Yadvinder Singh v. Secretary of State for the Home Department

Yadvinder Singh v Secretary of State for the Home Department

Court of Appeal (Civil Division)

[1988] Imm AR 480

Hearing Date: 15 March 1988

15 March 1988

Index Terms:

Judicial Review -- discovery -- whether an applicant is entitled to call for the notes made by immigration officers of interviews with him.

Application for political asylum -- refused by Secretary of State -- whether decision on the facts was amenable to judicial review.

Held:

Appeal from Divisional Court. The applicant had been refused judicial review by the Divisional Court, of the decision by the Secretary of State to remove him from the United Kingdom following the rejection of his claim for political asylum. Before the Court of Appeal (but not before the Divisional Court) there was a preliminary application for discovery of the notes of the interviews conducted by immigration officers with the applicant. The applicant had not sworn any detailed affidavit as to what occurred in those interviews and there was no challenge by him, on the face of the record, it seems, to demonstrate prima facie that he disputed the facts emerging from those interviews and on which the Secretary of State in part had reached his decision. The Court went on to consider the merits of the substantive case. Held: 1. On no principle of law or fairness was the applicant, without in substance saying anything about what occurred at the interviews, entitled to call for the Secretary of State to produce a full record of what he, the applicant, had said. 2. It was open to the applicant to aver his recollection of the interviews which if he chose to dispute, the Secretary of State could then most easily challenge by production of the notes. 3. On the facts, the decision of the Secretary of State could not be attacked on grounds of "Wednesbury unreasonableness".

Cases referred to in the Judgment:

Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223: [1947] 2 All ER 680.

Counsel:

KS Nathan QC and G Warr for the applicant; J Laws for the respondent. PANEL: Lord Donaldson MR, Parker, Taylor LJJ

Judgment One:

LORD DONALDSON MR: This is a preliminary application made in the course of an appeal against a refusal by the Divisional Court to grant judicial review of orders calling for the removal of the applicant from the United Kingdom. The application is for discovery by the Secretary of State of notes of two interviews between the applicant and immigration officers. The application for discovery has been made for the first time in the Court of Appeal, no such application having been made either before the Divisional Court proceedings were heard or during the course of those proceedings. That, in itself, would be a substantial objection to granting this application, although in special circumstances possibly not insuperable. However, it is quite unnecessary for us, in my judgment, to elaborate on what the circumstances are which would justify an application at this late stage, because the application fails on its own merits. Why I say it fails on its own merits is that in an application for judicial review the burden of proof lies on the applicant in relation to his complaints. This particular case concerns a claim to asylum on the grounds of well-founded fear of persecution; and there again it is for the applicant to make his case. In the course of these interviews it was to be expected that the applicant would have made his case to the immigration officer. It is also to be expected that the applicant will know what his case was at that time. While he may not remember precisely what he said to the immigration officer, it is to be expected that he will have a clear recollection of the substance of what he said. In those circumstances it is simple for the applicant to swear an affidavit saying that at a particular interview or interviews "I told the immigration officer the following facts which form the basis of my claim to asylum". It may be that, if that is done, the Secretary of State will consider that the applicant's recollection of the interview is substantially accurate and that he is content to defend the decision that he had reached, accepting that version of the interview. If, on the other hand, the Secretary of State's case is that no such interview took place or that quite different things were said at the interview, it is for the Secretary of State to give some evidence of those facts. The most obvious way in which to give evidence is to produce the notes of the interview. But I cannot understand upon what principle of law or fairness the application is put forward that, without in substance saying anything about what occurred at the interview (a little is said, but very little, in the affidavit), the applicant is entitled to call for the Secretary of State to produce a full record of what he, the applicant, said. It may be that there are perils in an applicant swearing what he said if he was not telling the truth and cannot remember what he did say, and I am not suggesting that that was the case here. That is the only practical reason that I can see why an applicant should regard it as necessary that he should have advance discovery of what the immigration officer recorded that the applicant said at an interview before he, the applicant, could put forward what he says that he said at the interview. For my part, I can see no grounds whatever for ordering discovery in this case and I would not do so. (Submissions on the main appeal followed.) This is an appeal from the decision of the Divisional Court consisting of Woolf LJ and McCullough J, which considered an application for habeas corpus and judicial review relating to the fact that the applicant was being detained under the Immigration Act. But the application in fact expanded also to cover whether the decision of the Secretary of State to refuse the applicant political asylum could be attacked as being "Wednesbury unreasonable". It is only that latter point which is the subject-matter of this appeal, the Divisional Court having held that the application failed. The history of the matter briefly is this. The applicant left India in December 1984 and arrived in the United Kingdom seeking leave to enter as a visitor for one month. He now says that he in effect escaped from India because of his well-founded fear of persecution. No mention of that fact was made by him to the immigration officer upon his arrival. His application was considered and he was refused leave to enter. Representations were made (by, I think, a Member of Parliament, but that matters not), and, in order that further time should be available to consider those representations and taking account of the fact that it was practically Christmas, the applicant was granted temporary admission. The representations were considered and various removal directions which had been given were varied, the temporary admission being extended. By February 1985 all the representations had been considered and it was decided that removal directions should be given. I would add that one of the conditions on which temporary admission was granted was that the applicant should remain living at a specified address in London. When he was notified in February that he was going to be removed notwithstanding the representations which had been made, the applicant then applied for asylum. This of course created a new situation and once again the removal directions were cancelled and his temporary admission extended. On 19 February he attended an interview at Heathrow Airport in connection with that claim and promised to provide further evidence in support of it. He then just did nothing. The Home Office chased his solicitors for the further evidence, but it was not forthcoming. In those circumstances, not unnaturally, further removal directions were given at the beginning of July 1985 for his removal within a few days. He never turned up in response to the removal directions and there followed numerous attempts to get in touch with the appellant. He was in fact at that time living in Coventry, and he now says that his solicitor advised him that the Home Office both knew and consented to his living in Coventry. It is reasonably clear that the Home Office did not know that he was living in Coventry, or did not know where in Coventry he was living, and that they never consented to it. But of course it is quite unnecessary for present purposes to resolve the issue of whether he was ever told by his solicitor that the Home Office had consented. At all events, after a search for the applicant and after what could only be described as negotiations between the Home Office and the applicant, the applicant was good enough to report to Heathrow Airport where a second interview was conducted. At the end of that interview the immigration authorities said that they were not prepared to extend his temporary admission and he would be remanded in detention while the matter was further looked at. It was that detention which gave rise to the application for habeas corpus and judicial review, impliedly accepting at that stage that that was the sole ground of complaint; but, in so far as the applicant says that many of his troubles in this country stem from the inefficiency of his solicitor, for my part I would not be prepared to hold that against him. The applicant remained in detention until the matter was heard by the Divisional Court, but thereafter he was released on bail pending this appeal. The Divisional Court was quite unable to find any basis upon which it could be said that the Secretary of State's decision was irrational or "Wednesbury unreasonable". The applicant had indicated that he was a member of a political party which, it is said, did not find favour with the Indian authorities. He did not suggest that he had been an officer of the party. He produced a letter from an advocate in India advising him not to return to India because, as the letter said, there were a number of criminal warrants out against him. Copies of some of those warrants have been produced, and it has been suggested by Mr Nathan that those warrants do not indicate the commission of ordinary criminal offences. For my part, I do not know whether they do or do not, and I find it surprising that, if the applicant is saying that there is some special character of these offences which supports his claim for asylum, we have not been told what is the nature of the offences indicated by the warrants. At any rate, we have no information about that. The applicant also said that thousands of Sikhs were being killed in India, and, as a Sikh, that also formed a part of his reasons for not wishing to return. He did not give any evidence of thousands of Sikhs being killed in India. One would not expect him to do that. What I would have expected was that, if he said that as a Sikh he was in some particular danger which did not affect all Sikhs, he would have indicated what that danger was. There is certainly no such evidence which would justify this court, in my judgment, from saying that it was so compelling that the Secretary of State was bound to grant asylum. It is not the function of this court to act as an appellate court from the Secretary of State. We have not got the material to do so, but we have got the material to know whether this is a decision which on its face is one which no reasonable Secretary of State could take, and that it certainly is not. Accordingly, I would dismiss the appeal.

Judgment Two:

PARKER LJ: I asgree. Once the application for discovery had been dismissed, the only matter which was sought to be argued depended on a strict analysis and dismembering of the Secretary of State's letter of 19 December 1985 (which is at page 64 of the bundle). The arguments presented upon that do not appear to me to have any substance whatever, and I too would dismiss this appeal.

Judgment Three:

TAYLOR LJ: I agree with both the judgments that have been given.

DISPOSITION:

Application dismissed

SOLICITORS:

Thakrar & Co, Southall; Treasury Solicitor

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