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

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

Queen's Bench Division

[1992] Imm AR 127

Hearing Date: 12 November 1991

12 November 1991

Index Terms:

Leave to enter -- refusal -- applicant had claimed political asylum -- interviewed -- Secretary of State refused application -- "minded to refuse" notice procedurally incorrect -- refusal notice withdrawn -- new "minded to refuse" notice issued -- whether in the events which had happened the applicant secured by operation of law six months' leave to enter. Immigration Act 1971 (as amended) sch 2 para 6.

Held:

The applicant sought leave to move for judicial review of the decision to refuse him leave to enter the United Kingdom. He arrived with a false passport. He claimed political asylum. He was interviewed. The Secretary of State issued a "minded to refuse" notice. Shortly afterwards the immigration authorities concluded that the notice was procedurally incorrect: the notice was withdrawn and a new notice issued. Counsel sought leave to move on the basis that if the first notice was invalid or defective, then no notice of refusal was issued within the statutory period and it followed that by virtue of the provisions of the 1971 Act, the applicant had secured six months' leave to enter. Held 1. When the Secretary of State regards a refusal notice as withdrawn or as not the final word in regard to an asylum claim, at the same moment that the notice loses its effect, the examination to which the Act refers, must be deemed to be continuing thereafter until a further decision is taken. 2. The application would be refused.

Counsel:

M Gill for the applicant; The respondent was not represented. PANEL: Simon Brown J

Judgment One:

SIMON BROWN J: This application has been advanced most ably, succinctly and attractively by Mr Gill. Let me try in a very few words to indicate its nature. This applicant arrived in the United Kingdom on 27 February 1991. He presented a false passport, a passport in someone else's name, and immediately sought asylum as a political refugee. His application was considered by the Home Department but refused on 13 April 1991. A day or so later, however, the Home Office, recognising that they had committed some procedural error in regard to the "minded to refuse" notice, decided to look afresh at the asylum application and, indeed, their reconsideration of that continues to this day. The application is founded upon the Home Department's letter of 18 April, five days after the refusal notice, notifying the decision to treat the earlier decision to refuse the asylum application as withdrawn and to consider it afresh, that consideration however being in the context of a fresh minded to refuse notice which was included within the letter of 18 April. The essence of the applicant's contention, if I understand it right, is that in those circumstances the original refusal notice of 13 April was to be regarded as invalid, as a nullity, and as ineffective therefore to stop his entitlement to an automatic six months' leave to enter, an entitlement which would be his unless there was a refusal notice within 24 hours of the completion of his examination. Although a six months' leave to enter, had one been granted on 13 April would by now have expired, that is by no means to say that it would not put this applicant in a very advantageous position. Clearly it would. Is that however the position or, indeed, properly arguably so? I have reached the conclusion that it is not. I first point out that if this is a well-founded claim then, to my mind, it follows, as the night the day, that any time this court were to quash a refusal notice whether in respect of an asylum claim or any other claim for leave to enter, the applicant, because there would then be no valid refusal notice within 24 hours of the completion of his examination, would, as this applicant claims here, be entitled to six months' leave. That consequence of course cannot of itself indicate that the argument is ill-founded. Nor can the consideration that equally it might well be thought a severe discouragement to the Home Department to act responsibly, as in this very case, by recognising their procedural error and embarking afresh on consideration of the asylum claim. I believe that the answer to Mr Gill's contentions is essentially this, that when the Secretary of State, as here, regards a refusal notice as withdrawn, to use the language of the Department's letter of 21 May 1991 or, putting it another way, not the final word in regard to an asylum claim, then at the same moment that the notice loses its effect so too the examination must be deemed to be continuing thereafter until a further decision is taken. I believe that the 24 hours, in effect, starts afresh from what will ultimately be the effective decision. All that is upon the assumption that the applicant here is right in contending that the refusal related solely to a claim for asylum and not, as the Home Department have contended in the correspondence, also to a parallel claim to re-enter as a returning resident founded upon the false passport. That assumption I would have been prepared to make had I felt that the main argument was one that properly entitled the applicant to have required leave but, for the reasons indicated, I do not.

DISPOSITION:

Leave to move refused

SOLICITORS:

For the applicant: Jane Coker & Co, London N17

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