Ali Calik and Hanife Celik v. Secretary of State for the Home Department

ALI CELIK AND HANIFE CELIK v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1991] Imm AR 8

Hearing Date: 25 May 1990

25 May 1990

Index Terms:

Judicial review -- refusal of political asylum -- refusal of leave to enter the United Kingdom -- allegation of impropriety in procedures leading to refusal of leave -- contention that a fair hearing would have made no difference to the result -- whether unfairness always invalidated a decision -- when leave to move for judicial review might be refused despite proven impropriety -- whether on the facts there had been any unfairness. HC 388 para 75.

Held:

Renewed application for leave to move for judicial review. Leave had been granted after an ex parte hearing before Roch J, but then that leave set aside on application by the respondent and after an inter partes hearing before Otton J. The applicants were citizens of Turkey, Kurds. On arrival in the United Kingdom they claimed political asylum. Their case was investigated: the Secretary of State decided to refuse the application. At the third interview with the applicants, when that decision was given to them, the immigration officer enquired whether they wished to apply for leave in any other category. The first applicant indicated that he would wish to have a solicitor present before making any such application. The immigration officer however, after exchanges set out in the judgment of Staughton LJ, refused leave to enter without giving the applicants the opportunity to have a solicitor present. In the court below it had been argued inter alia that, in that respect, the procedures had been unfair. It had been argued for the respondent that even if there had been unfairness (which was not apparently admitted), it had not affected the decision which, in the circumstances would have been the same in any event. Another ground put forward below had, by the time the case came before Otton J, fallen away. Before the Court of Appeal, it was argued by counsel on behalf of the applicants that there had been unfairness in the procedures, and the applicants, being denied legal advice, had been adversely affected: there were categories into which they might have fallen, and in which they could have sought leave to enter. It was also contended that "unfairness invalidates a decision even if it made no difference." Counsel for the respondent (who did not appear below) argued that on the facts there had been no unfairness to the applicants who, between the dates of the various interviews had had ample time and full opportunity to consult a solicitor, and if need be arrange for a solicitor to attend the interview. Held: 1. The law did not go so far as to say that one could never ignore unfairness on the ground that a fair hearing would have made no difference. There were many cases in which judicial review was refused as a matter of discretion even though there had been impropriety in the decision making process. 2. Per Staughton LJ "nevertheless . . . I would have had some anxiety if it had been a question of refusing leave to move on the grounds that a fair hearing would have made no difference . . . ordinarily if there has been improper procedure, one needs to be roundly convinced that the impropriety made no difference before one should refuse to act upon it." 3. However, on the facts there had been no unfairness in the procedures adopted and leave would accordingly be refused.

Cases referred to in the Judgment:

Unal Narin v Secretary of State for the Home Department [1990] Imm AR 403. R v Secretary of State for the Home Department ex parte Ali Celik and anr (unreported, QBD, 13 February 1990).

Counsel:

A Riza for the appellants; D Pannick for the respondent PANEL: Purchas, Staughton LJJ, Sir Denys Buckley

Judgment One:

STAUGHTON LJ: Mr and Mrs Celik arrived at Heathrow Airport on 19 May 1989 and claimed to be refugees. They were of Turkish nationality and Kurdish origin. They were, presumably, interviewed on that occasion. Then, on 9 August 1989 they completed what is called an asylum questionnaire, which is customary in these cases. On 29 August 1989 Mr Celik, the husband, was interviewed and he was given notice that the Secretary of State was minded to refuse his application for political asylum. The procedure then requires a further step. On 2 October 1989 the Home Office Immigration and Nationality Department specialist refugee section had considered the application, and the Secretary of State was not satisfied that Mr and Mrs Celik qualified as refugees. Accordingly, their application was formerly refused. That letter was handed to Mr Celik. In accordance with paragraph 75 of HC 388 there had then to be a further interview. Paragraph 75 says: "If the Home Office decides to grant asylum in the United Kingdom, the immigration officer will grant leave to enter. If the Home Office decides to refuse asylum, the immigration officer will resume his examination of the person seeking entry for the purpose of determining whether or not to grant him leave to enter under any other provision of these rules". The immigration officer accordingly did start a further interview on that same day with Mr Celik. The interview began like this: "I informed the [passenger] that the Secretary of State had made a final decision in his case and that this would now be read to him in Turkish. Q. Have you understood the content of the notice that has just been read to you? A. Yes. Q. Do you wish to seek entry to the UK under any other category of the Immigration Rules? A. Yes, but I would like to do it through my solicitor. This is my third time here and I have never had a solicitor present. Q. You must tell me now if you wish to enter the UK under any other category, but you can of course discuss the refusal of [political asylum] with your solicitor. Do you wish to enter under another category? A. I do not wish to enter under another category without speaking to my solicitor". The immigration officer then said: "I explained that he could discuss this refusal of [political asylum] with his solicitor if he chose. The [passenger] said that he understood this". Following that interview Mr and Mrs Celik were handed notices of refusal of leave to enter. Those notices said: "See Attached Notice" -- that dealt with the political asylum -- "Furthermore, you do not qualify for leave to enter under any paragraph of the Immigration Rules". That was all done on the same day, 2 October 1989. The applicants then applied for leave to move for judicial review. That was on three grounds. It came before Webster J on paper and was refused. There was then an oral ex parte application before Roch J. By this time six more grounds had been added. In substance, they complained of unfairness at the interview on 2 October when Mr Celik was not allowed to have a solicitor present. During the course of the argument it would seem that Mr Riza, who then appeared for the applicants, was asked: "What difference would it make if there had been a solicitor present?" As I read the judgment of Roch J, Mr Riza replied that the solicitor could have pointed out the possibility that Mr and Mrs Celik were entitled to remain under the European Community rules as to the free movement of workers. Roch J evidently thought that that was an arguable point and on that ground, coupled with the unfairness point, granted leave to move for judicial review. Then an unusual event occurred. On 13 February 1990 the Secretary of State applied for an order that leave to apply for judicial review should be discharged. Of course, any order made ex parte may, in the ordinary way, be discharged inter partes: see Order 32, rule 6. The considerations which apply to such an application seem to me, in general, to be those Mr Pannick stated, that is: "whether the court is satisfied, inter partes, that there is no properly arguable point for judicial review". That application came before Otton J. He concluded that there was no proper ground for judicial review. The parties were differently represented then than they are today. Mr Laws appeared for the Secretary of State and Mr Cotran appeared for the applicants. Mr Laws, according to Mr Riza, conceded that there was unfairness when Mr and Mrs Celik were not allowed the benefit of their solicitor. Mr Pannick says that this was not a matter of concession so much as accepting a hypothesis; that Mr Laws was arguing that even if there was unfairness, still it made no difference to the result and that the remedy of judicial review should not be granted. The court cannot be wholly confident about that although, looking at the transcript of Otton J's judgment, it does seem to me that Mr Laws did not make an unequivocal concession. Otton J says, at page 5: "Mr Laws, on the other hand, argues that even if the procedure is defective, and shown to be defective in any way whatsoever, then it will be an empty finding for the applicants . . ." I would incline to the view that the judge there was accurately putting the argument before him. By the time that Otton J came to consider this matter, the argument put forward by Mr Riza before Roch J was no longer available. The suggestion that these applicants would have been entitled to enter under the European rules for the free movement of workers had been undermined by a decision of the Court of Appeal in R v Secretary of State for the Home Department, ex parte Narin. Accordingly, Otton J said: ". . . I am satisfied that there is no arguable case to be advanced on behalf of the applicants". Now they apply to this court. They say that it is either an appeal from Otton J's order or a re-application to this court for leave to apply. We have agreed to treat it as a re-application for leave to move for judicial review. Mr Riza takes two points. First, he says that even though the European rules for the free movement of workers are no longer of any assistance to his clients, there are other grounds upon which a solicitor could have advised them and upon which they might have received sympathetic consideration. Therefore, he submits, unfairness in the interview on 2 October cannot be disregarded on the ground that it made no difference. The two examples he gave were, first, that Mr and Mrs Celik might have applied for exceptional leave to enter. Their solicitor might have suggested that to them. They would then, as he says, perhaps have been lucky enough to come into what he tells us is a large category of people who have been refused political asylum but, nevertheless, have obtained exceptional leave. Alternatively, he says that they might have applied to come here as visitors for a temporary stay, although they did not have a visa. Mr Riza's second point is this: unfairness invalidates a decision even if it made no difference. He cites authorities in his skeleton argument in support of that proposition, respectable authorities, I might say, because two of them appear to be decisions of the House of Lords. Furthermore, he cites Professor Wade's book, Administrative law, sixth edition, pages 533-535, in particular two sentences: "Judges are naturally inclined to use their discretion when a plea of breach of natural justice is used as the last refuge of a claimant with a bad case. But that should not be allowed to weaken the basic principle that fair procedure comes first, and that it is only after hearing both sides that the merits can be properly considered". It seems to me that the law does not go as far as saying that one can never ignore unfairness on the grounds that a fair hearing would have made no difference. There are constantly cases where the remedy by way of judicial review is refused by way of discretion, even though there has been impropriety in the decision making process. I go no further than that for this purpose. Mr Pannick has taken the opposite route in this court to that taken by Mr Laws before Otton J. He says, first, that there has been no unfairness here. He points out that Mr and Mrs Celik arrived on 19 May 1989. It was not until 2 October, when they were interviewed for the third time, that Mr Celik was asked whether he wished to enter the United Kingdom on any other grounds. He had by that time had opportunity to consult a solicitor to his heart's content or to bring one to the interview. There was no unfairness, according to Mr Pannick, in the procedure that was adopted. In my judgment, that is an appropriate assessment of this case. I do not see that there was any unfairness to Mr and Mrs Celik on 2 October 1989. That makes it unnecessary to consider the alternative point on which Otton J decided the case, whether, if there had been a solicitor present, it would have made any difference. As to the suggestion that a solicitor might have advised Mr Celik to seek exceptional leave to remain, Mr Pannick says that that is not a matter which fell to be considered at the interview in question, because paragraph 75 of HC 388 only requires the immigration officer to determine whether leave should be granted to enter under any other provision of the rules, and we are told that exceptional leave does not feature in the rules at all. As to the suggestion that the solicitor might have advised Mr and Mrs Celik to apply for leave to enter as visitors, Mr Pannick submits that there is no indication that they had ever wanted to come as visitors. There is a good deal of force in those points on this second aspect of the case. Neverthless, speaking for myself, I would have had some anxiety if it had been a question of refusing leave to move on the grounds that a fair hearing would have made no difference. It seems to me that ordinarily, if there has been improper procedure, one needs to be roundly convinced that the impropriety made no difference before one should refuse to act upon it. Maybe I am saying what Professor Wade had said less happily than he did. As it is, I would refuse this application on the ground, taken here but not below, that there was no unfairness in the procedure on 2 October 1989.

Judgment Two:

SIR DENYS BUCKLEY: I agree.

Judgment Three:

PURCHAS LJ: I agree that this application should be refused for the reasons given by Staughton LJ.

DISPOSITION:

Application refused

SOLICITORS:

South Islington Law Centre; Treasury Solicitor