Uddin and Others v. Secretary of State for the Home Department

UDDIN AND OTHERS v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1991] Imm AR 587

Hearing Date: 26 June 1991

26 June 1991

Index Terms:

Children -- over-age -- entry clearance refused when children were minors -- appeals dismissed -- entry clearance officers and appellate authorities not satisfied of relationships as claimed -- DNA tests subsequently supported claimed relationships -- Secretary of State declined to refer cases to adjudicators -- whether that refusal reasonable -- whether new evidence derived from DNA tests admissible in the court and would justify quashing the original decisions of the entry clearance officers and the determinations of the appellate authorities. Immigration Act 1971 s 21; HC 251 para 53; RSS o 53, r 14/47.

Held:

Renewed applications for judicial review, following dismissal by Hutchison J. The applicants were all over-age children of sponsors settled in the United Kingdom. While minors they had been refused entry clearance to join their parents: the entry clearance officers concerned had not been satisfied as to the relationships as claimed. Appeals before the appellate authorities had been dismissed on the same ground. When the applicants had become over-age, DNA tests had supported the claims as to relationships with the sponsors. The Secretary of State had power under section 21 of the 1971 Act to refer such cases to adjudicators for an opinion, but decided not to do so. Before the court counsel argued that the Secretary of State's decision in that regard was unreasonable. It was also argued that in the events which had happened and relying on ex parte Powis and ex parte Scally, the results of the DNA tests should be admitted as fresh evidence by the court, and on that evidence the original refusals and decisions on appeals should be quashed. Held: 1. There were no grounds for attacking the decision of the Secretary of State, or the reasons given in his letter under review. He was entitled to adopt the policy he had adopted and there was in the letter no indication that he had misunderstood his powers, wrongfully fettered his discretion or misdirected himself. 2. There was no inefficiency or negligence or breach of duty in the conduct of the entry clearance officers or the appellate authorities. The circumstances were distinguishable from those that obtained in ex parte Powis and ex parte Scally. There were no grounds for quashing the original decision in these cases.

Cases referred to in the Judgment:

R v Secretary of State for the Environment ex parte Powis [1981] 1 WLR 584: [1981] 1 All ER 788. R v Secretary of State for the Home Department ex parte Noor Uddin and anr [1990] Imm AR 181. R v Bolton Justices ex parte Scally [1991] 2 WLR 239. R v Secretary of State for the Home Department ex parte Abdul Rosed, Sunam Uddin and ors [1991] Imm AR 349. Hassan Miah and Mohamed Aslam v Secretary of State for the Home Department [1991] Imm AR 437.

Counsel:

R de Mello for the appellants; G Sankey QC for the respondent PANEL: Lloyd, Ralph Gibson LJJ, Sir John Megaw

Judgment One:

RALPH GIBSON LJ: These are renewed applications for leave to apply for judicial review of decisions by the Secretary of State for the Home Department after dismissal of those applications by Hutchison J. The applications now renewed are, firstly, by Saleha Khanam, who is the mother of Sunam Uddin, who is now aged 27. The decision in respect of which review is sought is the refusal to exercise the powers under section 21 of the 1971 Act. The second application is by Abdur Rahim as father of Angur Miah, who is now aged 27, and the decision in question there is refusing entry clearance and refusing to refer again under section 21. The third is by Nasib Ullah, who is father of Mohammed Ejaz, who is now aged 29, and again the decision in the application was not to exercise the powers under section 21 of the Act. The fourth is Sirajul Islam, who is now aged 26, and the decision is refusal under section 21. All these applications were heard on first application, as I have said, by Hutchison J and were dismissed on 15 February 1991. All the applicants were represented by counsel and the respondent was also represented, as he has been today in this application. They were heard together because they all raised essentially similar issues. They were all cases in which applications for entry clearance under what is now rule 53 of House of Commons paper 251, which deals with the admission of unmarried children under the age of 18, were refused on the ground that the entry clearance officer was not satisfied that they were the sons of the sponsors who claimed to be their fathers, and in which the relationship has subsequently been proved to exist by DNA testing, but at a time when the applicants have become adults over the age of 18 and therefore no longer entitled to claim entry as of right under proof of relationship and age. In presenting the applications to Hutchison J, Mr de Mello, who has appeared again in this court, argued by reference to the particular facts in the case of Abdul Rosed, on the ground that it was a suitable example for all. Hutchison J followed that course. That is one of the applications which has not been renewed. In this court the argument was advanced primarily with reference to the case of Ejaz. Before coming to the applications and by way of necessary introduction, reference must be made to the way in which the Home Office has dealt with applications of this nature. On 14 June 1989 the Secretary of State announced to the House of Commons the policy which he proposed to adopt in such cases. The relevant part of the statement can be seen set out in the judgment of McCullough J in the case of R v Secretary of State for the Home Department ex parte Noor Uddin and Aftab Ali [1990] Imm AR 181 at page 183. It has been referred to in argument on these applications so there is, I think, no need to set it out in detail now. On 22 May of this year two other renewed applications for leave to apply came before this court, consisting of Mustill LJ, Balcombe LJ and Bingham LJ. Both were overage reapplicants in essentially similar circumstances to those of these applicants. Two arguments were advanced to this court then. The first was that since the alleged relationship had been conclusively proved and was shown to have been wrongly rejected before, the two had a vested right of entry which the court should enforce. The second ground was that, assuming there to be no such vested right and assuming the earlier adverse decisions not to have been flawed, the policy itself announced by the Secretary of State, under which entry outside the rules had been refused, was unlawful, because unreasonable when applied to persons in the category of those applicants. This court rejected both submissions. The existence of the decision explains the limits within which Mr de Mello has been constrained to advance his arguments in this case. He has not found it necessary or useful to refer to that case and I do not refer to it any further, but it explains why certain arguments which were mentioned below were not pursued before this court. It is next necessary to mention the case of Noor Uddin to which I have already referred. The matter there can be explained briefly; I do not need to set it all out because it can be seen in the report of the decision. The argument was that the Minister had misapprehended the nature and extent of his powers under section 21 on reference if he was asked to make the reference. The learned judge examined the section, explained the nature and extent of the Minister's powers and in that case found that he had not, apparently, understood the nature and extent of them and therefore granted certiorari. It is not necessary to go into the matter further, but the relevance of the case will be seen when I come to the grounds of decision in these cases. These applications must be considered by reference to the terms in which the decisions of the Secretary of State were expressed. The argument has been conducted with reference to the letter of 24 September 1990, which was the letter relevant to, among others, the case of Mohammed Ejaz. Other letters in the case of Sunam Uddin were dated 19 December 1990, 15 October 1990 in the case of Angur Miah and a letter of 5 September in the case of Sirajul Islam. It is not suggested that there is anything relevantly different in the other letters as compared with that of 24 September, to which I will limit this judgment. The shape of the letters was to refer to the facts of each case under consideration. The letter then came to the grounds upon which the Secretary of State had decided that he would not refer the matter to the adjudicator under section 21, and his explanation of his decision. "The cases which you have asked the Secretary of State to refer to an adjudicator all involve persons originally refused entry clearance as children on relationship grounds who have now established relationship by means of DNA evidence. As you know, the Secretary of State set out in a statement of 14 June 1989, a copy of which I enclose, his general policy as to the circumstances in which he would be prepared to exercise his discretion outside the Immigration Rules where a reapplicant originally refused entry clearance as a child on relationship grounds is now able to establish relationship by means of DNA evidence, but is now aged 18 or over and does not qualify for admission under the requirements of the Rules relating to the admission of adults. Each case is considered on its own facts in the light of this policy, to assess whether it is appropriate to apply (or depart from) the policy and (if it is appropriate to apply the policy) to assess how the policy should be applied on the facts. The Secretary of State has carefully considered whether it would be appropriate to refer each of the above cases to an adjudicator for an advisory opinion under section 21 of the Immigration Act 1971. In doing so he has had regard in particular to the judgment of McCullough J in R v Secretary of State ex parte Uddin as to the scope of the power contained in section 21 of the 1971 Act. As regards children who are over the age of 18, and have established relationship by means of DNA evidence, having formulated the policy announced in June 1989 the Secretary of State does not consider it necessary or appropriate to ask an adjudicator to express an opinion on that policy. The Secretary of State could ask an adjudicator to express an opinion as to whether each of the applicants qualified for admission under the terms of the concession. However the Secretary of State takes the view that cases involving overage reapplicants should normally be considered in the context of a fresh application for entry clearance. He proposes in such cases to ask the entry clearance officer to reinterview the applicant as a matter of priority to establish the full facts of the case and the applicant's current circumstances; and to invite the applicant's representatives to submit any evidence which they would like to be taken into account in reaching a decision. The Secretary of State will then determine, on the basis of this information, whether it would be appropriate to exercise his discretion having regard to the terms of his statement of 14 June 1989. The Secretary of State sees no good reason at present to depart from this policy in the present cases. Nor does the Secretary of State think it necessary or appropriate to invite an adjudicator to express an opinion on information so provided. The Secretary of State takes the view that persons who have no applications or appeals outstanding, such as Sunam Uddin, should normally lodge fresh applications to be considered under the relevant requirements of the Immigration Rules in force on the date the applications are lodged. Accordingly the Secretary of State will not normally use his power under section 21 of the 1971 Act in such a way as to exempt applicants previously refused entry clearance from the need to lodge a fresh application before further consideration is given to their case. Nor will the Secretary of State normally exercise his power under section 21 of the 1971 Act in cases involving overage reapplicants such as Mohammed Ejaz and Javed Iqbal where he has already considered exercising his discretion under the terms of his statement of 14 June 1989 but has decided not to do so. The Secretary of State has carefully considered all the facts of the present cases, as well as the judgment of McCullough J in R v Secretary of State ex parte Uddin. He has concluded that it would not be appropriate to depart from his general approach in these cases. Accordingly, having considered all the circumstances of the cases which you have asked the Secretary of State to refer to an adjudicator, and the width of the power under section 21 as stated by Mr Justice McCullough, the Secretary of State has concluded that it would not be appropriate to refer any of these cases to an adjudicator for an advisory opinion under section 21 of the 1971 Act." Upon these renewed applications, application was made to amend the notice of application in each case, so as to include the following: "(a) In the light of the Secretary of State's refusal to remit for further consideration, further to the adjudicator tribunal, new DNA evidence establishing that the child is conclusively related to the parent, pursuant to the powers set out in section 21 of the Immigration Act, the applicant seeks certiorari to quash the decision of the relevant adjudicator or tribunal; and (b) a declaration that the relevant decision of the adjudicator tribunal is void or unreasonable." Reasons for the delay in bringing that matter for judicial review were set out in the terms of the proposed amendment, explaining that DNA evidence was a recent scientific discovery. The reference to the "decision of the relevant adjudicator tribunal" is in each case to whatever decisions were made, on the grounds that the decision maker was not satisfied that the applicant was related to the sponsor as alleged, either on initial decision or on appeal. I will come later to the basis upon which that ground of application was developed. Subject to what I say later, none of the decisions in question could be criticised by reference to the information before the entry clearance officer or the appellate tribunal. There was no misdirection. The relevant material was considered in good faith. The legislative system set up under the primary legislation and rules approved by Parliament and the administrative discretionary system operated under and by reference to the legislation and rules, contain provision capable of dealing with the circumstances which have arisen, namely, honest decisions made in accordance with the requirements of the law and upon the information available, but shown to have been wrong. The provisions to which I refer include rule 55 and in the discretion, and of course in section 21. In some cases the error -- that of failing to be satisfied of what turned out later to be true -- was largely caused by the dishonesty of the sponsor, which caused his evidence reasonably to be treated as unreliable. But I will, for the purposes of this application, assume that that was not the cause of the error in any of these cases. Making that assumption, it seems to me that, for the reasons which follow, there is put forward no arguable ground for quashing the decisions previously made in accordance with the law then in existence. I said, subject to some certain matters which I would deal with later. Mr de Mello invited the court to hold that the decision of the adjudicator on 15 February 1980 in the case of Ejaz, which can be seen at pages 107-110 of the bundle, shows procedural impropriety by taking into account extraneous matters. He went through all those matters. They are all concerned with matters of credit which caused the adjudicator not to have reliance on the evidence of the sponsor. I will say at once that, in my view, none of those matters put forward constitutes any reasonably arguable ground for supposing that the court would quash the decision on any of those grounds. Next, as to Abdur Rahim, where the son is Angur Miah, the decision letter was 15 October 1990 and the grounds of attack are set out at page 74. They were read out and examined by Mr de Mello. Taken singly and collectively, they do not constitute an arguable case of misdirection or error of law. They are concerned with such matters as the Secretary of State's view of the nature and quality of support or dependence afforded to the son by the father. They seem to me all to be arguments which could suitably be addressed to a Court of Appeal where an issue is available on an appeal on fact, but not to constitute an arguable ground for judicial review. I come then to the main contention which has been common to all these four applications, based by way of example upon the letter of 24 September 1990. It is that the decision not to refer under section 21 should be quashed, so that the Minister presumably would reconsider the matter of the reference in the light of any decision of the court. Reliance was placed upon the case of Uddin to which I have referred. Mr de Mello referred to the argument which he put before the judge and can be seen at page 5 at F of the judge's decision. The essential submission was that the letter shows that the Secretary of State misunderstood the nature of his powers under section 21. I regret to say that Mr de Mello never really succeeded in making clear to me what the nature of the argument was. He said, according to the best note that I could make, that the misconception under which the Secretary of State was labouring was that he seeks to obtain support from his policy statement of June 1989 by saying in effect that these agreed applicants may apply under the terms of the policy statement and I think we were to understand that this attributed remark of the Secretary of State continued "and having provided that I, the Secretary of State, do not have to refer any case under section 21". Next, as I understood it, he said that the Secretary of State regards the concession -- that is to say the policy statement of June 1989 -- as an adequate provision for the applicants in these circumstances; and, finally, that the court should infer from the letter that its practice is not to refer such cases under section 21. The terms of the letter have been set out above. I have considered it as best I can and I can find no arguable ground in that letter; no trace of misdirection, of misapprehension of his powers, of the wrongful fettering of his discretion, or frustration of legislative purpose contained in the section itself or other illegality to be found in that or in any of the decision letters. The letter seems to me to have been drafted with the greatest care, to demonstrate that, while the Secretary of State has announced his policy, it not being suggested that he was not entitled to have a policy, he does not bind himself in any way not to use the full extent of his discretion when it seems to him to be appropriate so to do. I see no arguable ground on the section 21 point in any of these cases. The remaining argument was based upon the amendment. That was that the earlier decision in each case is shown to have been wrong in fact, and fundamentally, by reference to the now available DNA evidence. Let it be assumed that there was no other defect in the decision, yet it is said certiorari can and should go on that ground alone, ie upon the basis of the new evidence discovered since the scientific procedure became available. Mr de Mello said that mistake in this context can be as deleterious as fraud. He argued further that since the Secretary of State has refused to use his powers under section 21 in these cases, the court should quash the earlier decisions, and the good for the applicants sought to be attained thereby, would be that the matter would be referred back to the decider of this question, and the decision would be made by reference to a date at which the applicants would no longer be treated as over age because of the terms of what was once rule 12 and is now rule 16 of the relevant provisions. The matter was put on the basis that the fresh evidence now tendered is admissible in these judicial review proceedings on the grounds indicated at page 840 of the White Book, which reads: "The principles on which fresh evidence can be admitted before the Divisional Court, or the single Judge, in judicial review proceedings are: (1) . . . (2) . . . [no reliance was placed on (1) or (2)] (3) where the proceedings are tainted by misconduct on the part of the minister or member of the inferior tribunal or one of the parties before it, fresh evidence is admissible to prove the particular misconduct alleged. Examples of such misconduct are bias by the decision making body, or fraud or perjury by a party. Where a party deliberately suppressed material facts with the intention of misleading the minister, it would be for the court to consider whether the conduct of that party could be described as fraudulent so as to permit the admission of fresh evidence" and the reference is to the case of R v Secretary of State for the Environment ex parte Powis [1981] 1 WLR 584, to which we were referred. The submission advanced by Mr de Mello on behalf of the applicants was that what happened in each case before the deciding body was analogous to misconduct of one sort or another, and he relied upon the decision of the Divisional Court, Watkins LJ and Hutchison J, in the case R v Bolton Justices ex parte Scally [1991] 2 WLR 239. The nature of that case can be indicated briefly by reference to the headnote. Each applicant had been arrested and charged with driving with excess blood alcohol. The laboratory analysis of a specimen of blood showed that the proportion of alcohol exceeded the prescribed limit. Each applicant pleaded guilty to a breach of the section and was convicted. It was subsequently discovered that at the time of taking the specimens the medical cleansing swabs in some of the blood sampling kits then in use in the Greater Manchester area contained alcohol. The Crown Prosecution Service had since decided not to prosecute in cases where the specimens might have been contaminated by use of such swabs. The judgment of Watkins LJ examined the authorities and the conclusion can be summarised in the words of Watkins LJ at page 256 in the following words: "What happened here was that, there being no dishonesty, the prosecutor (a combination of police and CPS) corrupted the process leading to conviction in a manner which was unfair, for it gave the defendants no proper opportunity to decide whether to plead guilty or not guilty; indeed it wrongly denied them a complete defence to the charge. In my view, that is conduct analogous to fraud, collusion or perjury if ever there was." Mr de Mello submitted that this court should recognise that it is an arguable case that what has happened in this case is also analogous to fraud or misconduct. He referred to inefficiency on the part of the entry clearance officer or the adjudicator. For my part, I find it impossible to accept that submission as containing an arguable point. There very plainly was no inefficiency or negligence or breach of duty on the part of anyone concerned with these proceedings so far as concerns entry clearance officer or adjudicator. There was, as I said earlier in this judgment, no evidence of misdirection, lack of good faith or of the application of the rules conscientiously. What there was, was misfortune. In my view there is no arguable ground upon which the court could grant judicial review of those decisions. If I am right on that, there is no point in pursuing further what the consequences would be if leave were given and the decisions were quashed. For my part, I would dismiss these applications.

Judgment Two:

SIR JOHN MEGAW: I agree.

Judgment Three:

LLOYD LJ: I also agree.

DISPOSITION:

Applications dismissed

SOLICITORS:

Carter Davidge & Co, Birmingham (Uddin and Ejaz); Rust McKie & Co, Birmingham (Rahim); Tyndallwoods & Millichip, Birmingham (Sattar); Treasury Solicitor.