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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte MOHAMMED YAQOOB

COURT OF APPEAL (CIVIL DIVISION)

[1984] 1 WLR 920, [1983] Imm AR 121

Hearing Date: 23 September 1983

23 September 1983

Index Terms:

Crown -- Minister, determination by -- Whether subject to review by courts -- Immigration officer refusing leave to enter -- Application to restrain minister from removing applicant pending appeal -- Whether court having jurisdiction to make order to stay executive function

Introduction:

APPLICATION

The applicant, Mohammed Yaqoob, applied for judicial review of a decision of an immigration officer refusing him permission to enter the United Kingdom as a student. His application was dismissed by Stephen Brown J. He gave notice of appeal and, on a notice of motion seeking an order for the appeal to be expedited, he applied for an order staying any proceedings by the Secretary of State to deport the applicant pending the hearing of the appeal. The application was heard in chambers and is reported by permission of Dillon L.J.

Counsel:

A. A. Riza for the applicant. Peter Clark for the Secretary of State. PANEL: Dillon L.J.

Judgment One:

DILLON L.J. The applicant in this case, Mohammed Yaqoob, came to England on 1 June 1982 with a view to, so he claimed, studying English in St. Anthony's School of English in Gloucester Road, London. He was refused admission by the immigration officer on the broad ground that he was not educationally qualified for what he was proposing to do and the immigration officer was not satisfied that he really was going to study English and to leave this country at the end of his course of study. After intervention by a member of Parliament on his behalf he was given temporary permission to remain. He applied for leave to bring proceedings for judicial review of the immigration officer's decision, and that leave was granted by McNeill J. His temporary permission to remain was then extended pending hearing of his application for a judicial review. That application came before Stephen Brown J. on 17 May 1983. The evidence indicates that down, at any rate, to 9 May the applicant, Mr. Yaqoob, had been very regular in his attendance at St. Anthony's School even though his progress with English, despite hard work on his part, was not very fast. Stephen Brown J. rejected the application for judicial review because he felt unable to say that the decision of the immigration officer was unreasonable. Against that decision the applicant has given notice of appeal. The notice of appeal was given promptly on 31 May 1983. It sets out various grounds of appeal, to which Mr. Riza has referred me. I do not propose to go into those because the appeal is an appeal as of right which will come before a full Court of Appeal for decision and not before a single judge of the court. I am now asked for an order expediting the hearing of the appeal and, as it is put in the notice of motion, staying any proceedings by the Secretary of State to remove Mr. Yaqoob pending the hearing of the appeal. The present position is that, as it is expressed in a letter from the Secretary of State of 9 September 1983, the Secretary of State intends to set in motion the procedure for the removal of Mr. Yaqoob notwithstanding his pending appeal. There have been previous letters to the same effect from officials in the Secretary of State's department, but although it is now some four months since Stephen Brown J.'s decision, Mr. Yaqoob is at the moment still here. It seems to me that it is appropriate that the hearing of this appeal should be expedited, and I so direct. Mr. Riza, in his particularly persuasive argument, stressed that the balance of convenience lay very strongly in favour of allowing Mr. Yaqoob to remain in this country until his appeal had been heard rather than that he should be returned to Pakistan and should then come back to this country again if his appeal succeeds. As a matter of common sense there is obvious force in that. It is, however, a matter for the Secretary of State and in view of the Crown Proceedings Act 1947 I do not think this court has any jurisdiction to make an order against the Secretary of State restraining him from removing Mr. Yaqoob pending the hearing of the appeal. The appeal is concerned not with the steps for Mr. Yaqoob's removal but with the propriety or otherwise of his refusal of admission last year. The stay sought of proceedings for removal is not a stay of the enforcement of an order of the court, it is an injunction to restrain the Secretary of State from exercising his executive functions, and that the court cannot grant. Therefore, I do not feel able to grant any relief, especially as it is not appropriate to grant an interim declaration in lieu of an injunction since that would have no legal effect. Therefore I must make no order on that part of the application which seeks a stay which I have mentioned.

DISPOSITION:

Appeal to be expedited. Costs reserved to hearing of appeal.

SOLICITORS:

Syed A. Rafique: Treasury Solicitor.

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