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R v. Immigration Appeal Tribunal, Ex parte M.H. Hague; R v. Immigration Appeal Tribunal, Ex parte L. Ruhul; R v. Immigration Appeal Tribunal, Ex parte N. Rahman

Publisher United Kingdom: High Court (England and Wales)
Author High Court (Queen's Bench Division)
Publication Date 21 November 1985
Citation / Document Symbol [1986] Imm AR 27
Cite as R v. Immigration Appeal Tribunal, Ex parte M.H. Hague; R v. Immigration Appeal Tribunal, Ex parte L. Ruhul; R v. Immigration Appeal Tribunal, Ex parte N. Rahman, [1986] Imm AR 27, United Kingdom: High Court (England and Wales), 21 November 1985, available at: http://www.refworld.org/docid/3ae6b64e4.html [accessed 30 August 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.

Queen's Bench Division

 

[1986] Imm AR 27

Hearing Date: 21 November 1985

21 November 1985

Index Terms:

Children -- admission for settlement -- sponsors settled in the United Kingdom on 1 January 1973 -- sons aged between 18 and 21 applied for entry clearance -- whether immigration rules at dates of application applied or rules in force before the coming into force of the Immigration Act 1971 -- Immigration Act 1971 -- s 1(5): Cmnd Paper 4298 of 1970 para 40: HC 79 para 44: HC 394 para 47.

Held:

The applicants were all children of citizens of Bangladesh. Their fathers were settled in the United Kingdom on 1 Janaury 1973, the date on which the Immigration Act 1971 came into force. Section 1(5) of the Act laid down that any immigration rules made under it "shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and to their wives and children are not, by virtue of anything in the rules, any less free to come and go from the United Kingdom that if this Act has not been passed." Under the rules, in force before the 1971 Act (Command 4298) there was a discretion to admit, as children, unmarried dependent sons aged over 18 but under 21. That discretion survived in the early rules made after the 1971 Act, but was not embodied in the later rules, HC 394 of 1980.

When the applicants sought entry clearance, the then current rules were HC 394. They were all unmarried but were all aged over 18 although under 21. The entry clearance officer applied rules as laid down in HC 394. The applications were refused. The refusals were upheld on appeal. The applicants sought judicial review; they claimed, relying on s 1(5) of the Act, that their applications should have been considered not under HC 394 but in accordance with the more favourable earlier rules.

Held:

That on a proper interpretation s 1(5) of the Immigration Act 1971, persons in the position of the applicants were entitled to have their cases decided in accordance with the rules in force immediately before the Act came in force, if these rules are more favourable to them than rules in force at the date of their applications.

Cases referred to in the Judgment:

R v The Chief Immigration Oficer, Heathrow Airport ex parte Salami Bibi [1976] I WLR 979; 3 All ER 843.

Visa Officer Islamabad v Saeedan [1983] Imm AR 131.

R v Secretary of State for the Home Department ex parte Dominic Omosanya

Ademuyiwa (QBD 24 October 1985) see p 1 above.

Counsel:

J Platts Mills QC and GM Hoque for the applicant Haque.

N Alsolaimani for the applicant Rohul.

MV Ahmed for the applicant Rahman.

A Collins QC for the respondent.

PANEL: Taylor J

Judgment One:

TAYLOR J. These are three applications for judicial review of decisions by entry certificate officers in respect of Bangladeshi young men wishing to enter the United Kingdom together with their families. It is common ground, for the purposes of the argument addressed in this case -- although there may be distinctions in the case of Rahman to be explored later -- that each of these three applicants, Mr Hamidul Hague, Mr Ruhul and Mr Rahman, were, at the times when each was applying for an entry certificate, under 21 but over 18. It is also common to each applicant that his father was settled in the United Kingdom before the coming into force of the Immigration Act, 1971.

Dealing individually with the three cases, the relevant dates are as follows. The applicant Hague is now 24, he applied for an entry certificate on 22 Septemebr 1980 when he was 19. He wished to enter the Unted Kingdom with his mother and two sisters. On 11 March 1982 the entry certificate officer who was satisfied of the relationship of all those applicants to the father settled in the United Kingdom, allowed entry certificates in respect of the mother and the sisters; however he refused an entry certificate to the applicant basing himself on paragraph 47 of HC 394.

In Mr Haque's case there was an Appeal from the refusal to an adjudicator which was allowed, on 18 September 1982. The learned adjudicator, took the view that HC 394 was not the relevant set of rules to be considered, and the appropriate rules were those made prior to the 1971 Act, Command Paper 4298 of 1970.

There was an appeal against his decision, and on 17 March 1983 the Immigration Appeal Tribunal allowed the appeal by the Home Office. It is to that decision of the Immigration appeal Tribunal that challenge is made, and the point at issue is one that is common to each of these three cases.

So far as the applicant Ruhul is concerned, he is now 25. He applied in the same way as Haque to gain an entry certificate to come to the United Kingdom on 30 July 1980 when he was 19. Again the entry certificate officer was satisfied as to his true relationship to his father settled in the United Kingdom but he referred the entry certificate basing himself, in the same way, on paragraph 47 of HC 394.

On 20 January 1983 an adjudicator allowed his appeal. On 24 January 1984 the Immigration Appeal Tribunal allowed an appeal against that adjudciator's decision and remitted the case to another adjudicator to hear the matter on merits. On 15 March 1984 on a second adjudication, the adjudicator dismissed the applicant's appeal and, on 20 May 1984, his application for leave to appeal to the Immigration Appeal Tribunal against that dismissal was refused.

Finally, Mr Rahman is now 24. He applied on 7 August for an entry certificate which was refued in the same circumstances and on the same basis as the application in the other cases, excepting that in his case there may well have been some issue as to his true relationship. The same point of law arises in his case in the other two.

On 9 November 1979 an adjudicator dismissed his appeal on paper application, and on 3 April 1980 the Immigration Appeal Tribunal refused his applicant for leave. That was the end of that application in his case, but he then applied to the entry certificate officer again, on 27 April 1982, and was again refused. On 6 July 1983 an adjudicator dismissed his appeal. He took the matter to the Tribunal on 7 December 1983. The Tribunal remitted it to an adjudicator, who dismissed the application and a further application for leave to appeal to the Immigration Tribunal on his behalf was also refused.

The point which arises as a matter of law in each of these three cases concerns the true construction of section 1(5) of the Immigration Act 1971. Having under a previous subsection provided for rules bythe Secretary of State as to the practice to be followed in the administration of the Act regulating the entry and stay in the United Kingdom of persons not having a right of abode, subsection(5) continues:

"The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act has not been passed."

Mr Platts Mills has appeared on behalf of the first applicant, and his arguments have been adopted by counsel appearing for the other two applicants. He contends that the effect of that section was to require the Immigration Authorities to look at the situation prior to coming into force of the Act, both in terms of any statutory provisions and any rules which were then in force, and then to consider those rules which had been created under the new Act and see whether those rules purported to render those mentioned in the subsection any less free to come and go into the United Kingdom than before. If the new rules did have that effect, he says that the old rules, or the situation regarding freedom to come and go laid down in the old rules, must be applied and the fresh rules cannot permit any less favourable position to be achieved.

It is therefore necessary to see what rules were prior to the Immigration Act and subsequent to it. Prior tot he Act the relevant rules were to be found in CP 4298 and so far as these applicants are concerned, paragraph 40 of those rules. They came into force from February 1970 under the previous legislation, that is to say, the Acts of 1962 and 1968 and they remained in force until the 1971 Act repealed the previous statutes.

Paragraph 40 so far as is relevant, provides as follows:

"As a general rule persons of 18 or over must qualify for admission in their own right, for example as the holders of employment vouchers or as students.

But exceptions may be made. For example, it will be proper to admit an unmarried and fully dependent son or unmarried daughter under 21 who formed part of the family unit overseas if the whole family is coming to settle in the United Kingdom."

There has been no dispute in the present case that each of the applicant's unmarried; that each eas under 21 but over 18 at the time of his application that each formed part of the family unit overseas (assuming in the case of Mr Rahman the facts were to be found as he stated them) and that he whole family was coming to settle in the United Kingdom. Accordingly, if that rule was the correct guide, it is accepted that each of these applicants, as a matter of discretion, could, within the power of the entry certificate officer, be admitted. Indeed, the rule says it would be proper to admit such a person.

The rule which replaced that, under the newe Act, was in the first instance HC 509. That is in identical terms to HC 79, and the relevant rule in HC 79 is paragraph 44. That reads as follows:

"Generally children aged 18 or over must qualify for admission in their own right; but subject to paragraphs 39 and 40 an unmarried and fully dependent son under 21" -- I leave out irrelevant words -- "who formed part of the family unit overseas may be admitted if the whole family are settled in the United Kingdom or are being admitted for settlement."

Mr Ahmed, on behalf of Rahman, in his only supplementary point to the arguments of Mr Platts Mills, points out that rule continued the favourable consideration for dependent sons under 21 which had existed under the previous rule, CP 4298. However, HC 79 was replaced later by HC 394, and in particular paragraph 47 thereof. This is the paragraph on which in each of these cases, the entry certificate officer relied. It states as follows:

"Children aged 18 or over must qualify for settlement in their own right unless there are the most exceptional compassionate circumstances, (in which case their case should be considered under paragraph 48). Special considerable may, however, be given to fully dependent and unmarried daughters over 18 and under 21 who formed part of the family until overseas and have no doubt other close relatives in their own country to turn to."

It is to be noted that in that paragraph no special considerations is given to dependent, unmarried sons under 21. They fall to be considered in the first sentence, 'children aged 18 or over must qualify for settlenent in their own right unless there are the most exceptional compassionate circumstances."

It is not suggested by Mr Platt Mills or counsel appearing for the other applicants here that exceptional compassionate circumstances could be said to exist in these cases. Therefore, if that rule is the appropriate one to apply, the applicants here would be in grave difficulties. Therefore, there is a marked difference in the approach indicated by CP 4298 and maintained in HC 79 against that substituted in HC 394.

Mr Platts Mills says the only proper construction of section 1(5) is that which I have already summarised from his argument. He says that the rule pre-1971 Act, and any rules subsequent to that Act msut be compared, and if the subsequent rules, are found to be less favourable then the old rule must prevail. In other words, he says that the status quo at the time the

Immigration Act, 1971 came into force, is the lowest point to which any application for entry can be reduced. Any change in the rules after that can be to his benefit.

In support of that submission he cites R v The Chief Immigration Officer, ex parte Salamat Bibi [1976] 1 WLR 979. That was a case in which the applicant needed to have an entry certificate but there was not one. The rules both before and after the Act were at one in requiring that there should be an entry certificate. Therefore a comparison of those rules made no difference to the position of the applicant. So the case did not turn upon a finding that the later rules were less favourable to the appliant than the former rules. But Lord Denning MR at p 983 gave a useful analysis of the correct approach.

Having indicated that the applicant relied upon section 1(5) of the Act the learned Master of the Rolls continued:

"I do not think that section gives any right to the wife and children to come in without entry clearance. The section is not dealing with rights at all. It is only dealing with the rules which are to be made by the Secretary of State. It says that the rules for wives and children who came after 1 January 1973 are not to be any more restrictive than the previous rules. So we have to look at the rules applying before January 1973 and the rules applying afterwards. Before Janaury 1973 the rules were contained in CP 4298."

The learned Master of the Rolls then went on to deal with the relevant rule under that Command Paper concerning wives. He then considered HC 79 which was the set of rules that followed the Act, and indicated that the two sets of rules contained the same restriction to the requirement of a current entry clearance certificate.

Geoffrey Lane LJ as he then was, at the foot of page 987, adopted the same approach. From those judgment Mr Platts Mills draws authority for the proposition that the right approach is to compare the rules and if the later rules are less favourable, then the previous rules, although repealed with the statutes under which they were made by the 1971 Act, have to be taken as appropriate standard to apply.

Mr Collins, appearing on behalf of the Immigration Appeal Tribunal accepts that that approach, if correct, would involve that the entry certificate officer here had fallen into error. But he contends that the remarks which were made were obiter (for the reasons I have already indicated) and are wrong.

Mr Platt Mills referred me to another recent decision, not yet reported of Farquharson J I have a transcript of that dated 24 October 1985. It was a case concerning an applicant who wished to enter the United Kingdom as a returning resident. The question again arose as to the application of section 1(5) of the Immigration Act and the approach to be taken as regards rules prior to that Act and rules following it.

Having cited the subsection, the learned judge said; "The applicant benefits from this provision, and when his case as reviewed regard was had to Command Paper 4298 which embodied the relevant instructions in 1970". He then considered those provisions and the provisions which followed the Act to HC 169.

The learned judge said of the later rules: "Those rules seem at least as beneficial to the applicant as the ones that were current in 1969 and I consider them as being the relevant ones to apply."

It seems therefore that the learned judge was adopting the approach indicated by Lord Denning MR in the passages I have already cited. It would also appear from the form of his judgment that no argument was address to him on the basis that, because Command Paper 4298 had been in effect repealed it, should no longer play any part in a consideration of the criteria to be applied under the later rules.

Mr Platts Mills regaled me with a view of the rights of foreign born wives of British subjects, going back as far as 1622, and of all the legislation on the subject since then. With the greatest respect to him, although I found that interesting as a background to his argument, in the end it seemed to me it was the argument on the most recent provisiosn which had to be considered on its merits. That I have summarised.

Mr Collins submits that the key to the proper interpretation of section 1(5) of the Immigration Act is in the phrase: "Any less free to come into and go from the United Kingdom. He submits that those words relate to legal entitlements as of a right. He distinguishes an entitlement to come as of right as a legal entitle from one which may turn upon the exericse of discretion, having regard to the particular factual situation presenting itself to the officer in question.

He says all the subsection seeks to do is to indicate that nothing shall be put into any rules rendering the legal right to come and go of wives and children of Commonwealth citizens settled in the United Kingdom, less favourable than that to which they were entitled by statute prior to the passing of this Act. He says that the subsection does not operate to prevent changes in the rules relating to guidelines for the exercise of discretion. Accordingly, all one has to look at when considering matters of discretion under rules subsequent to this Act is what those rules themselves say. One does not have to look back and see what discretionary opportunities there might have been under previous rules so as to see whether the discretion given by later rules is more or less favourable to those seeking to enter the United Kingdom than before. It is only that which was statutorily provided by way of freedom to come and go in the past that cannot be in any way limited in rules made subsequently.

He also indulged in some history, although not going back quite as many centuries as Mr Platts Mills. He reviewed the statutory provisions under the 1962 Commonwealth Immigration Act and subsequent Acts, in particular reference to the legal entitlement of children or dependants to come to the United Kingdom. He pointed out that under the 1962 Act, by section 2, the prohibition of refusal of admission applied only to children under 16. That was continued under the 1968 Commonwealth Act by section 2(a). There was then the Immigration Appeals Act, 1969, which introduced entry certificates.

He then proceeded to refer to the comparative provisions of the rules starting with Command Paper 4298 and going through HC 79 and HC 394. The effect of all that says Mr Collins, is that so far as legal entitlement was concerned, the statutory provisions before the Immigration Act, 1971 benefited only children under 16. Any discretion to admit children of under 21 but over 16 was the subject of rules and the exercise of discretion by the immigration officers. He submits that if one looks through the rules, one finds that there is nothing which impinges on the right of a child under 16 to come. That is enshrined in the statutes, but there had been changes in the discretionary criteria to admit children who are of the age of 16 upwards to 21.

Mr Collins also referred me to a decision relied upon by the Immigration Appeal Tribunal in one of these cases, namely Visa Officer Islamabad v Saeedan [1983] Imm AR 131. There the apparent conflict between CP 4298 and subsequent rules was in point. The approach adopted by the Immigration Appeal Tribunal was to lay emphasis upon the final words of section 1(5) of the Immigration Act, 1971. Those words read "than if this Act had not been passed."

I quote from p 133 of the decision of the Tribunal:

"Section 1(5) provides that they shall not be less free 'than if this Act had not been passed.' What would the position have been if the Act had not been passed? Both HC 394 and the earlier rules conferred admissibility upon such children which was not conferred by the statutes themselves. The rules under which they obtained such admissibility were made by the Secretary of State. In the case of CP 4298 they were not, strictly speaking, rules at all in that there was no provision in the 1962 Act requiring or authorising thhe Secretary of State to make rules." -- Then there is a citation from that Act. -- "The later rules made under the 1971 Act were made under section 3(2) of the Act and laid down a procedure which had to be followed. They had to be approved by Parliament, thus it might be said to have been easier for the Secretary of State to change the rules under the earlier legislation than under the 1971 Act, and he could at any time have changed the rules relating to Commonweath children over the age of 16 as they were in act changed by paragraph 47 of HC 394. Indeed he could have made a rule even less favourable to such children than this paragraph. So it was not the passing of the 1971 Act which was responsible for the rules becoming less favourable and such children becoming less free to come to this country. For these reasons we consider the adjudicator wrongly consrued section 1(5) and the respondent's appeal should have been considered under paragraph 47 of HC 394."

The crux of that approach was that it was not the passing of the 1971 Act which resulted in the less favourable treatment. It was the change in the discretionary rules. Mr Collins adopting the dispassionate and helpful approach which he always does, expressed his own submission on the matter to be that that was not the strongest argument that he could muster in favour of supporting these decisions. I agree with him that this argument is flawed. I do not see any reason why the final words of the subsection -- "that if this Act, had not been passed" -- should be read in any other way then to indicate a comparison in point of time with the state of the rights and option of would-be entrants before the Act was passed, and a similar surveillance of their rights and options afterwards.

Perhaps the correct way to read those final words -- "than if this Act had not been passed" -- is as if they read "than if this Act hd not said that the rules shall be so framed".

The subsection prescribes how subsequent rules shall be framed, and what it clearly says is that wives and children are not to be less free to come and go by virtue of anything in those rules -- whether they be of discretionary or of an entitlement nature -- that if this Act had not been passed. It seems to me that the proper interpretation of that subsection is that which has been contended for by Mr Platts Mills; the subsection contemplates that following the enactment of this statute, those who wish to enter the United Kingdom under this provision shall not be in any worse position than they were at the time prior to its coming into force. That takes account not only of status of anything in the rules" it also takes into account any discretionary options that they may have had as at that time.

I therefore consider that the plain words of the section lead to the construction which was indicated by the Master of the Rolls in the case of Salamat Bibi, and that what one has to do is to embark upon a comparison of the rules in force pre the Act and post the Act. If the rules post the Act are such as to make wives and children less free to come and go, then the previous position has to obtain.

It seems to me, therefore, that in each of these cases the entry certificate officer applied the wrong test and I conclude that if there are no other considerations applicable -- and I shall hear if there are in any of these three cases -- these appeals should be allowed.

MR PLATTS MILLS: May I shall I produced the transcript of Fraquharson J but the availablity of it flowed from the unending river of staff of those instructing my learned friend.

TAYLOR J: I am sorry my judgment did not include the credits, but it will be on the transcript, Mr Platts Mills.

MR PLATTS MILLS: Unless there be some other point I ask for an order for taxation of legal aid costs in my case. Before legal aid was granted there were expenses of preparing the matter, and I ask for an order for costs in respect of those against the respondent.

TAYLOR J: By all means let us deal with costs, but I would still like to consider what the right order is here. What do you say about costs, first of all, Mr Collins?

MR COLLINS: My Lord, I cannot resist an application for costs.

TAYLOR J: Very well. You may have costs, Mr Platts Mills.

MR COLLINS: So far as the correct order is concerned, in my submission clearly there should be certiorari to quash the decision of the Tribunal -- and I am dealing with the case of Haque and it also affects Ruhul, but it may be convenient to deal with each in turn. What then should happen, I would submit, is that the matter should be reconsidered by the Secretary of State because as I say, what should have happened was that the decision of the ECO was that there should be a refusal. The adjudicator allowed the appeal against that, and properly, because the refusal had to go. What, in my submission, he then should have done in order to give effect to his determination under 19(3) was to give directions to the Secretary of State to reconsider in the light of his finding of facts and his decision that the true approach should have been to apply no more stringent a test than that applicable under 4298. The effect, because the adjudicator has found the relevant facts in Haque, will be, if your Lordship were to quash the Tribunal decision and perhaps even give a declaration or indicate in those terms that that is what should happen, then the matter will be reconsidered and I do not doubt Mr Haque will get what he wanted. I say "I do not doubt", I do not know of any reason why he should not, but one cannot be one hundred per cent sure because there may be some other facts that has not been considered relevant hitherto that may be brought out. I am not saying there is. I do not know that there is. As your Lordship knows I do not appear for this Home Office and I do not have those details, but I have every reason to believe that if that is done that is what he will get.

My Lord, similar considerations will apply in Ruhul, because there again the relevant facts are found, there was a decision in his favour by the adjudicator on the facts, which of course was reversed, and again I would submit that that would be the proper order in Ruhul.

Rahman is a bit different. I do not know ehther your Lordship would like to hear me on that.

MR TAYLOR: Shall we leave that over till we have dealt with these ones?

MR PLATTS MILLS: I was hoping to say that as my learned friend represents Mr Heyes, why not an order directed to him saying "Please grant".

TAYLOR J: But he does not represent Mr Heyes.

MR PLATTS MILLS: But it would still be open to your Lordship to give a direction to Mr Heyes.

MR COLLINS: It would not be for him. This is the point I am making. He cannot deal with it. It must be the Secretary of State. All Mr Heyes can do is deal with it according to the rules as they apply.

TAYLOR J: What I shall do, Mr Platt Mills, unless you persuade me that it will be a disadvantage to your client, is to order that certiorari should go to quash the decision of the Tribunal, and I give directions that the case should be referred to the Secretary of State for his decision as to what course to take, a decision which no doubt will be taken in the light of this court's ruling that the appropriate criteria to apply are those under command paper 4298.

MR PLATTS MILLS: I am sure I could not be better advised than by my Lord and by my learned friend.

TAYLOR J: In that case that concludes your application. Mr Alsolaimani I propose to make a similar order in your case, or rather that of your client. As far as costs are concerned what do you say?

MR ALSOLAIMANI: I apply for them, my Lord.

TAYLOR J: So be it, In your case you ask for a review of the decision of the Immigration Appeal Tribunal. That is the one which I shall quash and give those directions. I do not think there is any need to go further back in history. What do we do about Mr Rahman?

MR COLLINS: Perhaps it might be helpful if I set out my position first and my friend can deal with it. The difficulty in Rahman's case is tthat he matter came before the adjudicator at a stage which was after the decision in

Saeedan. The result was that it was assumed before the adjudicator that section 1(5) did not have the result that your Lordship has found it to have and therefore the matter had to be considered under rule 47. Your Lordship will recall in Rahman's case originally the decision was on the basis that the ECO was not satisfied that they were members of a family. That was the first time round.

There was then an appeal which for some reason which perhaps does not matter, the applicant or the mother did not pursue, in the sense that they did not appear when they should have done. In the result no evidence was heard on their behalf, the matter was heard on the papers and not suprisingly they lost.

They then reapplied and there was the dispute about whether or not they were a family. First of all they went to the adjudicator who wrongly applied rule 35 and said "you have applied before. You are doing the same again. I am not going to listen to any evidence." Not suprisingly the Tribunal allowed an appeal against that decision and remitted the matter to find the facts. So it is Mr Housden's decision on the facts that is the important one. By a time Mr Housden came to make his decision in August, 1984, Saeedan had been decided. At that stage, and indeed at the Tribunal stage, it had been accepted that the applicant was caught by rule 47. In the result the adjudicator, although he found as a fact that he was a member of the family in the sense that he was a relation and was the son, he did not consider the other elements of 4298, namely fully dependent and so on. Therefore there is no finding of fact on that issue to enable the matter to be dealt with in the way that it was dealt with in the other two cases.

There are two courses your Lordship can adopt, two alternatives; the one keeping it entirely within the appellate system would be to quash the decision of the Tribunal (which of course has to be quashed) and to get the Tribunal to consider the appeal on the basis of your Lordship's judgment so that they consider any material relevant to the exercise of discretion under the terms of an equivalent to 4298. That is one way of doing it. Probably what would happen then is that the Tribunal would remit it to the adjudicator and it would be for the adjudicator to find the facts. That may be the most convenient course to suggest in any event, namely that the matter goes back to the adjudicator.

TAYLOR J: There is no reason why I should not refer it back.

MR COLLINS: There is no reason why your Lordship should not recommend that, and I do not doubt if your Lordships were to recommend that, it would happen.

TAYLOR J: We cannot cut that step out, can we?

MR COLLINS: Practically I expect we can, but I am not sure whether your lordship has jurisdiction to order it to happen as part of the certiorari, because all certiorari does is to quash. I suppose you could mandamus and remit. I am not going to make any technical difficulties; I am sure that would be the sensible thing to happen. The other alternative is to remit the whole lot back to the Secretary of State to reconsider, but it is probably more desirable to leave it to the adjudicator.

TAYLOR J: What it actually says is that where there are grounds for quashing the decision, the court may, in addition to quashing it, remit the matter to the court, Tribunal, or authority concerned with a direction to reconsider it and reach a decision. It may be doubtful as to whether one can push it further down the line. It seems very unfortunate that one should have to take an extra step.

MR COLLINS: I do not think it is necessary. All that is needed to be practical about it is for your Lordship to suggest or indicate that this is what you Lordship considers desirable, and if it is necessary for the Tribunal formally to do it, then they can do it formally without wasting any money in so doing. I would respectfully have thought it is the desirable course to adopt because the relevant facts have yet to be found.

TAYLOR J: Mr Ahmed, what do you say about it?

MR AHMED: My Lord, I would have said the second course, for it to go to the Secretary of State, because the main issue before the adjudicator, at that time, he knew very well what was the issue before him.

TAYLOR J: The point is made in favour of doing it the other way, Mr Ahmed, is that where as in the other two cases we have been considering all the evidence is out as to all the factors that would be required under 4298 relevant paragraph 40, in your case that is not so, so that the Secretary of State would not have before him, without more, all the evidence that he might need to decide on that; whereas, if it went back to the adjudicator he could hear evidence as to the dependency and he would then have the directions of his court as to what criteria he was to apply, and assuming that your client was dependent and was joining the family unit and so on -- which I would not have thought was one of the most onerous things to prove -- you would be home and dry.

MR AHMED: That is the course I wish to follow.

TAYLOR J: You are quite happy about that, are you? It seems to me the best course and then the evidence can be obtained. What I will say is that certiorari will go back in this case as in the other two, but in this case it is desirable that the matter go back to the adjudicator so the facts can be found on the matters that have not yet been investigated. I would like to think I could send it back to the adjudicator, for that purpose, but if it has to go via the Tribunal then I order that it does that, but in either event I hope that its arrival at the adjudicator can be as speedy as possible.

MR AHMED: I ask for the costs to call the evidence.

TAYLOR J: Yes.

DISPOSITION:

Orders accordingly.

SOLICITORS:

BC Mascarenhas, London: Treasury Solicitor.

Copyright notice: Crown Copyright

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