George Davoren v. Secretary of the Home Dpartment



15 February 1996

Court of Appeal: Rose, Aldous LJJ
Sir lain Glidewell

Leave to enter-refusal-passenger smuggling cocaine-custodial sentence-diagnosed as suffering from AIDS-Home Office guidance policy-distinction drawn between those seeking leave to enter and those seeking variation of leave-whether following custodial sentence proper to refuse leave to enter-the limited meaning of "when already there " in s. 3(1)(b) of the Act-whether decision irrational-the test to be applied. Immigration Act 1971 (as amended) ss. 3(1)(b), 4, 11(1), sch. 2 para. 21(1).

Renewed application for leave to move for judicial review following refusal by Tuckey J. The applicant was a citizen of the Federation of St Christopher and Nevis. On arrival in the United Kingdom he sought leave to enter as a visitor. He was discovered to be smuggling cocaine. He was arrested and ultimately received a substantial custodial sentence. While in prison he was diagnosed as suffering from AIDS. When he qualified for parole he was detained and refused leave to enter the United Kingdom: the Secretary of State decided to remove him to St Kitts. He refused an application for the applicant to remain in the United Kingdom where he would be able to receive better medical treatment.

The refusal of leave to enter was in conformity with the provisions of the Home Office guidance policy on sufferers from AIDS.

Before the court counsel argued that on a true construction of section 3(1)(b) of the 1971 Act, the Secretary of State had power to grant the applicant leave to remain without first deciding whether he should be granted leave to enter: if that were so, the applicant could benefit from less restrictive requirements of the policy. Counsel also argued that the Secretary of State had acted irrationally in not allowing the applicant to remain in the United Kingdom in the light of the compassionate circumstances of the case.


1. The interpretation put by counsel on section 3(1)(b) of the 1971 Act could not be sustained. The phrase "when already there" related to illegal entrants: it had no application to the circumstances of the applicant.

2. The immigration officer had correctly treated the application to remain in the United Kingdom as an application for leave to enter.

3. Applying the guidelines approved in ex parte Smith, the decision of the Secretary of State could not be held to be irrational.

R de Mello and L Daniel for the applicant

S Kovats for the respondent

Cases referred to in the judgments:

R v Secretary of State for the Home Department ex parte George Davoren (unreported, QBD, 2 February 1996).

R v Ministry of Defence ex parte Smith [1996] 1 All ER 257.

ROSE LJ: I will ask Sir lain Glidewell to give the first judgment.

SIR IAIN GLIDEWELL: This is a renewed application for leave to apply for judicial review, after refusal by Tuckey J on 2 February 1996. The challenge is to the decision of the Chief Immigration Officer at Gatwick Airport on 25 January 1996 to refuse the applicant leave to enter the United Kingdom and a failure by the Home Secretary to grant such leave.

The facts can be stated quite shortly. The applicant, Mr. Davoren, is a native of St Kitts. In the United Kingdom he is subject to immigration control; in other words, he requires leave if he is to enter the United Kingdom legally. He arrived at Gatwick Airport on 21 January 1993. He sought leave to enter as a visitor. He was found to be in possession of a substantial quantity of cocaine. He was refused leave to enter on the ground that his presence in the United Kingdom would not be conducive to the public good. That, so to speak, was the immigration part of the process, and notice was given to him that he would be removed on a specified flight back to St Kitts within a matter of days.

However, the criminal part of the process then immediately started. He was arrested and charged with the illegal importation of cocaine. At Croydon Crown Court on 19 April 1993 he pleaded guilty. He was sentenced to six years' imprisonment on 10 May 1993, the lapse of time being by reason of the necessity to obtain reports.

Apparently he behaved well while he was in prison. However, in August 1994 he suffered an acute attack of pneumonia. He was then diagnosed as HIV positive and it was found that he was suffering from AIDS. He is now in a much weaker state and he has a poor life expectancy. It is unnecessary to go into more detail than that.

So far as the sentence of imprisonment is concerned, his parole licence recently started to run; in other words, had he been given leave to enter the United Kingdom, he would have been released from prison a few days ago. However, he was immediately rearrested under the immigration powers and he is now in detention awaiting the result of this application for leave. I should say that at one time it was thought that a recommendation for his deportation had been made by the Crown Court, but that was not so.

On 23 January 1996 solicitors acting on his behalf sought leave which in terms was for him to remain in the United Kingdom on compassionate grounds. Put shortly, those compassionate grounds are that if he is returned to St Kitts he will not receive such medical treatment as he is presently receiving here, which will not, as I understand it, cure his disease, but which it is hoped will help to prolong his life so far as possible.

That application was refused very quickly by a letter from the Chief Immigration Officer at Gatwick to the solicitors acting for him dated 25 January 1996. It reads, in part:

"In the light of the above circumstances and your correspondence of 23 January, your request on Mr. Davoren's behalf for entry to the United Kingdom outside of the Immigration Rules has been considered but I regret that in the particular circumstances of the case the Immigration Service are not prepared to exercise such discretion in his favour. In reaching this decision full account was taken of paragraph 4 of the Immigration and Nationality Department B Division Instructions regarding AIDS and HIV positive cases."

I break off to say that the Home Office has promulgated a document which is advice or a direction to members of its staff on "how to deal with cases involving those suffering from AIDS or who are HIV positive". The document, in paragraph 2.2, says that the fact that an applicant has AIDS or is HIV positive is not in itself sufficient grounds to justify the exercise of discretion where the requirements of the rules are not met. Paragraphs 4 and 5 of the document differentiate between the guidance given in relation to those seeking leave to enter and the guidance given in relation to people who have entered the United Kingdom. They read:

"4.On entry

4.1The policy and practice adopted on entry at ports will be to adhere to the provisions of the Rules. [That means the well known House of Commons rules governing the conduct of immigration officers dealing with those who seek leave to enter.]

Where a passenger is found to be suffering from AIDS, the advice of the PMI will be sought in the normal way in order to determine whether the passenger can satisfy the Rules. Where a passenger does not qualify, entry is to be refused.

5.After entry

5.1Any application for leave to remain where there is evidence that AIDS/HIV is a factor should normally be determined on its merits under the Immigration Rules. However, in some cases there may be strong compassionate circumstances which justify the exercise of discretion outside the Rules even though treatment is provided on the NHS.

5.4In many cases the medical facilities and treatment available in the person's country of origin will be substantially less advanced than those available in the United Kingdom. This is likely to be true as regards any serious illness and does not in itself constitute grounds for allowing someone with AIDSIHIV to remain. However, there may be cases where it is apparent that there are no facilities for treatment available in the applicant's own country. Where evidence suggests that this absence of treatment would significantly shorten the life expectancy of the applicant it will normally be appropriate to grant leave to remain. "

To return to the Chief Immigration Officer's letter of 25 January 1996, the paragraph I was formerly reading continues:

"In reaching this decision full account was taken of paragraph 4 of the Immigration and Nationality Department B Division Instructions regarding AIDS and HIV positive cases. You will be aware that paragraph 4 of this instruction which relates to persons whose applications are for leave to enter the United Kingdom states ...

[Part of the paragraph is then set out]

While we are saddened to learn of Mr. Davoren's medical circumstances we do not accept, in line with Departmental Policy, that it is right generally, or in the individual circumstances of this case, to allow an AIDS sufferer to remain here exceptionally when, as here, treatment in this country is carried out at public expense, under the National Health Service. Nor would it be fair to treat AIDS sufferers any differently from others suffering medical conditions.

Whether available care abroad matches that available under the National Health Service is not the issue because it is not considered that we could realistically accept a general commitment that the quality and/or availability of AIDS or any other medical treatment in a particular country should form a proper basis to allow someone who relies on publicly funded treatment here to enter exceptionally.

We have been advised by Mr. Davoren's doctor that he is fit to travel and in the circumstances will shortly conclude arrangements for his return to St Kitts.

I am sorry that I cannot send a more welcome reply."

That is the decision, coupled with a refusal by the Home Secretary to reconsider his position, which it is sought by this procedure to challenge.

There is evidence that Mr. Davoren, while in prison since he has been diagnosed, has been receiving treatment of a kind which will probably not be available to him in St Kitts. There is no clear evidence that no treatment will be available to him, but the material before the court makes it clear that he has been receiving a drug called AZT (he was taken off it for a time, but it seems that he has gone back on it) and nebulised pentamidine, and it seems that neither is likely to be available to him if he returns to St Kitts. There is I practitioner that taking him off those an expression of opinion by a medical drugs may well result in his expectancy of life (which, regretfully, is already short, if medical opinion is correct) being shorter than it would be if he remained in the United Kingdom and continued to receive that treatment. That is the compassionate ground and on the face of it, of course, it is a strong compassionate ground for seeking leave for him to stay here.

The decision is one made, as I hope I have made clear, by the Chief Immigration Officer, not by the Home Secretary. Section 3(1) of the Immigration Act 1971 provides, so far as is material:

"… where a person is not [a British citizen]

(a)he shall not enter the United Kingdom unless given leave to do so in accordance with this Act; and

(b)he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;"

Section 4 deals with the administration of control, and 4(1) makes it clear that the power to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers; the power to give leave to remain in the United Kingdom shall be exercised by the Home Secretary. It is clear that the immigration officer took the view that what he was doing was considering an application for leave to enter and refusing that application. That is what he says he was doing. It was for that reason that he relied upon the guidance given in paragraph 4 of the instruction document to which I have referred.

The verb "enter" and the noun "entry" in relation to immigration matters have a particular meaning within the legislation. If a person seeks leave to enter and the immigration officer needs time to decide whether or not he should be granted that leave, then, under the provisions of the Act, he may be either detained while such consideration goes on, or he may, exceptionally, be temporarily admitted to the United Kingdom until such time as the decision whether to grant him leave to enter is made: Act of 1971, schedule 2, paragraph 21(1). But he has not been given leave to enter and so he is deemed not to have entered the United Kingdom: see section 11(1). He is nevertheless physically within the United Kingdom, whether he is detained or whether he has been temporarily admitted pending the decision whether to grant him leave to enter.

Mr. de Mello's first submission is that the phraseology of section 3(1)(b) "he may be given ... when already there leave to remain in the United Kingdom" must mean that if somebody is physically in the United Kingdom, whether or not he has been given leave to enter, the Home Secretary has the power to grant him leave to remain without going through the process first of deciding whether he should be given leave to enter. There is no authority for that proposition, save for the fact that the words themselves "when already there", according to Mr. de Mello's submission, suggest that this can apply to anybody who is physically in the United Kingdom, whether legally or illegally, whether with leave to enter or not. As far as it goes, he relies on a sentence in Macdonald's Immigration law and practice (4th edition) at page 82, paragraph 4.3, where the learned authors say:

"Leave to remain is granted as a matter of discretion to those who have no leave but are already in the UK."

Persons who have not been granted leave to enter and are here illegally (whether because they have somehow or other evaded the immigration authorities or whether, more probably, because they have originally entered by deception and thus have no valid leave) are illegal entrants, and are treated under the Act as having entered the United Kingdom: see section 33(1). Thus if, as sometimes happens, the Home Office makes a decision which will have the effect of allowing such a person to stay in the United Kingdom, such a decision is thus properly the grant of leave to remain, and it is to this situation that the sentence in Macdonald clearly relates. The authors deal with the situation of somebody such as Mr. Davoren where they say, in the immediately preceding paragraph, that persons seeking leave to enter "will still not be treated as having entered if they are detained by immigration officers pending examination or removal or are temporarily admitted ... while liable to such detention."

It follows that in my judgment, although what in terms the solicitors for the applicant were asking for was leave to remain in the United Kingdom, the Chief Immigration Officer at Gatwick was entirely correct to treat it as an application for leave to enter, since no such leave had ever been granted to this applicant. Accordingly, he was correct to apply the guidance given to him in paragraph 4 of the Home Office guidance dealing with those suffering from AIDS. The argument that he failed to take into account a relevant consideration (namely, the provisions of paragraph 5 of that document, which he would only have to take into account if what he was considering was an application for leave to remain) I would reject for the reasons I have sought to make clear.

Mr. de Mello's second argument is that the Chief Immigration Officer originally, and then the Home Secretary when he declined to reconsider the matter, acted unreasonably (that is to say, irrationally) in not acceding to the compassionate circumstances of this applicant's plea. Mr. de Mello, who has addressed us with his usual clarity and eloquence, reminded us of a number of authorities, the gist of which it seems to me is conveniently summarised in a passage from the judgment of this court in R v Ministry of Defence ex parte Smith [1996] 1 All ER 257. Sir Thomas Bingham MR. started that part of his judgment which was headed "Irrationality" by dealing first with the test which the court should apply. He said:

"Mr. David Pannick QC (who represented three of the appellants and whose arguments were adopted by the fourth) submitted that the court should adopt the following approach to the issue of irrationality:

'The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.'

This submission is in my judgment an accurate distillation of the principles laid down by the House of Lords in Bugdaycay v Secretary of State for the Home Department [1987] 1 All ER 940... and Brind v Secretary of State for the Home Department [1991] 1 All ER 720.

Then he quoted passages from the speeches of Lord Bridge and Lord Templeman in those cases.

I have borne that principle well in mind. Nobody can but have great sympathy for this applicant in the plight in which he finds himself. If he is to return to St Kitts, it seems that he will be unable to work because of his illness. His expectation of life, if the medical evidence is correct, may well be shorter than it would be if he remained under the treatment that he is receiving in the United Kingdom, and in many ways his plight will be great. On the other hand, he would not be here if he had not come on a cocaine smuggling expedition back in 1993; and if he had not been imprisoned he would have gone back to St Kitts, if he had ever come here at all, long before his AIDS was diagnosed.

Taking account of the fact that the court must give most anxious scrutiny to a decision which involves questions particularly of life expectancy, as this one apparently does, nevertheless I cannot find that an argument in this case that the decision of the Chief Immigration Officer was irrational is one that has any hope of success at all. Putting it the opposite way, it seems to me to be one which was well within the bounds of his discretion, and thus is not one with which this court can properly interfere.

Accordingly, in my view, if this court were to grant leave, judicial review would be bound to be refused. I would therefore refuse this renewed application.

ALDOUS LJ: I agree.

ROSE LJ: I also agree. The application is therefore refused.

Application refused

Solicitors: Simonetta Viinikka, London WC1; Treasury Solicitor


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