R v. Secretary of State for the Home Department, Ex parte Rosed and Others

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte ROSED AND OTHERS

Queen's Bench Division

[1991] Imm AR 349

Hearing Date: 15 February 1991

15 February 1991

Index Terms:

Children -- over-age when relationships to sponsors established -- refused entry clearance while minors -- Secretary of State had declined to exercise his extra-statutory discretion in their favour to admit them to United Kingdom when satisfied as to relationships -- had also declined to refer the cases to adjudicators under the provisions of the 1971 Act -- whether, following ex parte Uddin, that refusal to refer was unreasonable -- whether Secretary of State had an obligation so to refer such cases to adjudictors. Immigration Act 1971 s 21: HC 251 paras 55, 56.

Held:

The applicants for leave to move for judicial review had all been refused entry clearance as minors because their relationship to their sponsors had not been accepted. When they were over-age, DNA tests had led to the relationships as claimed being accepted. The Secretary of State had considered the cases in accordance with his publicly announced policy of 14 June 1989, but had decided that he would not exercise an extra-statutory discretion in their favour. On application to move for judicial review, counsel argued that in any event the applicants had a status that entitled them to entry clearance. The refusal of the Secretary of State to refer the cases to adjudicators for opinions, under section 21 of the 1971 Act was, in the light of ex parte Uddin, unreasonable. Complaint was also made of the imprecise terms of the June 1989 policy statement. Held: 1. The applicants did not have a status resulting from the late acceptance of relationships which gave them a right to entry clearance. 2. The judgment in ex parte Uddin put no obligation on the Secretary of State to refer such cases to adjudicators pursuant to section 21 of the 1971 Act, nor was he so required in fairness to do so. 3. The policy statement of 14 June 1989 could not be impugned before the court as being too general or vague in its terms, nor could it be attacked because it did not provide a right of appeal against an adverse exercise of discretion. 4. Except in the case of Abdur Rahim, leave to move would be refused.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Noor Uddin and anr [1990] Imm AR 181.

Counsel:

R de Mello for the applicants; G Sankey for the respondent PANEL: Hutchinson J

Judgment One:

HUTCHISON J: These applications for leave all essentially raise similar issues. They concern cases in which applicants for entry clearance under what is now rule 53 failed only because the entry clearance officer was not satisfied as to their relationship with their sponsors; but that relationship has subsequently, at a time when they were adults and therefore no longer able to claim entry as of right on proof of relationship and age, been established by DNA testing. With the exception of the case of Rahim, which I have just mentioned, they all rely on arguments founded on the Secretary of State's failure to refer their cases to an adjudicator pursuant to section 21 of the Immigration Act 1971. It is in these circumstances convenient to take one case as an example, and I choose, as Mr de Mello did, the case of Rosed. The Secretary of State's refusal on 15 October 1990 to exercise his powers under section 21 is challenged. The letter in which that refusal is contained makes clear that the Secretary of State accepted that the applicant was within the class of persons who were entitled to ask to be considered for discretionary treatment outside the immigration rules in accordance with the Secretary of State's statement to Parliament of 14 June 1989. In the letter, the Secretary of State made clear that, having in mind the judgment of McCullough J in ex parte Uddin, he had carefully considered whether it would be appropriate to refer the case for the advisory opinion of an adjudicator under section 21, and concluded that it was neither necessary nor appropriate to ask an adjudicator to express an opinion on that policy; and that while he could ask him whether the applicant qualified for admission under the terms of the concession, he had decided that he would consider all the circumstances of such cases himself and would not normally refer such cases where he had already considered exercising his discretion and decided not to exercise it under the terms of the 14 June statement. The grounds of application elaborated by Mr de Mello in argument assert: (a) that the Secretary of State acted unreasonably in declining to refer in cases where he had already exercised his discretion or in cases where a person in this category had not sought the exercise of discretion; (b) that in adopting the course complained of he had improperly frustrated the object of section 21 and had further fettered his discretion by adhering to this approach; (c) he had taken extraneous matters into account in determining the extent of his powers under section 21 by requiring applicants to submit fresh applications for entry clearance before they qualified for consideration under the 14 June statement; this was irrelevant in the context of deciding whether to refer under section 21 which entitled him to refer any matter; (d) the Secretary of State had accordingly allowed his 14 June policy statement which is not an immigration rule to override his discretion to refer under section 21. Mr de Mello also sought to rely on a claim, which I, on Wednesday, rejected in other cases as unarguable, that in effect all persons in this class had an absolute entitlement to enter. In support of his contention that the Secretary of State was unreasonable in not referring under section 21, Mr de Mello placed much reliance on McCullough J's decision in ex parte Uddin [1990] Imm AR 181. This was a case which also concerned over-age applicants, but the decisions challenged had been taken before the policy statement in Parliament, though by the time of the hearing that statement had been made. McCullough J concluded that the letters indicated that the Secretary of State did not appreciate the extent of his powers under section 21, the fact that he could not only refer specific matters but could invite the adjudicator to consider the overall position. Nobody suggested, however, that the Secretary of State should ask the adjudicator what policies he thought he ought to adopt. The judge concluded his judgment by saying that he could not confidently predict that, when his 14 June policy was being applied, the Secretary of State would never wish to make use of section 21. In developing his argument, Mr de Mello first submitted that the terms of the policy statement showed that in truth the Secretary of State had determined not to treat over-age applicants any more favourably, perhaps less favourably, than those applying in reliance on paragraphs 55 and 56 of the current rules, HC 251. The fact that, as Mr Sankey for the Secretary of State told me, some 90 out of the 415 cases which had been referred for consideration under the policy statement had succeeded, notwithstanding that all had failed under the rules mentioned, shows no more than that, in operation, the policy is more favourable; but in my view, it is plainly more favourably expressed also. I contrast "compassionate circumstances" in the statement with "the most exceptional compassionate circumstances" in the rule. Next, Mr de Mello contended that the Secretary of State, having chosen not to resort to the rule-making powers of section 3(2) of the Act but to deal with the problems occasioned by these over-age applicants by formulating a policy statement, had done so in terms which were far too imprecise to provide fair and clear criteria by which entitlement to entry could be gained. Accordingly, he submitted, the case for a reference to an adjudicator was made out, a reference which would remedy the absence of a proper provision in the rules. The point of section 21, he said, was to remedy injustice. As to this, while the policy statement is in very general terms, so are many of the rules; and I cannot accept that it was incumbent on the Secretary of State to deal with this problem in the manner suggested or, in default of his doing so, to refer the matter to an adjudicator. Nor do I accept Mr de Mello's characterization of section 21 as a sort of "cure all". It is a provision to which the Secretary of State may, in cases where he considers it appropriate, have recourse. Nor can I accept his further submission that, in the circumstances of these cases, fairness required that the Secretary of State should refer. Mr de Mello also argued that as no appeal was available in relation to the exercise of discretion under the 14 June statement, a reference to the adjudicator could make good this deficiency. However, I cannot see how the absence of an appeal procedure means that the Secretary of State must refer under section 21 or that his decision not to do so in these cases can be impugned. A further argument particularly pressed by Mr de Mello was to the effect that the Secretary of State made a fundamental error in failing to appreciate that section 21 was concerned with already decided cases whereas the policy statement was to do with discretionary admission in the future, and it followed that the Secretary of State's decision not to refer under section 21 in these cases evidenced his fundamental misapprehension as to his powers under that section. I accept Mr de Mello's distinction, but I cannot accept the argument he bases on it, for, in my view, there simply is no basis for saying that it follows from his premise. The arguments which I have just rehearsed amount, in effect, as it seems to me, to a contention that, relying on ex parte Uddin, the Secretary of State in these cases had effectively an obligation to refer. That is not what that authority establishes and, in my judgment, there is no basis for such a contention. The Secretary of State, as I have already indicated, in his letter clearly stated that he had taken into account the words of McCullough J in that case, and there is no reason to doubt that that is so. Mr de Mello made certain further detailed criticisms of the policy, asserting that in certain respects it was unreasonable. Bearing in mind the approach that this court must adopt to arguments of that sort, I cannot conceive that it would be held that such criticisms could found the claims for relief in these cases. I remind myself that at the stage when leave is sought, my task is merely to decide whether there is an arguable case. That this judgment has been a little longer than would normally be appropriate is attributable to the fact that these cases were more fully argued than is usual at this stage, with an appearance on behalf of the Secretary of State. For the reasons that I have endeavoured briefly to state, I have concluded that there are here no arguable grounds for challenging the decisions on the bases put forward in all of the notices of motion in these remaining cases, and I refuse leave.

DISPOSITION:

Applications refused except in the case of Rahim

SOLICITORS:

Tyndallwoods & Millichip, Birmingham for Rosed and Sattar, Carter-Davidge, Birmingham for Uddin and Ejaz, Rust McKie & Co, Birmingham for Rahim; Treasury solicitor

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