DISPOSITION:

Application dismissed

SOLICITORS:

Pritchard Joyce and Hinds, Beckenham; Treasury Solicitor

Copyright notice: Crown Copyright

Search Refworld