R v. Secretary of State for the Home Department, Ex parte Kuldip Singh Mahal

R v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte KULDIP SINGH MAHAL

Queen's Bench Division

[1986] Imm AR 369

Hearing Date: 1 July 1986

1 July 1986

Index Terms:

Detention -- pending removal directions, after breach of condition following temporary admission -- subsequent application for political asylum -- whether detention lawful while that application under consideration -- whether a person may be detained pending removal directions, if it is possible that no removal directions at all will ultimately be given: Immigration Act 1971 s 11(1), Schedule 1, paras 3, 4, Schedule 2 paras 2(3), 8(1), 8(2), 10(1)(b), 16(2), 21.

Held:

The applicant for judicial review sought release from detention which it was contended was, in the circumstances, unlawful. The applicant was refused admission to the United Kingdom as a visitor on arrival on 17 November 1985. He was, however, granted temporary admission subject to a residence condition which he did not observe. He was accordingly arrested and detained. Removal directions were issued by an Immigration Officer within the statutory period but then cancelled. Subsequently new removal directions were issued signed by an immigration officer on behalf of the Secretary of State. These were also subsequently withdrawn. They were withdrawn because meanwhile the applicant sought political asylum. While that application was under consideration he remained in detention. On application for judicial review it was contended firstly that the later removal directions were invalid because an immigration officer was not empowered to sign them on behalf of the Secretary of State. The Court accepted that that was arguable but it was not a question that fell to be determined in the present case because those directions were in any event withdrawn. It was also argued that the applicant in reality was not detained pending removal directions. He was detained while his application for political asylum was under consideration. If that were successful, no removal directions would be given. The use of the power of detention under paragraph 16(2) of Schedule 2 of the 1971 Act could not, it was argued, be used in those circumstances. Held: 1. The phrase in Schedule 2 paragraph 16(2) of the 1971 Act, "in pursuance of any directions given" predicates that in fact there may, in the end, be no directions given. 2. It followed, that the detention of the applicant while his application for political asylum was under consideration was lawful.

Cases referred to in the Judgment:

R v Governor of Richmond Remand Centre ex parte Asghar [1971] 1 WLR 129. R v Governor of Durham Prison ex parte Hardial Singh [1983] Imm AR 198; [1984] 1 WLR 704: [1984] 1 All ER 983.

Counsel:

E Cotran for the applicant; J Laws for the respondent PANEL: McCowan J Judgment By-1: McCOWAN J

Judgment One:

McCOWAN J: This is an application for judicial review made pursuant to leave granted by Schiemann J on 25 April 1986. The order or decision in respect of which relief is sought is stated to be "Directions for applicant's detention made by an immigration officer at Birmingham on 25 February 1986 under paragraph 16(2) of Schedule 2 of the Immigration Act 1971." The relief sought is as follows: "(1) A Writ of Habeas Corpus ad sub-judiciendum to be issued to the Secretary of State for the Home Department and/or the said immigration officer to show cause why the applicant should not be released immediately. (2) An order of Certiorari to quash the said Directions for Detention. (3) An order of Mandamus directing the said immigration officer and/or the Secretary of State to grant the applicant temporary admission under paragraph 21 of Schedule 2 to the Immigration Act 1971 until his application for asylum is determined." The grounds on which relief is sought are as follows. (I think it is sufficient if I read (1), (2), (6) and (7).) "(1) The applicant arrived in the United Kingdom on 17 November 1985. He was refused leave to enter and was granted temporary admission to reside at 461 Dudley Road, Wolverhampton. (2) Consequently, more than two months have elapsed since the refusal to enter, and directions for removal cannot now be made by an immigration officer . . . (6) The Directions for removal dated 16 February 1986 for the removal of the applicant to Delhi on 2 March 1986 were not made by the Secretary of State but by an immigration officer for the Secretary of State. (7) The said Directions were not made pending removal but pending further consideration to be given to the applicant's application, and the notice of cancellation dated 19 February 1986 so states." The applicant is a Sikh and also a citizen of India. He arrived in this country on 17 November 1985. He says that he was tortured in India for his opposition to the central Government and for that reason, fled the country. He sought entry as a visitor. That leave was refused to him as is shown in the Notice of Refusal which is to be found on page 8 of the bundle. It reads: "Madan Lal, You have asked for leave to enter the United Kingdom as a visitor for one month, but I am not satisfied that you are genuinely seeking entry as a visitor for the period stated. I therefore refuse you leave to enter the United Kingdom. I have given/propose to give directions for your remvoal at 10.00 hours on 19 November 1985, by aircraft to Delhi." He was given temporary admission, renewed from time to time, to reside at 461 Dudley Road, Wolverhampton. A copy of the last Notice of Temporary Admission dated 16 February 1976 is to be found at page 10 of the bundle. That is signed by an immigration officer. It is dated 16 February and it says: "You must reside at 461 Dudley Road, Wolverhampton. You must report to an immigration officer at this office" -- the office being Heathrow -- "on 2 March 1986 at 07.30 hours." It appears that the applicant did not abide by that restriction. He did not continue to reside at that address. Accordingly, he was arrested on 25 February 1986. He was detained under paragraph 16(2) of Schedule 2 of the Immigration Act 1971. That detention is said to be unlawful. Certain other documents have been included in the bundle. At page 32 is a direction to remove a person or persons. It is dated 17 November 1985. It is signed by the immigration officer. It directs Gulf Air to remove the applicant to Delhi. That direction was cancelled. The cancellation is to be found at page 33 of the bundle, dated 21 November 1985. It reads: "On 17 November 1985, you were given directions to remove Madan Lal . . . The above removal directions are cancelled because further consideration is being given to the above named person's application for leave to enter . . ." At page 34 is a direction to remove a person or persons, addressed to British Airways in respect of Madan Lal. By this direction, the Secretary of State directs British Airways to remove him to Delhi at 10.25 hours on 2 March 1986. That is signed by the Immigration Officer for the Secretary of State (in printed words). At page 36 there is a notice dated 19 February 1986, cancelling that direction. The reason given was as follows: "Further consideration is now to be given to the passenger's application for leave to enter/remain in the United Kingdom and the removal directions are hereby cancelled. If the refusal of leave to enter/remain is maintained, new directions will be given." As I indicated, some six days later the applicant was arrested. There is one other fact that must be borne in mind. At page 12 of the bundle is a letter from the applicant's solicitors to the Home Office. It will suffice if I read some words in the first paragraph. "We now wish to make an application for political asylum on his behalf, and should be pleased if you would be so kind as to consider the same." Mr Cotran says that from date of receipt of that letter, the Home Office knew that this man had made an application for political asylum. He says that the reason that he has been detained ever since 25 February is because his application for political asylum has been under consideration. That is not really in dispute as a matter of fact. Mr Laws agrees that his application has been under consideration. Apparently, the matter has now been decided and he will be notified of the result within the next few days. I turn to look at paragraph 8 of the second Schedule to the Immigration Act 1971. Sub-paragraph (1) reads as follows:

"Where a person arriving in the United Kingdom is refused leave to enter, an immigration officer may, subject to sub-paragraph (2) below . . ."

There then follow various directions which may be given requiring someone to remove the person who has arrived in the United Kingdom from the United Kingdom. Details of that do not matter, but in sub-paragraph (2) this is said:

"No directions shall be given under this paragraph in respect of anyone after the expiration of two months beginning with the date on which he was refused leave to enter the United Kingdom."

So, in this case, after two months from 17 November 1985, the immigration officer could not give directions under paragraph 8. But by paragraph 10(1)(b);

"Where it appears to the Secretary of State either -- (a)" -- which I need not read -- "or (b) that directions might have been given in respect of a person under paragraph 8 above but that the time limited by paragraph 8(2) has passed; then the Secretary of State may give to the owners or agents of any ship or aircraft any such directions in respect of that person as are authorised by paragraph 8(1)(c)."

At the stage at which the directions were ginne in February 1986, two months had elapsed. Accordingly, the directions could not be given by the immigration officer. They could only be given by the Secretary of State. As I indicated, the directions which were then given (a copy of which is to be found at page 34 of the bundle) were signed by an immigration officer for the Secretary of State. Mr Cotran's first submission is that that will not do; the Secretary of State has got to sign it himself. He referred me to various parts of the Act, quite apart from paragraphs 8 and 10 to which I have already referred, where a distinction is made between what can be done by the immigration officer and what can be done by the Secretary of State. Mr Laws, on the other hand, is prepared to argue that it is permissible for an immigration officer to sign a direction of this nature for the Secretary of State. It is an interesting question, but I agree with Mr Laws that it is not one which it is necessary for me to decide. It would be academic for me to do so because, in fact, on 19 February that direction was cancelled. Accordingly, in my judgment that is really an immaterial point in the case. I turn therefore to the second point in the case which, in my judgment, is the relevant one. In essence, it is this; Mr Cotran in his most helpful and attractive argument says that on 25 February his client was not detained pending the removal. He was detained while his application for asylum was being considered. That takes me to a consideration of paragraph 16(2) of Schedule 2 to the Act. That reads as follows:

"A person in respect of whom directions may be given under any of paragraphs 8 to 14 above may de detained under the authority of an immigration officer pending the giving of directions and pending his removal in pursuance of any directions given."

I agree with Mr Laws that what must be shown here can be sub-divided into three. First of all, the person must be shown to be a person in respect of whom directions may be given under any of paragraphs 8 to 14 above. I have no doubt at all that the applicant was such a person. As I pointed out, the immigration officer could no longer give such a direction, but the Home Secretary could and there is no limit on the number of directions which he can give. The second necessity is that it should be shown that he may be detained under the authority of an immigration officer. Again, I see no problem about that. It is the third requirement which has triggered off the real argument in the case. Is the applicant in this case detained "pending the giving of directiions nd pending his removal in pursuance of any directions given"? Mr Cotran relies on two authorities. The first of these is the case of R v Governor of Richmond Remand Centre ex parte Asghar, [1971] 1 WLR 129. I do not think it is necessary for me to read the headnote. Suffice it if I go to the judgment of Parker LCJ on page 132 at letter D, which reads as follows: "The first question is whether those composite directions were valid directions under Schedule 1. In my judgment they were not. As it seems to me the directions under paragraph 3, whether under subparagraph (1) or subparagraph (2), are directions for the removal of the person detained, those directions to operate, as it were, forthwith. To give directions, which take the form of saying making arrangements for the removal of A and B at some unascertained time in the future when proceedings at the Central Criminal Court have been completed, are not in my view valid directions under Schedule 1. At most they amount to a request to make arrangements when further directions are given. Accordingly, I do not think in this case that valid directions were given within the two months prescribed by paragraph 3(3).

"The matter in my judgment does not end there, because, even if I were wrong in that, and valid directions were given, the question remains whether, pursuant to paragraph 4(1), the applicants continued thereafter, that is after the directions, to be held pending removal in pursuance of such directions. It quite clearly contemplates, of course, that there will be some interval of time between the giving of the directions and their implementation, and for that period of time there is authority to detain. But when one turns to the facts of this case, the reality of the position is that the applicants were being detained pending the trial at the Central Criminal Court at which they were required to give evidence. Accordingly on that second ground I think that detention was not justified."

In my judgment, that case is of limited assistance, because of its very different facts. I accept the submission of Mr Laws that the reality of the position is that there the men were being held for a wholly collateral purpose, which, unlike the present case, could be of no benefit to them. The other authority relied upon is that of R v Governor of Durham Prison, ex parte Hardial Singh, [1984] 1 WLR 704. The passage that is relied on is to be found at page 706, beginning at letter C, in the judgment of Woolf J (as he then was). The passage reads as follows: "That power requires the person to be detained under paragraph 2(3) after the making of a deportation order and pending the removal of the person from the United Kingdom. Since 20 July 1983, the applicant has been detained under the power contained in paragraph 2(3) of Schedule 3 to the Immigration Act 1971. Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.

"In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time."

Then he proceeded to refer to the judgment which had been given in the Asghar case, to which I have already referred. What Woolf J finally decided in that case was that unless the Home Office produced evidence within three days to show that the applicant was about to be deported or that his continued detention was reasonable in the circumstances, the court would order that the applicant be released from custody. In my judgment, all that case is saying is that the Secretary of State must act with due expedition and that he could not exercise the power of detention unless the person subject to a deportation order could be deported within a reasonable time. That point, as it seems to me, does not arise in this case. It certainly has not been taken before me. I do not consider that that authority determines, in any way, the question which I have to consider. Mr Laws has drawn my attention to section 11(1) of the Immigration Act of 1971. It provides as follows:

"A person arriving in the United Kingdom by ship or aircraft shall for the purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 of this Act."

As Mr Laws points out, although the applicant is physically here, this deeming provision deems him not to have entered. As I have indicated, Mr Laws accepts that the Secretary of State has been considering the applicant's asylum claim. He accepts that if that claim is successful, the Secretary of State will not remove him. But, on the other hand, if it is not successful, then directions will be given under the powers given by this Act. In my judgment, the phrase used in paragraph 16(2) "in pursuance of any directions given," predicates that in fact there may be no directions given. For these reasons, I have come to the conclusion that, in fact, the applicant has been detained, pending the giving of directions and pending his removal in pursuance of any directions given. Accordingly, this application must be rejected.

DISPOSITION:

Application dismissed

SOLICITORS:

Singh & Choudry, London E8, Treasury Solicitor.