Queen's Bench Division

[1990] Imm AR 531

Hearing Date: 28 June 1990

28 June 1990

Index Terms:

Judicial review -- whether fresh evidence might as a general rule be introduced in a challenge to the decision of an inferior tribunal -- whether in the events which had happened, earlier judicial review proceedings could be treated as still continuing.

Child -- refusal of entry clearance -- relationship as claimed not established -- DNA tests when applicant over-age suggested relationship was as claimed -- Ministerial statement -- need for fresh application for entry clearance by dependant -- whether the solicitor's letter could be construed as such an application -- whether an application had to follow a prescribed form. HC 394 para 46: HC 169 para 52.

Reference by Secretary of State to appellate authorities -- exercise of Secretary of State's extra-statutory discretion -- Ministerial statement -- whether plaint may be made that Secretary of State had failed to act where no request made to him to do so. Immigration Act 1971 s 21.


The applicant was a citizen of Bangladesh. In 1982 he applied for entry clearance to join his family in the United Kingdom. He was then a minor. The application was refused. The entry clearance officer was not satisfied that he was related as claimed to the sponsor. An appeal to an adjudicator was dismissed: he was refused leave to appeal to the Tribunal. Application was then made for judicial review. It was asserted that DNA tests were to be undertaken to show that the relationship was as claimed. Taylor J (as he then was) refused leave to move for judicial review holding that on the evidence before them the appellate authorities had not acted contrary to Wednesbury principles. He observed that if DNA tests were undertaken and the results favourable to the applicant then, if the Secretary of State failed to consider that matter, judicial review might be a remedy. Subsequently DNA tests appeared to show that the relationship was as claimed. On that basis the applicant's solicitors sought, by letter, to have entry clearance granted. The applicant was by then over-age. The Secretary of State in reply in May 1989 suggested that the applicant make a fresh application in Dhaka under HC 169 paragraph 52. In his letter the Minister explained the policy which was later set out in the ministerial statement of 14 June 1989. No such fresh application was made, nor was the Secretary of State invited to consider the case under section 21 of the 1971 Act, even though the possibility was raised with the applicant's solicitors. Nevertheless, fresh judicial review proceedings were pursued. Counsel argued that in the light of the comments by Taylor J, the fresh evidence of DNA test results should be associated with the earlier judicial review proceedings which in some way would be revived. Alternatively the Secretary of State's decision in his letter of May 1989 should be quashed. Held: 1. As a general rule, following the authorities of ex parte Johnson Trust and ex parte Powis, fresh evidence could not be introduced in judicial review proceedings to challenge the decision of an inferior tribunal. In such proceedings "it cannot be said that the decision was erroneous in any way, if it was correct in the light of the evidence that was then available." 2. The earlier proceeding before Taylor J (as he then was) could not be revived: they came to an end in 1982: the learned judge's observations on possible new evidence went no further than to suggest that when available it might be put to the Secretary of State. 3. The applicant had never made a fresh application for entry clearance under paragraph 52 of HC 169, as suggested by the Home Office. The letter by the solicitors could not be construed as such an application: "an application has to follow a prescribed form." 4. Likewise there had never been a request to the Secretary of State that he exercise his powers under section 21 of the 1971 Act: it followed that ex parte Uddin could not assist the applicant to challenge a refusal by the Secretary of State so to exercise his powers.

Cases referred to in the Judgment:

R v West Sussex Quarter Sessions ex parte Albert and Maud Johnson Trust Ltd (CA) [1974] QB 74: [1973] 3 All ER 289. R v Secretary of State for the Environment ex parte Powis [1981] 1 WLR 584: [1981] 1 All ER 788. R v Secretary of State for the Home Department ex parte Noor Uddin and Aftab Ali [1990] Imm AR 181.


J Platts-Mills QC and F Shah for the applicant; D Pannick for the respondent PANEL: Kennedy J

Judgment One:

KENNEDY J: This is an application for judicial review of three decisions. The first is a decision of an adjudicator dated 2 April 1985, and I should associate with that a second decision of the same adjudicator, dated 20 May 1985. The second decision is the decision of an Immigration Appeal Tribunal dated 20 August 1986, and the third decision is the decision of the Secretary of State, to be found in a letter dated 15 February 1989. The applicant is a native of Bangladesh, who was born on 7 September 1967. He is anxious to join the members of his family, who include in particular his father and his brother, and who are resident in this country in Dorset. He first applied for entry clearance as long ago as 1982. His application for entry clearance was refused by the entry clearance officer on 30 May 1984. He then appealed to an adjudicator. On 2 April 1985 the adjudicator dismissed his appeal, the substantial reason for dismissing it being that the adjudicator was not satisfied that he was the son of Kurshed Ali, who claims to be his father as sponsor and to be the gentleman living in this country. The matter then went to an Immigration Appeal Tribunal. At that stage, on 20 September 1985, the Immigration Appeal Tribunal sent the case back to the adjudicator for redetermination in the light of further evidence. That, it should be said, was done by agreement between the parties. So it came back before the same adjudicator on 20 May 1986. On that occasion the adjudicator came to the same conclusion. So once again the application was dismissed. There was at that stage being canvassed the possibility of DNA evidence, but there was none available. The matter went to the Immigration Appeal Tribunal on 20 August 1986. That Tribunal refused leave to appeal from the decision of the adjudicator, and the case then came to this court by way of an application for judicial review. It came before Taylor J (as he then was) on 12 December 1986, and he refused leave. Mr Platts-Mills in his submissions has made considerable reference to what Taylor J said on that occasion. At the bottom of page 14 of the bundle he said this: "The function of this court is to review the decision making process of the Tribunal and adjudicator. It is perfectly clear from what I have said that those bodies proceeded on the basis of the material before them, and there is no point of law, defect of process or any unfairness in the way in which the matter has been dealt with so far which could lead to this court granting leave to apply for judicial review." What in substance was suggested at that stage was that there might in the future be evidence which should go before the adjudicator and the Immigration Appeal Tribunal and on that basis the court should grant leave, and the court refused to do so. Taylor J went on to say: "If evidence from the fingerprinting . . . [DNA] . . . process emerges in early 1987 that is in . . . [the applicant's] . . . favour, it can be drawn to the attention of the authorities. If they accept that it is conclusive evidence, as a matter of discretion they will adjust their decision accordingly. If they do not do so -- although I do not hold out any hope of this -- the applicant could consider judicial review of their decision to do nothing about it." Mr Platts-Mills submitted to me that what the learned Judge was doing on that occasion was not bringing the application for judicial review to an end. He was giving an indication that the procedure could continue if further evidence became available. I am afraid I am wholly unable to interpret what was said in that way. Indeed it seems to me to be quite clear that what the Judge was saying was that the application must fail because it is without merit, but simply by way of comment he was saying that if further information became available and was brought to the notice of the Secretary of State, he had no doubt that there would be some reaction from the Secretary of State, and if there were no reaction, then it may be that those who were advising the applicant would consider it appropriate to take fresh proceedings for judicial review, because of the failure to react. What in fact happened thereafter was that the applicant did have the benefit of a report which indicated on the face of it that he is the son of Kurshed Ali. Indeed the doctor who prepared it said that "beyond any reasonable doubt" he came to that conclusion. So on 16 May 1988, about eighteen months after the matter had been before Taylor J, a letter was written by solicitors acting on behalf of the applicant to the Secretary of State, which enclosed the report from which I have just quoted. He also enclosed parts of the judgment of Taylor J. The letter contained this passage: "In view of this, we would be grateful if you would review our client's case and authorise the Entry Clearance Officer to grant Entry Clearance to Jaifor Ali." It was in response to that letter that on 15 February 1989 Mrs Titchener in the Immigration Department of the Home Office wrote the letter which is the third decision of which this applicant now complains. In the body of that letter she says: "Jaifor Ali has no claim to British citizenship by descent, he must qualify for admission under the Immigration Rules. As he is now over the age of 18 he does not qualify for admission under paragraph 50 of the rules as the dependent son of Mr Ali. This does not mean, however, that Jaifor is no longer entitled to apply for entry clearance as paragraph 52 of the Immigration Rules provides for the admission of children aged 18 or over who are mainly dependent on relatives settled in the United Kingdom and who are living alone in the most exceptional compassionate circumstances without any other close relatives in their own country to turn to. "It is, of course, open to Jaifor Ali to apply for entry clearance on this basis if he feels that he is able to meet these requirements." The letter goes on to say that the Home Secretary has "under consideration a number of cases of overage reapplicants who do not qualify for admission under the Rules, but he is not yet in a position to announce any general conclusion". One of those cases was apparently this applicant's case. These proceedings were commenced on 12 May 1989. On 14 June 1989 the Secretary of State made a statement in the House of Commons, which was foreshadowed in the letter from which I have just quoted. In the body of that statement he said: "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." The Secretary of State goes on to indicate how he would propose, as a matter of discretion, to react to an application by a person in that situation. He said: "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 established 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." It is pointed out in the affidavit filed on behalf of the respondent that so far as this applicant is concerned, there has been no application to the Secretary of State since that statement was made in June 1989. The first submission made by Mr Platts-Mills on behalf of this applicant is that the DNA evidence having come into existence, it can in some way be brought into the reckoning in relation to the application made in 1982, because of what was said by Taylor J. He does not, as I understand his position, dispute that in general it is not possible to have further evidence introduced in a situation like this. On judicial review it cannot be said that the decision was erroneous in any way, if it was correct in the light of the evidence that was then available. As long ago as 1974 in the case of R v West Sussex Quarter Sessions ex parte Johnson Trust [1974] QB 24, Orr LJ said that that appeal failed in limine on the ground that discovery after trial of fresh evidence relevant to an issue in the case is not in itself a ground on which certiorari may be granted. Lawton LJ said very much the same thing: "In my judgment, however, certiorari will not lie at all on the ground that fresh evidence has been discovered." That decision has been followed in the case of R v Secretary of State for the Environment ex parte Powis [1981] 1 WLR 584. It is not sought to be distinguished by Mr Platts-Mills before me, save to the extent that he submits that because of what was said by Taylor J, this case can be regarded in some ways as special. In my judgment there simply is no merit in that submission. Nothing, as I have indicated, was said by Taylor J which was other than an indication by him that there was not going to be leave granted in the ex parte proceedings which he was considering, and that if the evidence which in fact did later become available should become available, it can be brought to the attention of the Secretary of State. Had he said any more, as Mr Pannick submitted to me, he would have been going beyond what was his function. Following the decision of Taylor J, Mr Pannick submits, and I accept, in reality the proceedings commenced by the application which was made by this applicant in 1982 came to an end. What then of the letter of 15 February 1989? What was set out in that letter, as it seems to me, correctly reflects the legal position. This applicant, at the time the letter was written, was over 18 years of age. The writer of the letter was replying to a letter from the applicant's solicitors, the material part of which invited the Secretary of State to review the applicant's case and to authorise the entry clearance officer to grant entry clearance. What the writer said was that the only way that entry clearance could be obtained under the rules would be by the applicant making a fresh application pursuant to paragraph 52. Mr Platts-Mills submits that in some way I should construe the letter written by the applicant's solicitors as itself an application pursuant to paragraph 52, that is to say the letter of 16 May 1988. I find it impossible so to construe it. An application has to follow a prescribed form. When such an application is made, it then becomes necessary for the facts to be investigated. It is quite clear that this application has never started as an application under paragraph 52. If it ever should start, then the facts will be investigated, a decision will be reached and, if the decision goes against the applicant, he will have rights of appeal which he may wish to exercise. Accordingly I say nothing about the merits of such an application. I merely say that no such application has ever been made. Another way in which the case was put by Mr Platts-Mills before me, and put for the first time this morning, and there was no hint of putting the case in this way in any of the papers before me, is that this is a case which the Secretary of State should have referred to the adjudicator pursuant to his powers under section 21 of the Immigration Act 1971. Section 21 of the Immigration Act says that: "Where in any case:

. . .

(b) the Appeal Tribunal affirmed the determination of an adjudicator dismissing an 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." The powers available under that section were to some extent highlighted by reason of the decision of McCullough J in a case called R v Secretary of State for the Home Department, ex parte Uddin and another, decided on 24 October 1989, that is to say after these proceedings had been commenced and indeed after the Secretary of State had made his statement in the House of Commons on 14 June 1989. In the Uddin case the applicants invited the Home Secretary to refer the cases to an adjudicator under section 21. The learned Judge found that the Secretary of State had failed to have proper regard to the provisions in that section. The decision in that case was, as I know, brought specifically to the attention of those acting on behalf of this applicant, because on 9 March 1990 a letter was written to the applicant's solicitors indicating in terms that it would be helpful if they would confirm that they are making an application for their client's case to be considered under section 21 and, if so, it was pointed out that there were a number of outstanding cases involving over-aged re-applicants, and that they would be written to as soon as the decision had been reached. Furthermore it was suggested that these proceedings for judicial review might be withdrawn. That letter did receive an acknowledgement, but no more than a bare acknowledgement, dated 14 March 1990. Then the Treasury Solicitor wrote again to the solicitors acting on behalf of the applicant, and it may be that this letter crossed in the post with the acknowledgement because it is of the same date, and made substantially the same point as had been made by the Treasury Solicitor in his earlier letter. He asked in terms: "Is that your application, and if it is are you intending to withdraw your present application for judicial review? "You will remember at an earlier stage (September 1989) it was suggested that your application might be linked with the case of Uddin but you declined." To that letter there was no response. I find the matter of no response from the applicant to be surprising, but for present purposes suffice to say that in this case there clearly has not been any invitation to the Secretary of State to refer the case of this applicant to the adjudicator under section 21. Accordingly I cannot possibly say, as McCullough J said in the case of Uddin, that the Secretary of State has failed to have proper regard to the provisions of that section. In any event I would be very reluctant to make such a finding, when that ground for relief is not to be found anywhere in the papers in the present case. On 14 June 1989, as I have already indicated, the Secretary of State made a statement as to how he proposed to exercise his extra-statutory discretion. It is common ground that that does not amount to a statement of law, but it does indicate how he proposes that he might deal with cases such as this if they are brought to his attention. But no complaint can be made about that in relation to the present case, because it is quite clear that since that statement was made, no application has been made by this applicant or on his behalf for the Secretary of State to act in accordance with what he said on 14 June 1989, and to exercise extra-statutory powers. Accordingly I have come to the conclusion that such grounds as are advanced by this applicant by way of criticism of the decisions of the adjudicator made in 1985 and in 1986 and of the Immigration Appeal Tribunal in 1986 also, are wholly unfounded. Those bodies cannot be criticised for failing to consider evidence which was not before them, and it is not open at the judicial review stage to admit fresh evidence to undermine decisions of tribunals properly taken in relation to the evidence which they had. So far as the letter of 15 February 1989 is concerned, I find nothing in that letter which can give this applicant any ground for relief. Those being the decisions in fact under attack, this application fails and is dismissed.


Application refused


Hafiz & Co; Treasury Solicitor

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