R v. Secretary of State for the Home Department, Ex parte Hardep Singh Sangha


2 February 1996

Outer House of the Court of Session: Lord Marnoch

Political asylum-refused-appeal to special adjudicator withdrawn on representative's advice-whether judicial review of refusal appropriate-whether representative's alleged poor advice constituted "exceptional circumstances"-whether the merits of the case were to be considered in assessing "exceptional circumstances". Political asylum-inability of government to protect its nationals-whether temporary absence of satisfactory protection sufficed-need to demonstrate the authorities condoned or were complicit in the alleged persecution. Handbook on procedures and criteria for determining refugee status para. 65. The petitioner was a citizen of India. He was refused asylum by the Secretary of State. He lodged an appeal but on the advice of his representative (UKIAS) the appeal was abandoned. He sought judicial review of the Secretary of State's refusal of asylum. The court considered whether the abandonment of the appeal on what was claimed to be bad advice constituted "exceptional circumstances" justifying judicial review: it considered whether in assessing "exceptional circumstances" it should take into account the merits of the substantive case.


1. The petitioner had failed to show any "exceptional circumstances" that would justify judicial review, on the basis that he had failed to pursue his statutory rights of appeal.

2. The court doubted whether it was right (as had been done in Alagon) to consider the merits of the substantive case when assessing "exceptional circumstances".

3. In any event, when the merits of the case were examined, the petitioner's case had no substance.

4. In that regard the petitioner claimed that the authorities were unable to offer him protection against terrorists: however for the petitioner to establish that the terrorists were agents of persecution, he had to show that the authorities condoned or were complicit in their activities, which he had failed to do.

M Bovey for the petitioner A Dewar for the respondent.

Cases referred to in the judgment:

Mitchell Construction (Scotland) v Brands Transport & Demolition Ltd [1975] SLT (Notes). R v Diggines ex parte Rahman and ors [1985] QB 1109. R v Chief Constable of the Merseyside Police ex parte Calveley [1986] QB 424: [1986] 2 WLR 144: [1986] 1 All ER 257. R v Secretary of State for the Home Department ex parte Swati [1986] 1 WLR 473: [1986] Imm AR 88: [1986] 1 All ER 717. R v Secretary of State for the Home Department ex parte Bugdaycay [1987] 1 AC 514: [1987] Imm AR 250. Halliday v Pattison [1988] SLT 235. Kirkwood v City of Glasgow District Council [1988] SLT 430. Secretary of State for the Home Department ex parte Shahib Al-Mehdawi [1990] Imm AR 140. Tarmac Econowaste Ltd v Assessor for Lothian Region [1991] SLT 77. Bain v Hugh L S McConnell Ltd [1991] SLT 691. Spence v Davis [1993] SLT 217. Sodhi Singh v Secretary of State for the Home Department (unreported, CS, 20 January 1993). R v Secretary of State for the Home Department ex parte Baljit Singh [1994] Imm AR 42. R v Secretary of State for the Home Department ex parte Selladurai Jeyakumaran (of 28 June 1985) [1994] Imm AR 45. Karamjit Singh Chahal v Secretary of State for the Home Department [1994] Imm AR 107. R v Secretary of State for the Home Department ex parte Pun Yin Choi (CS 6 July 1994) GWD 27-1593. Alagon v Secretary of State for the Home Department [1995] SLT 381. Birungi v Secretary of State for the Home Department [19951 Imm AR 331.


This petition, so far as live, seeks declarator that in refusing the petitioner political asylum the respondent, who is the Secretary of State for the Home Department, erred in law et separatim reached an unreasonable decision. It also seeks reduction of that decision. The case was called before me for a first hearing on 4 January 1996 and following days. The decision in question is contained in a minded to refuse letter dated 26 November 1992 and a formal or final refusal letter dated October 1993. There is, however, this peculiarity in the case, that the petitioner appealed against the decision to the immigration adjudicator but abandoned that appeal towards the end of 1994. He claims that he did so on the advice of a Mr Nabi who, I was told, was a senior, but unqualified, counsellor with the United Kingdom Immigration Advisory Service. The hearing before me took the form of a debate on the respondent's pleas-in-law to the effect that the petition was both incompetent and irrelevant. While however, I agree that the failure to exhaust an alternative remedy can possibly be seen as, raising a question of competency, I also see the force of the opposite argument that, so viewed, it would automatically preclude recourse to judicial review. That was not, as it happens, the position adopted on either side of the Bar. In the circumstances, therefore, I prefer to view the matter, as, I think, did counsel for the respondent,-as being more properly one of relevancy. Counsel for the respondent also argued that the petitioner's averments as to the merits or substance of the claim for declarator were in any event irrelevant. As regards the abandonment of the appeal to the immigration adjudicator, parties were agreed that "exceptional circumstances" had to be shown before the failure to pursue an alternative statutory remedy could be excused. There was, however, an important question between them as to what might amount to "exceptional circumstances" and I was accordingly treated to a fairly extensive citation of authority on that subject. In England the position seems to be well summed up by the following dictum of Sir John Donaldson MR in R v Secretary of State for the Home Department ex parte Swati [1986] 1 All ER 717 at the bottom of p 723:

"… it is well established that, in giving or refusing leave to apply for judicial review, account must be taken of alternative remedies available to the applicant. This aspect was considered by this court very recently in R v Chief Constable of the Merseyside Police ex parte Calveley [1986] 1 All ER 257, [1986] 2 WLR 144 and it was held that the jurisdiction would not be exercised where there was an alternative remedy by way of appeal, save in exceptional circumstances. By definition, exceptional circumstances defy definition, but, where Parliament provides an appeal procedure, judicial review will have no place unless the applicant can distinguish his case from the type of case for which the appeal procedure was provided."

The case referred to in that dictum, viz R v Chief Constable of the Merseyside Police ex parte Calveley was a case in which the delay had been such that the statutory appeal was considered inappropriate. So far as Scotland is concerned, the relevant authorities up to 1990 were conveniently reviewed by Lord Clyde in Tarmac Econowaste Ltd v Assessor for Lothian Region [1991] SLT 77. In all the cases reviewed it seems that the exceptional or special circumstances envisaged by the court were of a procedural nature or, at all events, were special to the failure to pursue the statutory remedy. The next case cited, in chronological order, was Bain v Hugh L S McConnell Ltd [1991] SLT 691 which was a decision of the Second Division relative to the reduction of a Sheriff Court Decree. There was no dispute but that the Decree in question was ultra vires and that at one point there had been an agreement between the parties' respective agents that an appeal to the Court of Session should proceed unopposed. The problem was that the pursuer's agents had failed to take the necessary steps to that end. In these very unusual circumstances the court, affirming the Lord Ordinary, held the action of reduction to be competent. In delivering the opinion of the court the Lord Justice Clerk, at p 695 J, said:

"It is, in our opinion, well established that a decree may be reduced in exceptional circumstances if reduction is necessary to produce substantial justice."

Read in its context and in the context of the authorities reviewed by the Lord Justice Clerk in his opinion, it respectfully seems to me that the reference to substantial justice was a reference, either to curing injustices of a procedural, albeit serious, nature or, possibly, to the requirement that there be a prima facie case for enquiry in regard to the ultimate merits of the dispute. At all events, the following dictum of Lord Kincraig in Mitchell Construction Co (Scotland) Ltd v Brands Transport & Demolition Ltd [1975] SLT (Notes) at p 58 was cited with apparent approval:-

"Reduction of a Sheriff Court decree as a means for review of a decision is not competent when other means are prescribed, unless there are exceptional circumstances justifiably excusing a party from failing to use those prescribed means."

The next case cited-and one strongly founded on by Mr Bovey for the petitioner,-was Alagon v Secretary of State for the Home Department [1995] SLT 381. In that case, which was a petition for reduction of an unappealed decision of an immigration adjudicator, Lord Prosser reached the view on the ultimate merits of the dispute not only that the decision of the adjudicator was wrong in law and ultra vires but that the petitioner had actually been entitled to a decision in his favour. There then follows this passage:-

"The petitioner's application for judicial review was founded upon the law as stated in Bain v McConnell. It was not necessary to show such injustice in the original proceedings as to make them a nullity; a decree could be reduced 'in exceptional circumstances' if reduction were necessary 'to produce substantial justice': Bain at p 695 J. It was not disputed that, generally speaking, a party would be responsible for his agent's failures, and could not invoke the fact that a failure was committed by an agent as a basis for avoiding its consequences. But that was indeed only the general position (Adair v Colville & Sons, Viscount Dunedin at [1926] SC (HL), pp 55-56; [1926] SLT at pp 592-593). Provided that there were exceptional circumstances, and that reduction was necessary to produce substantial justice, it was clear from Bain v McConnell that review and reduction could be permitted notwithstanding that there had been a failure to pursue other remedies, through a failure by either an agent or the party himself."

Lord Prosser thereafter entertains as a possible exceptional circumstance his own decision on the merits that "the adjudicator's refusal positively deprived the petitioner of an entry clearance to which I hold her entitled…". As to the authority of Alagon I would make two comments. In the first place it appears to have been conceded that, as regards the failure to pursue alternative remedies, the test in a petition for judicial review was precisely the same as in an action for reduction of an inferior court decree. This may be so but is not, I think, self-evident. Second, so far as the authorities cited to me were concerned, Alagon was the first case in which a view on the merits was itself treated as relevant to the matter of exceptional circumstances. In that regard, with the greatest of respect to Lord Prosser, I cannot but question the logic of considering the merits of an application before deciding as a separate matter, as it seems to me, that the case surmounts the initial hurdle of exceptional circumstances. There might, after all, be just as much merit in a case where admissions by the respondent were made less freely and where, at least as a matter of procedure, proof would be required. Counsel for the respondent urged me, if necessary, to reject Lord Prosser's approach. The only other authority cited to me in this connection was Pun Yin Choi, Petitioner (1994) (unreported). In that case Lord Cameron of Lochbroom considered the merits along with the question of exceptional circumstances, but he appears to have done so without the benefit of either the argument or citation of authority with which I was favoured in the instant case. His Lordship concluded his opinion by saying that he did not feel justified in holding that the case was "not one in which special circumstances arose such as to take the case out of the general rule". However, both parties in the present case were, I think, agreed that the onus of establishing that special circumstances existed was an onus which rested firmly on the petitioner. In the result, counsel for the respondent submitted that no exceptional circumstances could be found in the present case. The fact that the petitioner had allegedly received unsound advice from Mr Nabi was nothing to the point. The general rule was that a party had to take responsibility for the failings or failures of his agent; Halliday v Pattison [1988] SLT 235, Kirkwood v City of Glasgow District Council [1988] SLT 430; Alagon v Secretary of State for the Home Department, cit sup at p 388D. In Bain v McConneli cit slip, reduction had been allowed despite the negligence of the pursuer's agent, but the decision depended essentially on the nullity of the original interlocutor and the advantage taken by the defender's agents of the negligence in question. More particularly, in Secretary of State for the Home Departement v Shahib Al-Mehdawi [1990] Imm AR 140 the House of Lords had held, in the context of immigration, that the loss of opportunity to have a case heard through the default of a party's advisers could not be relied upon as giving rise to either lack of natural justice or procedural impropriety. Lastly, even if regard were had to the merits there was nothing obviously wrong with the reasoning set out in the respondent's decision letters and the petitioner's pleadings were irrelevant in that respect also. Mr Bovey, for the petitioner, took his main stand on what he claimed were the merits of his client's application and submitted that this, in turn, was an important exceptional circumstance. In so submitting he founded on Alagon, cit slip and Pun Yin Choi, cit sup. As indicated above I do have reservations about that approach but I nonetheless allowed Mr Bovey to address me on the subject of the wrong which he claimed had been done to his client. In the event, Mr Bovey's submissions regarding the invalidity of the respondent's decision underwent considerable modification in the course of his address. Initially Mr Bovey submitted that in the letter of 26 November 1992 insufficient reasons had been given by the respondent for rejecting the petitioner's account of torture and brutality when detained by the police in India in respect of his links with an organisation known as AISSF at or about the end of 1990. When, however, it was pointed out that the true import of the letter was that, even accepting the petitioner's account of torture and brutality, the situation he described was still not one entitling him to asylum, the submission came to be that the respondent's approach to the question of asylum was simply unsound in law. While there is no good substitute for reading the letter in its entirety the approach in question is, I think, probably encapsulated in the following two paragraphs:

"The Secretary of State has taken into account the following facts: you arrived in the United Kingdom on or around I March 1991 but did not claim asylum here until 17 July 1991. The Secretary of State has noted your claim that the original asylum questionnaire was completed on your behalf with information that you subsequently stated to be fictitious. The Secretary of State understands that the AISSF is not a proscribed organisation but it has been linked with terrorist activities and, without wishing to condone any mis-treatment you may have received whilst detained, it is understandable that the police would wish to question you regarding your involvement with them. It is also understandable that the police would wish to question your family regarding your whereabouts given your involvement with the AISSF and the circumstances of your departure from India. The Secretary of State has also had regard to the current situation in the Punjab. He is aware that since the mid-1980s the inhabitants of the Punjab-both Sikh and Hindu-have been subjected to an increasingly violent campaign of terrorism and violation of human rights by Sikh extremists who support the establishment of an independent homeland. This violence has been targeted against those who do not support these aspirations, including moderate Sikhs, members of other religious groups and the institutions of government including elected politicians, civil servants and individual members of the security forces and their families. Sikh terrorists have sought to disrupt the democratic process by publicly threatening to kill, and in fact killing, some of those who stand and those who exercise their right to vote in local and national elections: 27 candidates in the postponed June 1991 elections were murdered by terrorists. Sikh terrorists have also sought to subvert the judicial process and freedom of the press by intimidation and murder of members of the judiciary, trial witnesses, newspaper editors and journalists. Since June 1989 Sikh terrorists are believed to have been responsible for the murders of over 2,400 civilians and of some 500 security force personnel: 43 members of the families of police officers in the Punjab were killed by Sikh terrorists in the month o September 1991.

With this in mind the Secretary of State believes that the police are justified in pursuing enquiries in an attempt to combat serious terrorist crime to maintain law and order and to protect the civil, political and human rights of members of the community in the Punjab of all races and religions. Nevertheless, the Secretary of State is aware of allegations that members of the security forces have violated the human rights of individuals in detention. The Indian Government have acknowledged that human rights violations have occurred and they have given assurances that all allegations of wrong-doing are investigated and that action is taken against those found responsible. The Secretary of State understands that up to March 1991 more than 150 security force personnel have been punished for misconduct in the Punjab. The Secretary of State considers that the inability of the Indian Government to control some renegade elements of its security forces is part of the breakdown of law and order associated with the campaign of terrorism waged by the Sikh extremists, but he does not accept that this amounts to a state of persecution within the terms of the 1951 United Nations' Convention." (my italics)

As I understood Mr Bovey's submissions,-which were, however, some what diffuse,-his real objection was to the last (and italicised) sentence of the passage which I have just quoted. The argument was that, so long as there was doubt concerning the safety of the petitioner, the respondent was obliged to grant him asylum. In this connection reference was made, in chronological order, to R v Secretary of State for the Home Department ex parte Selladurai Jeyakumaran [1994] Imm. AR 45, being a report of a case decided by Taylor J, as he then was, on 28 June 1985, particularly at p 48; R v Secretary of State for the Home Department ex parte BaIjit Singh [1994] Imm AR 42 and Karamjit Singh Chahal v Secretary of State for the Home Department [1994] Imm AR 107, particularly per Staughton LJ at p 117. It is true that in all of these cases importance is attached to the presence or absence of statements by the Secretary of State regarding the safety of the petitioner on his return to his native land, but in none of these cases do I regard anything said by the court as going beyond what is said in paragraph 65 of the Handbook on procedures and criteria for determining refugee status issued by the UNHCR in September 1979. That paragraph is referred to, in terms, in the first two of the three cases cited and is in the following terms:

"65.Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned. A case in point may be religious intolerance, amounting to persecution, in a country otherwise secular, but where sizeable factions of the population do not respect the religious beliefs of their neighbours. Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection."

In the present case Mr Bovey submits, I think, that the sentence to which I have drawn attention is tantamount to a statement that the authorities are unable to offer effective protection. In my opinion, however, even if these guidelines were to be taken as definitive,-which they are not (Birungi v Secretary of State for the Home Department [1995] Imm AR 331 at p 335),-the word unable is, and must be, open to interpretation according to the circumstances of any particular case. In this connection it is, perhaps, instructive that in the draft "Guidelines for Harmonised Asylum Policy t e matter is dealt with thus:-

"Where…public authorities are unable to provide adequate protection … the temporary absence of satisfactory protection is not sufficient in itself. A pre-condition will be that in general the measures taken by the state concerned to protect its nationals against persecution by third parties have proved to be manifestly inadequate."*[1]

At all events I respectfully adopt the view expressed in Macdonald's immigration law and practice, 4th ed, at paragraph 12.40 to the effect that the real underlying issue is whether the authorities should be regarded as condoning or as being complicit in the persecution in question. On that approach, and having in mind what is said earlier in the letter regarding assurances that "all allegations of wrong-doing are investigated and that action is taken against those found responsible", I am quite unable to say that the conclusion reached by the respondent is either unreasonable or unsound as matter of law. In any event, the matter of the future safety of the petitioner only arises if he otherwise satisfies the requirements of the 1951 Convention relating to the status of refugees. In terms of article 1A(2) the requirements are that "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion" the petitioner is outside the country of his nationality and is "unable or, owing to such fear, is unwilling to avail himself of the protection of that country..." Counsel for the respondent submitted,-and I accept his submission,-that the earlier part of the above-quoted excerpt from the respondent's decision letter made it clear that the petitioner had not been detained and/or persecuted for reasons, or even perceived reasons, of "race, religion, nationality, membership of a particular social group or political opinion", but for reason of his suspected involvement with terrorist and/or criminal activity. Of course I accept that the one may shade into the other and that there may be areas of overlap. In that situation it seems to me that the effective reason for detention and/or subsequent mistreatment is what is important. If the position were otherwise then the Convention would apply to any situation where there was a well-founded fear of mistreatment regardless of the reasons leading up to it. As to this aspect of matters it seems to me that the present case is virtually indistinguishable from R v Secretary of State for the Home Department ex parte Baljit Singh, cit sup. Auld J summarises the facts at the top of page 43 of the report as follows:-

"The applicant is a Sikh and a member of a body which seeks the establishment in the Punjab of an independent Sikh state to be known as Kalistan. He has claimed asylum as a refugee in this country, broadly based on allegations of persecution by members of the police force in his home country acting outside the law."

These facts are very similar to, if not identical with, the facts of the present case and it was argued, inter alia, that,

"the Secretary of State, in his consideration of the likely enquires that the police might make of him if he were to return, (had) failed to take account that their conduct and their enquiries would be conducted unlawfully."

In dealing with that argument Auld J says this:-

"As to the second ground of application, the thrust of it appears to be that the Secretary of State's view that police inquiries into the applicant's involvement with any terrorist organisation in the Punjab would be justifiable amounted to a view that torture was a justifiable police inquiry into terrorist activity. That is not how the Secretary of State regarded it. It is clear, both from the minded to refuse letter and the subsequent letter in March 1993, that what the Secretary of State had in mind quite properly was that the applicant was a member of a body, or associated with a body, allegedly terrorist in nature and acting unlawfully in its own country and that the status of a refugee should not normally be given to someone facing the legitimate processes of law within his own country properly applied. It is implicit in the Secretary of State's two letters that he was of the view that steps had been taken to ensure that they would be properly applied. There is no arguable merit in that ground either."

Mr Bovey founded on the closing parts of that paragraph in relation to his leading submission as outlined above and I can see that there is, indeed, a certain justification there for his doing so. On balance, however, and for the reasons stated above, I prefer the submission by counsel for the respondent to the effect that the references to legitimate processes of law being properly applied have to be seen, in their context, as somewhat otiose. In the result, and for all the foregoing reasons, I reject Mr Bovey's principal attack on the decision in question. For the sake of completeness, however, I should mention that Mr Bovey also attacked certain references in the letter of 26 November 1992 to past dishonesty and/or a lack of candour on the part of his client as being irrelevant and as leaving the reader in doubt as to the writer's views of the petitioner's credibility. If, of course these references are irrelevant then it seems to me to matter not a jot that the reader is left in doubt as to the matter of credibility. In my opinion, however, these references are relevant and they do put firmly in issue the petitioner's credibility. They do so, however, only in the context of whether even the petitioner truly saw himself as someone entitled to refugee status. Viewed in that light they do not, in my opinion, materially affect the validity of the decision in question. If they did, there is the further consideration that these comments were made in a minded to refuse letter and that the petitioner had every opportunity to make further observations on them; vide the unreported Opinion of Lord Cullen in Sodhi Singh, Petitioner (20 January 1993) at p 12. Accordingly, even allowing for the special responsibility which lies on the court in cases such as the present, (R v Home Secretary ex parte Bugdaycay [1987] 1 AC 514 per Lord Templeman at p 537H), I am satisfied that the decision in question is a sound one and must receive effect. That, of course, is an end of the case but, lest a different view be taken elsewhere, it is necessary that I record and deal briefly with Mr Bovey's further submissions on the matter of special circumstances in so far as these were independent of the question on the merits. The first of these special circumstances was what Mr Bovey described as the nature of the detriment by which I understood him to mean the serious nature of his client's complaint and/or fear of ill-treatment. As to that, however, while I can see that it makes the present a most anxious case, I have some difficulty in understanding how it reflects on special circumstances. Next, Mr Bovey advanced as an exceptional circumstance the lack of any effective alternative remedy. In my opinion, however, that could be said of many cases and I accordingly doubt whether it is relevant in the present context. I note that in Alagon Lord Prosser was certainly not prepared to treat that factor as exceptional taken on its own. And, lastly, Mr Bovey sought to rely on the unsound advice which his client had received from Mr Nabi. In that connection Mr Bovey submitted that there was, in the first place, no absolute rule that a person was always saddled with the faults or failings of his agent. The case of Secretary of State for the Home Department v Shahib Al-Mehdawi cit slip, was not dealing in terms with the Scottish test of exceptional circumstances and in Halliday v Pattison, cit sup, Lord Kirkwood, in denying relief, had relied on the existence of an alternative remedy. In Kirkwood v City of Glasgow District Council, cit slip, Lord Weir had relied on time-barred cases where there was also an alternative remedy available; and in Bain v McConnell, cit slip, although the point had not been expressly dealt with, the fault of an agent had been involved. Mr Bovey also relied on Spence v Davie [1993] SLT 217 where Lord Cameron of Lochbroom had expressed the view, obiter, that professional negligence on the part of the pursuer's advisors would not, of itself, have prevented the pursuer from bringing herself within the exception to the general rule. So far as these submissions are concerned my own view is that, while it may be correct that there is no rigid or inflexible rule that a party is disabled from relying on the fault of his or her agent, the great weight of authority is nonetheless antipathetic to their doing so. Recognising this, Mr Bovey submitted that the present case contained the further special feature that the advice had been given by an official of the publicly funded UKIAS. According to Mr Bovey the public funding of UKIAS was, in effect, a substitute for legal aid but the difference was that the citizen had no choice as to where to seek the advice. This was a special circumstance. On this submission, also, I am, however, against Mr Bovey. It seems to me that the general principle that a party and his or her agent should be treated as one is inimical to the sort of exception for which Mr Bovey contended, and I am fortified in this view by the consideration that a similar argument in Alagon appears to have found scant favour with Lord Prosser. I note, also that, in Secretary of State for the Home Department v Shahib Al-Mehdawi, cit slip, the House of Lords disapproved of an earlier decision of the Court of Appeal in R v Diggines, ex parte Rahman [1985] QB 1109, where the agents in question were UKIAS. In the overall result my decision is that the petitioner has quite failed to show exceptional circumstances such as to excuse his failure to pursue the statutory right of appeal open to him, and that that is so whether or not there is included as an exceptional circumstance the merits of the present application. In any event, as explained above, the claim for declarator and reduction is, in my view, plainly irrelevant. For all these reasons I shall uphold the respondent's second plea-in law and dismiss the petition.


Petition dismissed


Lindsays W S; Solicitor for the Secretary of State for Scotland.

[1]* Draft guidelines for the application of the criteria for determining refugee status put forward by EU states, November 1994: see I A Macdonald and N Blake Immigration law and practice in the United Kingdom (4th ed), London 1995, p 389 et seq.

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