R v. Secretary of State for the Home Department, Ex parte Kaygusuz

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte KAYGUSUZ

Queen's Bench Division

[1991] Imm AR 300

Hearing Date: 27 February 1991

27 February 1991

Index Terms:

Political asylum -- applicant had sought leave to enter United Kingdom as a refugee -- application for asylum refused -- leave to enter United Kingdom refused -- application for judicial review -- Secretary of State then granted applicant twelve month's exceptional leave to remain in the United Kingdom -- whether it was appropriate for judicial review proceedings to be pursued -- whether the court would grant declaratory relief. Immigration Act 1971 ss 3(2), 4, 33(5), sch 2: HC 503 para 73: HC 251 para 140.

Held:

The Secretary of State applied for the leave granted to move for judicial review to be set aside. The applicant was a Turkish Kurd, an Alevite. On arrival in the United Kingdom he had applied for political asylum: that was refused by the Secretary of State and the immigration officer accordingly refused the applicant leave to enter the United Kingdom. Leave to move for judicial review of the Secretary of State's refusal of asylum was granted. The Secretary of State then reviewed the case and granted the applicant twelve months' exceptional leave, albeit he still refused his application for asylum. The applicant's advisers sought to continue the judicial review proceedings, and the Secretary of State applied for the leave to move to be set aside. Counsel for the Secretary of State submitted that the applicant had secured, by another route, that which he had originally sought -- leave to enter the United Kingdom. If further leave were refused he would be able to appeal to an adjudicator, and he could then again, if he wished, raise the matter of political asylum. For the applicant it was argued that the twelve months' exceptional leave he had received was qualitatively less than acceptance of his claim to asylum: in terms the applicant sought declaratory relief that he was a refugee: if he could no longer challenge the first refusal, he sought to challenge the later refusal of asylum. Held: 1. In the events which had happened it would not be appropriate for the judicial review proceedings to be permitted to continue. 2. The court would not in any event grant declaratory relief in a case of this nature. Even if either of the Secretary of State's decisions to refuse asylum were quashed on Wednesbury principles in the circumstances the applicant would secure no benefit.

Cases referred to in the Judgment:

Barty-King v Ministry of Defence [1979] 2 All ER 80.

Counsel:

M Gill for the applicant; R Jay for the respondent PANEL: Auld J

Judgment One:

AULD J: There is before me first an application by the Secretary of State for the Home Department to set aside the grant of leave to move for judicial review granted to Ibrahim Kaygusuz by Kennedy J on 21 June 1990. The application is that I should dismiss Mr Kaygusuz's application for judicial review and set aside the grant of leave to move for that application. The basis of the application is that for Mr Kaygusuz's application for judicial review to continue would be an abuse of the process of the court. Mr Kaygusuz is a Turkish Kurd of Alevi religion. In his proposed application for judicial review he is challenging the decision of the Secretary of State of 5 March 1990 refusing to regard him as qualified for political asylum after his arrival in the United Kingdom from Turkey on 20 May 1989. He seeks both to quash that decision and a declaration from this court that he is a refugee and entitled to political asylum in the United Kingdom. There is also before me an application made today by Mr Kaygusuz seeking leave to move for judicial review in respect of a second decision which was made by the Secretary of State on or about 2 October 1990 apparently confirming his decision on 5 March 1990 that Mr Kaygusuz did not qualify for political asylum. The Secretary of State also, as part of that decision, granted Mr Kaygusuz leave to enter the country for a limited period -- 12 months. That part of his decision is said to have been made by him under his prerogative power preserved to him by section 33(5) of the Immigration Act 1971. It was not a grant by an immigration officer of entry for a limited period under section 3(1)(b) of that Act. However, it is agreed that Mr Kaygusuz has what was denied to him originally as a result of the Secretary of State's refusal on 5 March 1990 to find him qualified for political asylum, namely, leave to enter the United Kingdom, albeit for a limited period. Mr Gill, on Mr Kaygusuz's behalf, is content to rely on the original application for which leave has been granted in relation to the Secretary of State's decision of 5 March 1990, if that application is not struck out today. His case is that the first part of the Secretary of State's decision on 2 October 1990 only confirmed or continued the earlier decision as to Mr Kaygusuz's lack of qualification as a political refugee. However, if Mr Kaygusuz is not permitted to proceed with his application for judicial review in respect of the Secretary of State's decision of 5 March 1990, Mr Gill, on his behalf, seeks leave to challenge in its own right that part of the Secretary of State's decision of 2 October 1990 denying him the status of a political refugee. Mr Gill does not of course challenge the limited leave to enter granted by the Secretary of State on that occasion. Although Mr Kaygusuz's application in relation to the Secretary of State's decision of 5 March 1990 is in terms about his entitlement to asylum, it is part and parcel of his application originally made under section 3(1)(a) of the Immigration Act 1971 for leave to enter the United Kingdom. As is well-known asylum is a ground upon which a person who is not a British citizen and therefore not normally entitled to enter the country without leave can apply for and be given leave to enter. In the ordinary course of events when an application is made for leave to enter the country on that basis the application is made under section 3(1)(a) of the Act. By virtue of section 4(1) of the Act only an immigration officer can give or refuse that leave, and he is required by section 4(2)(b), (c) and (d) to exercise that power in accordance with schedule 2 to the Act. The fact that a question of asylum arises as a ground of the application does not take it outside the procedural framework of the Act and schedule 2. The immigration rules governing applications for political asylum are rules made under section 3(2) of the Act as to the practice to be followed in the administration for regulating the entry into and staying in the United Kingdom of a person required to have leave to enter. The effect is to require the immigration officer as part of his decision-making process to refer the matter to the Home Office for a decision as to whether the applicant is a refugee within the rules. If the Secretary of State decides that he is not, he (the Secretary of State) has no power to refuse leave to enter. That power is vested in the immigration officer under section 4(1). However, by virtue of paragraph 1(3) of schedule 2 to the Act he must exercise that power in accordance with the Secretary of State's instructions. That is the normal machinery, and that was no doubt the basis upon which Mr Kaygusuz's original application for leave to enter was dealt with. On his arrival in the United Kingdom on 20 May 1989 Mr Kaygusuz applied for leave to enter on the ground of asylum. As I have indicated, he was not given such leave but was granted temporary admission under paragraph 21 of schedule 2 to the Act in order that the immigration officer could determine under paragraph 2(1)(c) of that schedule whether he should be given leave to enter and, if so, upon what terms. Mr Kaygusuz's wife who joined him here on 8 June 1989 also applied for leave to enter on the ground of asylum and was similarly granted temporary admission. The immigration officer referred Mr Kaygusuz's application for asylum to the Secretary of State and conducted a number of interviews of him with a view to determining, in the light of the Secretary of State's decision, whether leave to enter should be given. At an interview on 5 March 1990 the applicant was told that the Secretary of State had refused his application for asylum, and he was given notices of refusal of leave to enter in relation to himself and his wife. Mr Kaygusuz then made application for leave to move for judicial review of the Secretary of State's decision, not the immigration officer's refusal of leave to enter. That prompted the Home Office to reconsider the question whether he should be treated as a political refugee and the question of leave to enter generally, notwithstanding that it considered that it could successfully defend the Secretary of State's decision on asylum in the judicial review proceedings. By letter of 29 August 1990 the Treasury Solicitor, on behalf of the Home Office, wrote to Mr Kaygusuz's solicitors confirming that the Home Office in its discretion was prepared to reconsider its decision despite the writer's view that the challenge of the decision of 5 March 1990 could be successfully defended. The Treasury Solicitor went on in that letter to suggest that, once Mr Kaygusuz's solicitors had heard further from the Home Office, the judicial review proceedings should be withdrawn. Mr Kaygusuz's solicitors were not prepared to withdraw the proceedings, and there was some exchange of correspondence about that. However, on or about 2 October 1990 the Secretary of State, apparently exercising his prerogative power to which I have referred, granted Mr Kaygusuz what has been described in the papers before me as "exceptional" leave to enter the United Kingdom for one year. As I have already emphasized, that was different as a matter of law from the statutory leave to enter for a limited period which an immigration officer could have granted under section 3(1)(b) of the Act. However, the effect is the same, and Mr Kaygusuz has now had leave to enter, albeit limited. The correspondence put before me indicates -- and the parties agree -- that it was also part of the Secretary of State's decision of 2 October 1990 that he confirmed his decision of 5 March 1990, namely, that Mr Kaygusuz was not a political refugee. It is unfortunate and, in my limited experience of these matters, surprising that there is no direct documentation available to be put before the court of that prerogative decision by the Secretary of State. However, I have been referred to the correspondence which seems to bear out that that is what happened. There is a letter from Mr Kaygusuz's solicitors of 3 October to the Treasury Solicitor, which says: "Further to our recent telephone conversation we are led to understand that, our client has as of last month been granted one year's exceptional leave to enter the UK, neither we or our client has received formal notice of that decision. We look forward to receiving the same. "We take the view that on the Secretary of State's own findings he could not logically have refused to grant political asylum. The grant of exceptional leave is clearly of much lesser value to our client. Accordingly we see no reason why we should withdraw our judicial review proceedings." There is a further letter of 10 October from Mr Kaygusuz's solicitors to the Treasury Solicitor. In it Mr Kaygusuz's solicitors say that during the course of a telephone conversation the Treasury Solicitor informed them that, after reconsideration of Mr Kaygusuz's case, he would be granted one year's exceptional leave to remain in the United Kingdom and not political asylum. Finally, I refer to the letter of 5 December 1990 from the Immigration and Nationality Department to Mr Kaygusuz's solicitors. It says, in relation to the reconsideration of his case: "This Department then reconsidered Mr Kaygusuz's case in the light of the application for judicial review, and it was decided that although Mr Kaygusuz did not qualify for refugee status, he should be granted exceptional leave to remain in the United Kingdom. This decision based upon a complete reconsideration of all matters, was dated 2 October 1990 and superseded that of 5 March. The decision you are seeking to have judicially reviewed, I have to say, no longer subsists." Mr Jay on behalf the Secretary of State accepts that the application to quash the Secretary of State's decision of 5 March 1990 was appropriate for consideration by the Divisional Court at the time when leave was granted on 21 June 1990. However, he maintains in relation to that application that it is not for the Divisional Court by way of a declaratory order to substitute its own view supposedly on the law for what was in essence a decision on the facts by the Secretary of State. Coming forward to the position as it now is in support of his application to strike out Mr Kaygusuz's application, Mr Jay submits that for the court to consider judicial review of that 5 March 1990 decision now would be otiose by reason of the decision made by the Secretary of State on 2 October 1990. He says that it has been superseded by that part of the decision of 2 October 1990 which gave Mr Kayfusuz leave to enter for a limited period. The basis of his submission is that the relevance of the status of a political refugee goes to the principal question, ordinarily considered under section 3 of the 1971 Act, whether a person who is not a British citizen should be given leave to enter the country and that accordingly there is nothing to which such a question can properly be attached suitable for challenge to the Divisional Court. As to the contingent application for leave to move by Mr Kaygusuz for judicial review in respect of the Secretary of State's decision of 2 October 1990, Mr Jays says, for the same reasons, that leave should not be granted because Mr Kaygusuz has leave to enter which does not depend in any way upon his status, one way or the other, as a political refugee. He submits that as a matter of law leave should be refused. He also submits that as a matter of discretion leave should be refused, pointing out that it is open to Mr Kaygusuz now to apply under section 3(1)(b) for leave to remain in the United Kingdom at the end of his 12 months' limited leave and to re-open the question of asylum going to the determination of that issue. If the re-application is unsuccessful, Mr Kaygusuz could appeal to the adjudicator under section 15 of the Act, and Mr Jay refers me to the wide powers of the adjudicator on such an appeal. Among those powers is the entitlement of the adjudicator, if he considers it appropriate, to review the exercise by the Secretary of State of his discretion. The adjudicator has much wider powers and potentially more favourable powers from the point of view of Mr Kaygusuz in such proceedings than the Divisional Court would have in these, looking at it, as it must, on the Wednesbury principal. Similarly, Mr Jay submits in relation to both applications, as I have indicated already in relation to the first, that there is no possiblity of the court granting declaratory relief which is what Mr Kaygusuz really seeks here -- a declaration that he is a political refugee. Mr Jay tells me that in his experience he has not known the Divisional Court to grant declaratory relief in an immigration case, and one can see at a glance the difficulty. There is a great difference between striking down the decision on the Wednesbury basis and substituting for it the view of the Divisional Court. He says about the case of Barty-King v Ministry of Defence [1979] 2 All ER 80, a decision of May J relied upon by Mr Gill, that it indicates that in judicial review cases generally the ability of the court to grant declaratory relief is exceptional. He says that in that case declaratory relief was given because it was the only other conclusion open to the court in the light of the issues before it, given its striking down of the decision in respect of which the application was made. It may also be that the view of May J in that case would no longer stand in the light of subsequent jurisprudence. Mr Gill, taking the view that the decision of 2 October 1990 merely confirmed the decision of 5 March 1990, maintained that in respect of one or other of these decisions -- the one where he has been given leave, or the one where he seeks leave -- he is still entitled to have the matter considered by the court. The basis of his argument is that Mr Kaygusuz is entitled on his approach to indefinite leave to remain. The fact that he has been given limited leave to remain is no adequate reason for preventing the court from considering his status as a potential political refugee. Mr Gill relies upon the shortcomings of the limited leave that he has been given. The first is, which holds good despite the statutory provision in section 3(4) of the 1971 Act, that he may not be in so strong a position as a person with full leave if he leaves the country temporarily and then returns during the period of that limited leave. The second is that he is unable to bring dependants to this country as a person of limited leave. I was not told by Mr Gill that he has dependants that he wished to bring here, but it is nevertheless a disadvantage in status. Most importantly Mr Gill relies of course on the fact that the leave is not indefinite. He says that in those circumstances the court should be slow to reject an application as a matter of discretion at the leave stage. Mr Gill dismisses the value of the alternative course of Mr Kaygusuz applying for leave to remain under section 3(1)(b) of the Act supported by a further application for asylum. He says that that would involve delay and that the likely outcome would be the same, and he would be returning to the Divisional Court many months later. He also made the point that the Secretary of State could continue to frustrate Mr Kaygusuz's application for leave to enter in this way, a course which, I must say, I would doubt that the Secretary of State would adopt. As to the problem of the court granting declaratory relief, he argued that it may be that the Divisional Court would say that the Secretary of State was wrong and that only one conclusion could flow from that which, whether counted as a form of quashing his decision or as a declaration, would have the necessary effect of bringing about leave to enter. In substance Mr Gill submits that it would be wrong to require the applicant to pursue the appeal system provided by the Act. In my view, Mr Kaygusuz's application for which leave has been granted should be dismissed, and, if it is a necessary part of the order, that the leave granted by Kennedy J to make it should be set aside. I agree with Mr Jay that, given the twofold decision of the Secretary of State on 2 October 1990, the basis for that application for judicial review is gone. The application by Mr Kaygusuz for the recognition of the status as a political refugee was a means to an end, namely, to obtain leave to enter. Although it is limited, he now has leave to enter the country and to remain here, and there is nothing to which his application for political asylum can attach, at least in relation to that initial decision. The same argument defeats his application for leave to apply for judicial review of the decision of the Secretary of State of 2 October 1990. His position is that he may re-apply for recognition of the status as a political refugee in the context of an application for leave to remain under section 3(1)(b) of the Act. There are, as Mr Jay pointed out to me, wider arguments available to him and the appeals procedure open to him under that Act, should he be unsuccessful in his application upon that ground. Some of the drawbacks to which Mr Gill referred are questionable on the facts and there are advantages, as I have just and earlier indicated. His main concern at this stage, given his status as a person who has been given leave to enter the country, is the obtaining of declaratory relief -- a decision that he is a political refugee entitled to aslyum upon which a further decision on his leave to enter or remain can be made when the time comes. In my view, this is not a case in which the Divisional Court would be prepared to consider the grant of declaratory relief; and I ask rhetorically: what would Mr Gill do with a decision from the Divisional Court simply quashing either decision of the Secretary of State? He would be left to re-open the matter through the machinery available in the same way as he would if he were to apply for leave to remain under section 3(1)(b) on the ground that he is entitled to political asylum. For those reasons I do strike out the judicial review proceedings in respect of the Secretary of State's decision of 5 March 1990 and, if it is necessary, in addition set aside the leave granted by Kennedy J to make the application in those proceedings. I also refuse leave to Mr Kaygusuz to move for judicial review in respect of that part of the Secretary of State's decision of 2 October 1990 confirming his earlier view that Mr Kaygusuz was not entitled to the status of a political refugee.

DISPOSITION:

Application to set aside leave, granted

SOLICITORS:

Donald Fletcher, Baker & Co: Treasury Solicitor

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