Angur Begum and Ors v. Secretary of State for the Home Department; Rukshanda Begum v. Secretary of State for the Home Department

Court of Appeal (Civil Division)

 

[1990] IMM AR1

Hearing Date: 20 March 1989

20 March 1989

Index Terms:

Judicial review -- leave granted ex parte -- subsequently set aside on inter partes hearing -- application for judicial review before Court of Appeal -- the procedure to be followed by the judge at first instance when he is uncertain on the facts before him, whether to grant leave -- whether judicial review would be given on the basis of a point never taken during the proceedings before the immigration appellate authorities.

Wife -- entry certificate granted to join husband in United Kingdom -- husband had died in Bangladesh by date of decision to refuse leave to enter -- whether refusal of leave justified -- whether 'present in the United Kingdom and settled here' means physically present. HC 169 paras 46-48.

Child -- granted entry clearance to travel with mother to United Kingdom -- mother failed to travel with child -- refusal of leave to enter -- whether justified. HC 169 para 50(c).

Held:

Appeals from McCowan J who had set aside after inter partes hearings, applications for judicial review previously granted ex parte. In the case of Angur Begum, and her step-children, the applicants were refused leave to enter when the husband and father died in Bangladesh, after the grant of entry clearance and before the date of decision to refuse leave to enter. It was argued that either on a true interpretation of paragraphs 46-48 of HC 169 or on the basis of the provisions of s 1(5) of the 1971 Act, they were still entitled to enter the United Kingdom. Rukshanda Begum (a minor) was given entry clearance to travel with her mother to the United Kingdom to join her father: in the event the mother remained in Bangladesh. The applicant was refused leave to enter. Before the appellate authorities it had been argued that the applicant was entitled to entry clearance under HC 169 paragraph 50(c): it was now argued that the Secretary of State should have considered the case, on review, under HC 169 paragraph 50(f). Held 1. In paragraph 46 of HC 169 the phrase 'present in the United Kingdom and settled there' meant 'physically present'. It followed that Angur Begum and her step-children had no arguable claim to admission under paragraphs 46-48 of HC 169. Counsel however had raised an issue relating to the provisions of s 1(5) of the 1971 Act which merited full argument. The application for judical review would accordingly be granted. 2. In the events which had happened Rukhshanda Begum had no claim to admission under paragraph 50(c) of HC 169. The argument under sub-paragraph 50(f) had never been raised before the immigration appellate authorities. "It would be almost without precedent for this court to intervene by judicial review where an appeal process is not only available but has been gone through and the point has not been taken." The application for judical review would be refused. 3. Where a judge was uncertain, on the facts before him on an ex parte application for judicial review, whether or not to give leave, the right course would be for him to invite the putative respondent to attend and make representation as to whether leave should or should not be granted.

Cases referred to in the Judgment:

Antaios Compania Niaviera SA v Salen Rederierna AB [1985] AC 191; [1984] 3 All ER 229. R v Secretary of State for the Home Department ex parte Angur Begum and ors [1989] Imm AR 302. R v Secretary of State for the Home Department ex parte Rukshanda Begum [1989] Imm AR 302.

Counsel:

KS Nathan QC for the applicants Angur Begum and others; NJG Blake for the applicant Rukshanda Begum; J Laws and D Pannick for the respondent PANEL: Lord Donaldson MR, Bingham, Mann LJJ

Judgment One:

LORD DONALDSON MR: We are faced today with two appeals, or alternatively two reserved applications. The problem arises in this way. In both cases leave to apply for judicial review was granted ex parte; in both cases that leave was set aside on subsequent applications by the Secretary of State. The applicants are, not unnaturally, aggrieved at having apparently succeeded at the leave stage only to find their victory snatched from their hands at a subsequent stage. They now arrive in this court. It is debatable which route they are following, though, for my part, I would have thought it possible for them to follow both routes. If they are in fact appealing from a decision to set aside an ex parte order, that is plainly an interlocutory decision for which they would require leave. In order to avoid the procedural problems we have granted them leave. If, on the other hand, the true view is that they failed in the court below to obtain leave to move for judicial review, then, having failed to obtain that leave, albeit in two bites, they are now re-applying to this court under the traditional jurisdiction of this court to entertain separate applications where the first application has been refused and, of course, they need no leave. I say no more about the interesting juridical questions which arise under that head. The appeals, hpwoever, have this importance, apart from their intrinsic merits or lack of merits. For the first time this court has been asked to review a situation in which ex parte leave has been subsequently set aside, in fact by a different judge but this is not material. For my part, as it seems to me, a judge who is confronted with an application for leave to apply for judicial review should grant it if he is clear that there is a point fit for further investigation on a full inter partes basis with all such evidence as is necessary on the facts and all such argument as is necessary on the law. If he is satisfied that there is no arguable case he should dismiss it. But there is an intermediate category of cases in which the judge, on looking at the papers which support the application, can very reasonably come to the conclusion that he really does not know whether there is or is not an arguable case, either because the facts are not clear or because he has not received sufficient assistance with the law to enable him to be satisfied as to precisely what the relevant law is. That is not necessarily a criticism of counsel supporting the application: it may well be inherent in the problem. In those circumstances, where he is in doubt, the right course, in my view, is always to invite the putative respondent to attend and to make representation as to whether leave should or should not be granted. This is not to say that the subsequent inter partes hearing should become anything remotely like the hearing which would ensue if leave were granted. It is analogous to the approach which was considered by Lord Diplock in Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 at p 207 in a quite different context, that of arbitration: if, taking account of a brief argument on either side, the judge is satisfied that there is a case fit for further consideration, then he should give leave. Adjournment for an inter partes hearing will at least enable the judge to have a bird's eye view of the contentions on both sides and any doubts or difficulties are likely to be resolved one way or the other; that is to say either in favour of granting leave or in favour of refusing leave, or resolved in the sense that it is obviously very difficult and needs further thought, which of course amounts to a requirement for leave to be granted. I say no more about that. I turn now to the bases of these particular cases. In the first case Angur Begum obtained an entry clearance certificate to come to this country with her four step-children to join her husband who was settled in the United Kingdom. Her entry clearance certificate contemplated that she would be admitted under rule 48 of HC 169, which provides: "The wife of a person who is settled in the United Kingdom or is on the same occasion being admitted for settlement is herself to be admitted for settlement if the requirements of paragraphs 46 and 47 are satisfied." Rule 46 provides: "This paragraph and paragraphs 47-53 cover the admission for settlement of the dependants of a person who is present in the United Kingdom and settled here . . . " What is said by Mr nathan is that the husband was settled here at the time when Mrs Begum arrived and that it matters not that he was not in fact in the United Kingdom; the phrase "present in the United Kingdom" does not mean physically present at that time. What had happened was that the husband was abroad in Bangladesh on what might have been a brief visit but for the fact that he died there a month after his wife arrived in this country. Mr Nathan says that does not matter. For my part, I think that that argument is not sustainable and would not have given leave on that ground. "Present" means physically present. However, it does appear that there is an argument as to the applicability of the Commonwealth Immigrants Act provisions which are reflected in section 1(5) of the Immigration Act 1971. For my part, I would like to say as little as possible about that because it will have to be fully argued. But, as I say, in my judgment, there is an arguable case and it depends to some extent on the facts. The facts have been more fully deployed now than they were before the learned judge when he granted leave or the other judge when he set leave aside. I, for my part, would find it unsatisfactory to try and determine this matter on an application for leave. I think that the facts should be properly ascertained and marshalled and then the arguments of law, if they still arise on those facts, can be determined by a judge hearing the substantive application. The other case concerns a girl who was given entry clearance to enter this country, the entry clearance certificate contemplating a situation covered by paragraph (c) of rule 50 of HC 169 in which one parent -- in this case her father -- was settled in the United Kingdom -- indeed, he was a British subject with a right of abode -- and the other parent was on the same occasion being admitted for settlement. In other words, what was contemplated was that she would come to this country with her mother, but in fact her mother did not come with her. She came only with her father because the mother remained abroad until such time as the disputed parentage of two younger children should have been resolved, they having been refused entry clearance. It is quite clear to me that in those circumstances paragraph (c) of rule 50 had no application. The case was taken on appeal to the adjudicator, was rejected by him. There was a further appeal to the Immigration Appeal Tribunal and this was rejected. The case then went back to the Minister who decided that in those circumstances he was not going to exercise any additional discretionary power to allow her to remain. It is that decision of the Minister which is now attached and it is attacked on the basis that he should have considered sub-paragraph (f) of rule 50 which provides: "if one parent or a relative other than a parent is settled or accepted for settlement in the United Kingdom and there are serious and compelling family or other considerations which make exclusion undesirable -- for example, where the other parent is physically or mentally incapable of looking after the child -- and suitable arrangements have been made for the child's care." It is submitted that he should have allowed her in on the basis of that paragraph. The answer to that is that no claim was ever put forward on this basis before the adjudicator or before the Immigration Appeal Tribunal. It was not put forward, so far as is known, to the Minister, although it is quite true that the Minister was taking an overall look at the case and may have been aware of some or all of the circumstances. What is now said is there is obvious hardship in this girl being required to leave, that the parentage of the two younger children will resolve itself one way or the other in the near future, that there is another sister who came at the same time who was found to have British nationality, having been born in High Wycombe, and that all those circumstances render exclusion undesirable. For my part, I think it would be almost without precedent for this court to intervene by judicial review where an appeal process is not only available but has been gone through and the point has not been taken. That is not to say, of course, that the Minister may not wish to look at this case again in the light of the arguments of hardship and, for my part, I very much hope he will. But I am quite unable to say that his decision was wrong and that is the decision which is sought to be impugned. That proposition is quite unarguable. Therefore, leave should not be given. What decision the Minister should reach if he does review the matter again must be a matter entirely for him. Accordingly, I would grant leave in the first case and refuse leave in the second.

Judgment Two:

BINGHAM LJ: I agree.

Judgment Three:

MANN LJ: I also agree.

DISPOSITION:

Angur Begum and ors: application granted. Rukshanda Begum: application refused

SOLICITORS:

Skanda Kumar & Co for Angur Begum & ors, Bradford Law Centre for Rukshanda Begum; Treasury Solicitor.