R v PETERKIN (Adjudicator), Ex parte SONI TH/1112/71

Queen's Bench Division

[1972] Imm AR 253

Hearing Date: 15 May 1972

15 May 1972

Index Terms:

Certiorari -- Adjudicator's determination showing error of law -- Remedy by appeal to Immigration Appeal Tribunal not pursued -- Divisional Court unwilling to interfere before statutory appeal procedure exhausted.

Discretion -- Adjudicator's task on hearing appeal -- Consideration afresh of matters in issue on application involving immigration officer's discretion -- Adjudicator to exercise own discretion on the facts -- Assessment of hardship in application by fiancé to enter United Kingdom for marriage -- Immigration Appeals Act 1969, s 8(1)(a)(ii) -- Cmnd 4298, para 46.

Held:

S, a Commonwealth citizen, applied for an entry certificate to enable him to enter the United Kingdom for the purpose of marriage to a named resident. The entry certificate officer consider the degree of hardship which would be caused if S's fiancée had to leave England in order to live with her husband, and in the exercise of his discretion under para 46 of Cmnd 4298 he refused S's application n1. The adjudicator to whom S appealed took the view that he should not interfere with the officer's decision unless it could be shown that the officer in the exercise of his discretion had taken into account some matter which he ought to have excluded or had failed to take into account some matter which he ought to have included. On that test he concluded that there was no cause to interfere, and he dismissed the appeal. Solicitors acting for S put in motion an appeal from the adjudicator to the Immigration Appeal Tribunal, but new solicitors later decided not to pursue that appeal but to apply instead to the Divisional Court for orders of certiorari and mandamus. On that application, n1 Paragraph 46 of Cmnd 4298 is set out on page 255, post. Held: (i) The adjudicator was required under s 8(1)(a)(ii) of the Immigration Appeals Act 1969 n2 to apply his mind afresh to the problem presnted by the facts and to determine what in his judgment was the correct exercise of discretion; he had erred in law in following a rule formerly applied with some strictness in the Court of Appeal when dealing with the exercise of discretion by a High Court Judge. n2 Section 8(1)(a)(ii) of the Immigration Appeals Act 1969 is set out on page 255, post. (ii) Though this error on the face of the record constituted a prima facie case for interference, the Court would refuse the discretionary remedies of certiorari and mandamus because the appellate tribunal which Parliament had provided in the Immigration Appeal Tribunal could deal with the injustice complained of. Per LORD WIDGERY, C.J.: Both authority and common sense seem to demand that the Court should not allow its jurisdiction under the prerogative orders to be used merely as an alternative form of appeal when other and adequate jurisdiction exists elsewhere. This principle clearly applies to the legislation affecting Commonwealth immigrants.

Counsel:

Martin Collins, Q.C. and Dr. G. S. Khan for the appellant. Gordon Slynn for the Secretary of State for the Home Department. PANEL: Lord Widgery, C. J. Shaw and Wien, J. J. Judgment By-1: LORD WIDGERY, C.J.

Judgment One:

LORD WIDGERY, C.J.: In these proceedings Mr Martin Collins moves on behalf of one Kaneeyalal Ranchhodji Soni for an order of certiorari to bring up and quash the determination of an adjudicator under s 8 of the Immigration Appeals Act 1969, and for an order of mandamus to require the adjudicator to re-hear and determine the issues before him. The applicant is and has at all material times been in Bombay; he is a citizen of India and he is a Commonwealth citizen within the meaning of s 1 of the Commonwealth Immigrants Act 1962. On 18 November 1970 he applied to the appropriate officer in Bombay for an entry certificate permitting entry into the United Kingdom. The reason which he gave for his being entitled to such a certificate was that he wished to come to England in order to marry a young woman to whom he was affianced who had been born in Kenya and who had come to the United Kingdom with the rest of her family in 1967. At the material time the instructions to Immigration Officers dealing with a male who wished to come to England in order to marry a girl already here were contained in para 46 of Cmnd 4298 which was presented to Parliament in February 1970. Under that paragraph it is provided as follows:

"A man seeking to enter the United Kingdom for marriage should not be admitted for settlement unless he has a valid entry certificate endorsed 'fiancé'. The Secretary of State will authorise the issue of such an entry certificate only where refusal of admission for settlement would be undesirable because of the degree of hardship which, in the particular circumstances of the case, would be caused if the woman had to live outside the United Kingdom in order to be with her husband after marriage."

So the point which arises under that paragraph in applications of this kind is whether hardship would be occasioned if the girl had to leave England and go and live with her husband in his own country. The officer dealing with the application in the first instance in Bombay had to apply his mind to the wording of that paragraph. He had to consider the degree of hardship which would be caused if this girl had to leave England to live with her husband in his own country. There is a full statement in the papers of the consideration of the matter by the appropriate officer in Bombay, and his conclusion was, using his discretion and weighing the hardship as best he could, that the certificate should not be granted; in other words he thought the right solution was for the girl to join her husband in Bombay and not for the husband to be admitted under para 46. Having received an adverse decision from the entry certificate officer in Bombay, the appellant appealed, as he was entitled to do under s 2 of the Immigration Appeals Act 1969, to an adjudicator. Section 8(1) of the Act provides that (subject to certain provisions which are not relevant for the present purpose):

"An adjudicator who hears an appeal under this Part of this Act -- (a) shall allow the appeal if he considers... (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently."

So that it was for the adjudicator to look at these facts afresh to consider, using his own discretion and judgment, whether the discretion should have been exercised in favour of the appellant, and if he thought that the discretion should be so exercised it was for him to allow the appeal and to order the entry certificate to be issued. In fact the adjudicator dismissed the appeal on 1 July 1971, and in the same month, on 22 July 1971, the applicant gave notice of appeal from the adjudicator to the Immigration Appeal Tribunal which was also set up under the Act of 1969. There is no doubt at all that the Tribunal had jurisdiction to enter upon an appeal from the adjudicator, and on 22 July the applicant took the appropriate steps to put that appeal in motion However, a few months later there was a change of solicitors representing the applicant, and on 7 December 1971 by letter from his new solicitors the Tribunal was infomred that the applicant was advised that he ought to come to this Court for certiorari instead of pursuing his appeal to the Immigration Appeal Tribunal. Accordingly the application to this Court was made and that gives rise to the proceedings before us now. I should deal first of all with the objection taken to the adjudicator's decision. It is said that there was an error of law on the face of it, and that submission is well-founded because the adjudicator, when considering this matter, did not appreciate that he was required to apply his mind to the problem afresh and to determine what in his judgment was the correct exercise of the discretion. Instead he took the view that he should follow a rule, formerly applied with some strictness in the Court of Appeal when dealing with the exercise of discretion by a High Court Judge, namely that he should not interfere with the decision reached by the entry certificate officer in Bombay unless it could be shown that that officer had taken into account some matter which he ought have excluded, or had failed to take into account some matter which he ought to have included. Having looked at the decision below and having concluded that on that test there was no cause to interfere, the adjudicator dismissed the appeal. Mr. Slynn concedes, and in my judgment rightly concedes, that the adjudicator thereby erred in law and the error of law is on the face of the record, so that that requirement for an application for certiorari appears to be satisfied. However, Mr Slynn has addressed to us an argument, for which I feel much indebted to him, that notwithstanding the fact that here there is a prima facie case for interference, the Court ought not to interfere in the exercise of its discretion because of the existence of the alternative appellate machinery to which I have referred. We have had the advantage of being referred to many of the authorities, and I do not propose to refer to them again in this Court because the principle is now clear and I think the time right to state the principle as it seems to me to apply at this present time. It is abundantly established that certiorari and mandamus are discretionary remedies and may be refused if an alternative and equally convenient remedy exists. Exceptional cases will always exist and must be dealt with on their merits, but where Parliament has provided a form of appeal which is equally convenient in the sense that the appellate tribunal can deal with the injustice of which the applicant complains, this Court should, in my judgment, as a rule allow the appellate machinery to take its course. The prerogative orders form the great residual jurisdiction of this Court whereby this Court supervises the work of inferior tribunals and seeks to correct injustice where no other adequate remedy exists; but both authority and commonsense seem to me to demand that the Court should not allow its jurisdiction under the prerogative orders to be used merely as an alternative form of appeal when other and adequate jurisdiction exists elsewhere. This principle clearly applies to the legislation affecting Commonwealth immigrants. When the first Commonwealth Immigrants Act was passed in 1962 the decisions thereupon were all matters of discretion for the Secretary of State and his officers, and initially there was no kind of system of appeal provided. At that time this Court was active to ensure that applications made to the Secretary of State and his officers were dealt with fairly and to see that the law was strictly complied with. At that time there was, as I say, no alternative appellate machinery, and it was a clear case for this Court to use its residual jurisdiction to see that justice was done. Now Parliament has provided a system of appeal from the officer who refuses the entry certificate, and from the adjudicator who hears the initial appeal. When the complaint is fairly within the jurisdiction of these appellate bodies, this Court in my judgment should in general allow the to do the work for which they were appointed. This is not in any sense a relinquishment by this Court of its control over this subject, because our supervisory powers are still available if in the end, when the appellate system has worked outside it, injustice or breach of the law remains. What I think we should be slow to do is to interfere with a new appellate procedure provided by Act of Parliament, as in this case, before that procedure has exhausted itself. I emphasise that there will be exceptional cases, and that this Court should deal with each case on its merits rather than by rule of thumb, but in general what I have just said expresses my views of the attitude which we should adopt to cases of this kind. And, of course, the matter is a fortiori if as here the applicant has already actually set the appellate system in train. There are a number of cases which emphasise the fact that if the appellant has already adpplied to the alternative appellate tribunal before he comes here, this Court will not give him relief, and we have been referred to R v Pereira Ex p. Khotoo Bawasab n3. That was a case before this Court where Indian seamen who were the applicants, were charged with disobeying a lawful order to return to their ship. They pleaded guilty through an interpreter and they were convicted and sentenced. They applied to a Divisional Court for leave to apply for certiorari to quash their convictions on the grounds that they had not understood what was meant by their pleas of guilty, that those pleas were therefore ineffective and that the magistrates had accordingly no jurisdiction to convict or sentence them. The Court granted them leave to apply on this basis. At the hearing of the substantive application however, it appeared that meanwhile the applicants had given notice of appeal against their convictions and sentences at Quarter Sessions, and they had on that ground been granted bail. HUMPHREYS J. and HILBERY J. who constituted the Court at that time, made it perfectly clear that had the Court been informed initially that this alternative remedy was being pursued, then relief under the writ of certiorari would not have been granted. One finds the same approach in R v Barnes Ex p. Lord Vernon n4. It is therefore a fortiori in the present case in my judgment that we should not interfere with the pending application before the Immigration Appeal Tribunal and I would refuse this application. n3 [1949] W.N. 96. n4 (1910), 102 L.T. Rep. 860.

Judgment Two:

SHAW J.: I agree.

Judgment Three:

WIEN J.: I entirely agree and for my part I would only add this, that with due deference I adopt the words of LORD DENNING in Baldwin & Francis Ltd v Patents Appeal Tribunal n5 where he said: n5 [1959] A.C. 663 at p. 697; [1959] 2 All E.R. 433 at p. 449.

"There is nothing more important, to my mind, than that the vast number of tribunals now in being should be subject to the supervision of the Queen's Courts. This can only be done if the remedy by certiorari is maintained in the full scope which the great judges of the past gave to it. Any anxiety about an undue extension of the remedy is fully met by the knowledge that, in cases where there is a right of appeal, the courts may in their discretion refuse the order."

I entirely agree that this is proper case where the discretion should not be exercised.

DISPOSITION:

Application refused.

SOLICITORS:

Amclair & Roth, Manchester (for the applicant); The Treasury Solicitor.

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.