R v. Secretary of State for the Home Department, Ex parte Noor Uddin and Aftab Ali

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte NOOR UDDIN AND AFTAB ALI

Queen's Bench Division

[1990] Imm AR 181

Hearing Date: 17 October 1989

17 October 1989

Index Terms:

Family cases -- entry clearances refused and appeals dismissed on basis that relationships as claimed not established -- subsequent DNA tests proved relationships -- policy statement by Secretary of State -- Secretary of State subsequently declined to refer cases to appellate authorities for an opinion -- whether Secretary of State had misunderstood the provisions of the 1971 Act -- whether the court should in the circumstances grant discretionary relief. Immigration Act 1971 s 21.

Held:

The applicants for judicial review were of Bangladeshi origin, settled in the United Kingdom. They had both unsuccessfully sought in the past to bring their wives and children to the United Kingdom. Applications for entry clearance had been refused and appeals dismissed because the relationships as claimed had not been proved on a balance of probabilities. In each case so many untruths had been told that neither the entry clearance officers nor the appellate authorities had believed the later statements of the sponsors and others. Subsequently, on the basis of DNA tests the Secretary of State had accepted that the relationships were as the sponsors contended. Some of the children involved were by then over-age. The Secretary of State announced in June 1989 the policy he would adopt to deal with cases such as those of the applicants (this is set out in part in the judgment): it dealt essentially with children by then over-age. Wives and children under 18, who could thus still qualify under the rules as children were it seemed, obliged to re-apply for entry clearance unless the Secretary of State allowed their admission exceptionally, outside the rules. In the present cases it was proposed to the Secretary of State that he should refer the matters to the appellate authorities, using his powers under section 21 of the 1971 Act. He declined to do so. It was contended before the court that in coming to that conclusion, the Secretary of State, as shown by the terms of the letters in which he explained his refusal, had misunderstood the breadth of his powers under seciton 21. He had not considered referring to the appellate authorities the implications which arose from the fact that the disputed relationships had been established. For the Secretary of State it was argued that he had not misinterpreted the Act, and that in any event discretionary relief should be refused because the Secretary of State on reconsideration would doubtless maintain his position as set out in his policy statement. Held: 1. The Secretary of State had not taken the extent of his powers under section 21 fully into account. They were wider than his letters in these cases, suggested. 2. To overlook the fact that one has power to do B as well as A is no different in effect from acting under the mistaken view that one is only empowered to do A. 3. In the circumstances it would not be right to withhold discretionary relief, it not being certain that the Secretary of State would still refuse to refer the cases under section 21 even when he took full account of his powers under that section.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Cleeland (unreported, CA 8 October 1987).

Counsel:

A Riza for the applicants; D Pannick for the respondent PANEL: McCullough J Judgment By-1: McCULLOUGH J

Judgment One:

McCULLOUGH J: These cases both involve a consideration of section 21 of the Immigration Act 1971. This gives to the Secretary of State a power which he has never apparently exercised. The cases are of general importance since their facts are common to a number of others where applications for entry clearance as dependents of a person settled here were refused because the authorities were not satisfied of the claimed relationships, the truth of which has since been established by DNA testing. Each applicant came from Bangladesh, is now settled in the United Kingdom and wants his wife and children to be admitted for settlement here. Mr Uddin wants to bring in his wife and two children. He has made two applications on their behalf, the first in 1975 and the second in 1981. Each was refused because the entry clearance officer was not satisfied that the parties were related as claimed. Each application ended with the refusal of the Immigration Appeal Tribunal to grant leave to appeal against the finding of an adjudicator who had dismissed an appeal from the decision of the entry clearance officer. The principal reason why these decisions went against Mr Uddin was that he had told so many lies that what was finally being advanced could not be believed. He was regarded by the adjudicator who last considered his application as "entirely discredited". Mr Ali wants to bring in his wife and six children. He applied in 1983. His application was refused. His appeal to an adjudicator failed. The reason was the same as in Mr Uddin's case. The adjudicator could not ignore what he called Mr Ali's endless deceptions and could not accept that he was finally telling the truth. There the applications rested until some time in 1987 when the various relationships were established beyond reasonable doubt by DNA fingerprinting. Those representing the applicants then invited the Secretary of State to exercise his powers under section 21 to refer the cases to an adjudicator. The Secretary of State accepted that the evidence established the relationships but declined to refer either case under section 21. His decision in relation to both cases and his reasons were contained in a letter of 23 March 1989. These were expanded in a letter of 7 April 1989 to Mr Frank Dobson, MP, who had intervened on behalf of each applicant. They are further referred to in the affidavit of Mr CR Miller which has been filed on behalf of the Secretary of State. The applicants could now apply again under current immigration rules for entry clearance, safe in the knowledge that the claimed relationships would all be accepted. But this is not the only factor on which the grant of entry clearance would depend. Some of the children are now over 18, and under the rules persons of that age must qualify in their own right unless there are the most exceptional compassionate circumstances: House of Commons Paper 388 (effective since 8 July 1989), paragraph 55. The position of the wives and those children still under 18 may also have been affected by the passage of time because since August 1985, when the rules in HC 169 were amended by HC 503 it has been necessary to show that they can be accommodated and maintained here without recourse to public funds: (HC 388 paragraph 52). None of the applicants has re-applied for entry clearance. On 14 June 1989, in answer to a Parliamentary question, the Secretary of State announced to the House of Commons the policy which he will adopt in cases such as these. I need read only part of what he said, namely this: "A number of cases have come to light where an applicant previously refused entry as a child (frequently after appeal to the independent appellate authorities), on the ground that there was no satisfactory evidence as to relationship, is now able to establish relationship by means of DNA evidence, but is now over 18 and does not satisfy the requirements in the rules relating to the admission of adults. I do not believe that it would now be right to waive those requirements as a matter of course in all such cases, irrespective of the applicant's present age or circumstances. Previous decisions, including those of the appellate authorities, were taken in good faith on the basis of the information available at the time. There can be no automatic presumption that applicants now established as related after all should be admitted regardless of current circumstances. We have always distinguished between children, who are readily admitted to join parents here, and adults, who will be admitted to join parents or relatives only in certain exceptional circumstances. Someone who was refused admission as a child when DNA was not available but has later established the claimed relationship should not by virtue of that fact automatically qualify for admission if the other qualification, namely childhood, is no longer fulfilled. I do not propose any change in the rules which would have the effect of blurring this fundamental distinction, which has been a settled feature of our immigration policy for many years. In many cases, over-age applicants are likely to have settled into independent adult life and may also have married and established a family of their own overseas and I do not propose to waive the requirements of the rules in these cases. However, in the context of outstanding and future re-applications I am prepared to consider waiving the requirements of the rules in certain circumstances. To be eligible for such consideration a re-applicant aged 18 or over will have to show: (a) that he was refused entry clearance as a child on relationship grounds; (b) that DNA evidence establishes that he was, after all, related as claimed; (c) that he is still wholly or mainly dependent on his sponsor in the United Kingdom; and (d) that there are compassionate circumstances in his case. I shall not regard the fact that a re-applicant was refused entry clearance as a child on relationship grounds on any earlier occasion and was therefore unable to join his sponsor in the United Kingdom as satisfying the requirement that there be compassionate circumstances. In deciding whether to waive the requirements of the rules in cases which fall into this category I will consider all circumstances of the case including in particular: (a) the degree and nature of the dependency; (b) the extent and nature of the compassionate circumstances; (c) the re-applicant's present age and marital status; (d) whether other close family members, such as siblings, are already settled in the United Kingdom; (e) the lapse of time between the original application and the re-application. In considering the compassionate circumstances of the case, I will attach greater weight to compassionate circumstances relating to the situation of the re-applicant abroad than I will to those relating to the situation of his sponsor in the United Kingdom." This statement said nothing about those still under 18, nor indeed, about wives. It is to be inferred, and this has been confirmed at this hearing by Mr Pannick, counsel for the Secretary of State, that they will have to re-apply under the present rules or ask the Secretary of State to admit them exceptionally outside the rules. What criteria will be applied in this event is not something which has been announced. Section 21 reads: "(1) Where in any case (a) the adjudicator has dismissed an appeal and there has been no further appeal to the Appeal Tribunal or the Tribunal has dismissed an appeal made to them in the first instance by virtue of section 15 above, or (b) the Appeal Tribunal has affirmed the determination of an adjudicator dismissing an appeal or reversed the determination of an adjudicator allowing the appeal, the Secretary of State may at any time refer for consideration under this section any matter relating to the case which was not before the adjudicator or Tribunal. (2) Any reference under this section shall be to an adjudicator or to the Appeal Tribunal, and the adjudicator or Tribunal shall consider the matter which is the subject of the reference and report to the Secretary of State the opinion of the adjudicator or Tribunal thereon." The words are relatively straightforward and can hardly give rise to misinterpretation. It is clear that: (a) section 21 only comes into operation when the statutory appellate procedure has been invoked and is spent; (b) the Secretary of State may refer "any matter relating to the case"; (c) he may do so "at any time"; (d) what comes back from the adjudicator (or the Immigration Appeal Tribunal) is not a decision but an opinion. The only point calling for possible elaboration is [b]. The words "any matter" are general and wide. So, eg, where fresh evidence becomes available it is possible not only to ask an adjudicator to evaluate its credence but also to ask him to consider its effect on the case as a whole. He might, eg, be asked whether, had it been before him on appeal, it would have affected the exercise of his discretion. There is, as I understand it, no difference between Mr Riza and Mr Pannick on this. Mr Riza goes further. He submits that, in a case such as the present, it would be open to an adjudicator, if asked, to express his opinion as to whether the Secretary of State ought to exercise his discretion outside the rules. In the grounds on which one of the applications presently before the court is made it is asserted that an adjudicator might be asked to say whether he thought the requirements as to age or as to support and accommodation should be waived. And Mr Pannick does not dissent from this. Thus, as the argument in this court developed, it became clear that there was nothing between the applicants and the respondent on the interpretation of the Secretary of State's power under section 21. What was in issue was whether the evidence indicated that, in making his decisions in these cases, he had properly understood and taken account of the width of this power. So I turn to his decision letter of 23 March, 1989 and the reasons given in it. So far as material, it reads as follows: 1. "I am writing further to your letters about these cases, both of which involve persons refused entry clearance as children who have since obtained DNA evidence which now establishes the relevant relationships . . . In particular, you have suggested that the Secretary of State should use his power under section 21 of the Immigration Act 1971 to refer these cases to an adjudicator or the Tribunal for an advisory opinion. I undertook to write to you about this point." 2: "As you know, the Home Secretary has discretion under section 21 of the 1971 Act to determine whether or not to refer fresh evidence to the appellate authorities for an advisory opinion. Each case where a request for referral is made must therefore be considered on its own merits. There have been few requests to refer cases under section 21 and we can find no record of such a reference having been made. One explanation for this may be that where, for example, fresh evidence has come to light, a decision favourabe to the applicant has been made without the case having to be referred under section 21." 3: "The Home Secretary does not, however,k consider that such a course of action would be appropriate in the present circumstances. As you know, the Home Office is quite prepared to accept and to act upon DNA evidence which establishes parentage, provided that the other requirements of the immigration rules are also met. We have had an opportunity to validate the DNA evidence commissioned by [ . . . the applicants . . .]. On that basis we are now satisfied that [. . . the dependent children . . .] are related as claimed to [. . . the applicants and their wives . . .]". 4: "In all of these cases, however, the original applications for entry clearance have been determined, and as far as I am aware, no further applications are outstanding. In these circumstances the only way forward is by means of a fresh application for entry clearance, in which case each of the applicants must be able to satisfy the entry clearance officer that they meet all the relevant requirements of the immigration rules." Mr Pannick contends that, when the decisions set out in this letter were taken, the Secretary of State both appreciated and took account of the extent of section 21 and that this letter, and that of 7 April 1989 to Mr Dobson, show it. Failing that, he says that the affidavit of Mr Miller asserts it and that the assertion should be accepted. Mr Riza contends that the letters and affidavit show the contrary. At first reading it might be thought that the first two sentences of paragraph 4 of the letter of 23 March, 1989 are a strong indication in favour of Mr Riza's submission. However, Mr Pannick submits that paragraph 4 is a general statement which should not be taken as casting any light on the Secretary of State's thinking about section 21, his consideration of which is to be found only in paragraphs 2 and 3. Given the decision in paragraph 3 that a reference under section 21 would not be appropriate, and given that no fresh application had been made, I accept that the statement in the second sentence of paragraph 4 follows, though I cannot help thinking that it would have been more appropriate had it started a new paragraph. In paragraphs 2 and 3 reference is made to the Secretary of State's "discretion", to the need for each case "to be considered on its own merits" and to "the present circumstances", phrases stressed by Mr Pannick. But, as Mr Riza, in my view correctly, submits, the tenor of the two paragraphs is to the effect that it would not be appropriate to refer the case under section 21 because the Secretary of State is prepared both to accept and to act on the DNA evidence. I do not understand Mr Pannick to dissent from this. What I have difficulty in accepting is Mr Pannick's submission that it is to be inferred that the Secretary of State's acceptance of the evidence of the relationships it established was the principal, rather than the only, factor causing him to decide not to refer under section 21. Paragraph 2 acknowledges that "fresh evidence" can be referred under section 21, but nowhere in the letter do I find anything to show that the Secretary of State appreciated that he might ask an adjudicator to consider how he thought the now established relationships should affect the cases as a whole. On the contrary, the implication is that since the Secretary of State accepted the DNA evidence and the relationships it proved, that was that so far as the applications which had already been made were concerned. The impression which the letter gives me is that either the Secretary of State took too narrow a view of section 21 or he simply did not consider the possibility of referring the overall position to an adjudicator. Had he done so, I would have expected to find some reflection of the wider and correct interpretation of section 21 in his letter. The more relevant passages, for present purposes, in the letter of 7 April 1989 are these: 3. "Any DNA evidence which is produced before an application is determined by the ECO, or while it is before the appellate authorities, will be taken into account in resolving the case. Once an application has finally been determined, however, there is no basis upon which that application could be re-opened. The only way forward is by means of a fresh application for entry clearance and of course the applicant must still be able to satisfy all the relevant requirements of the immigration rules." 6: ". . . the Home Secretary has been considering the position of overage reapplicants who do not qualify under paragraphs 50-52 of the rules with a view to determining whether and in what circumstances it might be appropriate to exercise his discretion outside the rules. In the meantime, decisions in cases involving overage reapplicants who would otherwise fall to be refused are being deferred." (I need not read paragraphs 7 and 8, which in substance repeated what had been set out in paragraphs 2 and 3 of the letter of 23 March 1989.) "9: I hope that this letter helps to clarify the present position. The question of overage reapplicants is a difficult one and the issues involved have not proved easy to resolve. But we hope to be in a position to make an announcement on both reapplicants and the introduction of DNA testing in the relatively near future." The sentences which immediately attract attention are the second and third in paragraph 3: "Once an application has finally been determined, however, there is no basis upon which that application could be re-opened. The only way forward is by means for a fresh application for entry clearance . . ." At first sight they ignore the existence of section 21. Mr Pannick submits, I think rightly, that the first six paragraphs of this letter were in answer to Mr Dobson's letter of 24 January 1989. This had not referred to section 21; so the Minister did not find it necessary to refer to the section at that stage. It was only in his second letter of 8 March that Mr Dobson had mentioned the section and it was only at paragraph 7 that the Minister began to reply to it. While I accept this, I cannot help thinking that paragraph 3 reflects the fact that consideration of the possible use of section 21 is, at most, infrequent. Be that as it may, the use to which the section might be put was considered in these cases. However, I can see nothing in the letter of 7 April 1989 which takes any further Mr Pannick's submissions about the Secretary of State's understanding and application of section 21. In particular, I cannot read into this last paragraph an indication that the new evidence and the fact that it established the relationships was but the chief of a number of factors which had been taken into account. Finally, Mr Miller's affidavit. I need read only part of paragraphs 2 and 3. "2. . . . I wish to make clear that, as stated in my letter dated 23 March 1989 . . . and in the letter dated 7 April 1989 from the Minister of State . . . the Secretary of State:- (1) recognised that he has a discretion to refer matters to an adjudicator under section 21 of the Immigration Act 1971; (2) recognised that each case where a request is made for such a referral must be considered on its own facts and merits; (3) concluded, after considering all the circumstances, that for the reasons set out in those letters it was not appropriate in the exercise of his discretion for him to refer this matter to the adjudicator. 3. The Secretary of State has carefully considered all the matters raised in the application for judicial review. The Secretary of State maintains the view that in the exercise of his discretion it would not be appropriate to refer this case to an adjudicator pursuant to section 21 of the Immigration Act 1971." Again, I do not see how this advances Mr Pannick's case. The only reasons given for thinking it inappropriate to use the power under section 21 are "those set out in the letters". Thus, in none of any of the three places where the Secretary of State's reasoning is given is there any indication that the Secretary of State considered referring to an adjudicator the implications which arose from the fact that all the disputed relationships had in the end been established beyond doubt. Had this been considered and rejected (as it might) I should have expected to see some statement to this effect in at least one of the three places. My conclusion is that when these decisions were taken attention was not given to the full width of section 21. Mr Pannick drew the court's attention to remarks made by Bingham LJ in R v Secretary of State for the Home Department ex parte Cleeland (unreported), 8 October 1987 in relation to the court's power of judicial review of a decision of the Secretary of State on a not dissimilar question, namely whether to refer to the Court of Appeal (Criminal Division) under section 17 of the Criminal Appeal Act 1968 the case of a convicted man or a point arising in the case. These were to the effect that the court should not readily interfere with a decision not to refer unless strong grounds for doing so are shown. That injunction I shall follow. I have not been referred to ex parte Cleeland itself, but I assume that in that case no questions arose as to whether the Secretary of State had misunderstood or overlooked the extent of the power which Parliament gave him. Here, however, that is the question. To overlook the fact that one has power to do B as well as A is no different in effect from acting under the mistaken view that one is only empowered to do A. The one error vitiates the decision as much as the other. The indications being that when these decisions were taken the Secretary of State did not have the extent of section 21 fully in mind, the decisions should be regarded as unlawfully taken. Unless therefore, there is reason to withhold relief, the decisions should be quashed and taken again with regard to the full extent of the section. Mr Pannick invites the court to exercise its discretion to withhold relief on the principle that to grant it would serve no useful purpose, the reason being that were the request to refer under section 21 to be reconsidered on a correct understanding of the ambit of the section it is clear that it would be refused. He says so on account of the promulgation by the Secretary of State of his policy in relation to reapplications by those now over 18, the argument being that it is clear that the Secretary of State would think it appropriate to apply that policy himself rather than seek the view of an adjudicator either about his policy or about its application in any individual case. I readily accept, as I think does Mr Riza, that the Secretary of State would certainly not ask an adjudicator what policies he thought he ought to adopt. I am less sure that he would never in any circumstances think it right to refer to an adjudicator under section 21 how he thought his policy applied to facts which were in part at least in issue and which the adjudicator might resolve. Be that as it may, I do not see how the fact that there is a statement of policy which relates to those now over 18 can provide a reason for withholding relief from those still under 18 or from wives. Mr Pannick says that the Secretary of State will expect those who can satisfy the rules (ie those who can be accommodated and maintained without recourse to public funds -- and this will be most of them) to reapply under the rules. Although this is not deposed to in affidavit evidence, it strikes me as so self evident that I ought to accept it. But what of those who fear or know that they cannot meet this requirement? Mr Pannick says that the Secretary of State will expect them either to apply outside the rules or to reapply for entry clearance under the rules; in the latter event, if their applications are refused they can appeal to an adjudicator who may, if he dismisses their appeals, recommend that they be treated favourably outside the rules. My reaction to this latter suggested alternative is that the Secretary of State might well think it better to seek the opinion of an adjudicator straight away under section 21 rather than to wait and see if it is forthcoming on the dismissal of an appeal against the refusal of an application under the rules. The decisions to be taken in these cases are going to be very difficult. However culpable their fathers may have been in earlier years, the children themselves were and are almost certainly wholly innocent. Children need to be with their parents even more than parents with their children. Finally, in relation to those not covered by the statement of policy of 14 June 1989, Mr Pannick says that there is no evidence that they cannot be accommodated and maintained by their sponsors, ie no evidence that they cannot meet the requirements of the present rules. True, but equally there is no evidence that they can. Thus I am unable to conclude that the Secretary of State would be bound on reconsideration of the question of referral under section 21 to decide against it. He may do so, but, short of it being clear that he would, the applicants should not be deprived of the relief to which they are otherwise entitled. So much for those not covered by the policy statement. What of the three children who are now over 18 -- two of Mr Uddin's and one of Mr Ali's? I think it less likely that the Secretary of State would want to ask an adjudicator to consider these cases. However, if he should on reconsideration decide to refer the cases of their mothers, brothers and sisters to an adjudicator (something I cannot exclude), it may not be beyond the bounds of possibility that he would decide to refer the cases of the family as a whole under section 21. Although I do not foresee that the court's decision in this case might make the Secretary of State want to alter his policy of 14 June 1989, I cannot confidently predict that when that policy is being applied the Secretary of State will never want to make use of section 21 in his decision making process. For these reasons I do not think it would be right to withhold relief from those now over 18. The applications succeed and the decisions of 23 March 1989 are quashed.

DISPOSITION:

Applications granted

SOLICITORS:

Russell Campbell, Camden Community Law Centre; Treasury Solicitor