R v. Secretary of State for the Home Department, Ex parte Henry Iranola Olashehinde; R v Secretary of State for the Home Department, Ex parte Gabriel Olawuwo Oladeji And Anr

Queen's Bench Division


[1992] Imm AR 443

Hearing Date: 13 May 1992

13 May 1992

Index Terms:

Deportation -- overstayers -- decision by Secretary of State to initiate deportation proceedings -- assertion by applicants for judicial review that they were exempt from deportation under the provisions of the 1971 Act -- application by Secretary of State to set aside leave granted to move for judicial review. Immigration Act 1971 ss 3(5)(a), 7.

Judicial review -- legal aid -- erroneous advice by counsel -- no arguable case -- error drawn to representative's notice by respondent -- application nonetheless pursued -- taxing authorities to consider whether costs should be disallowed. RSC Ord 62 r 11: Civil Legal Aid (General) Regulations 1989 r 107(3)(b).


Applications by the Secretary of State for leave granted to move for judicial review, to be set aside in two cases turning on the same point of law. The applicants who had been granted leave to move for judicial review were overstayers against whom the Secretary of State had initiated deportation proceedings. Both asserted that they were exempt from deportation, coming within the provisions of section 7 of the 1971 Act. That assertion, based on advice from counsel (not counsel subsequently appearing in the case) was incorrect and followed from a misreading of the relevant section of the Act. The respondent had drawn the misreading of the Act to the attention of the then representatives of the applicants, but nevertheless the applications had been pursued. The Secretary of State accordingly applied for the leave granted ex parte to be set aside. The court also considered the questions of costs. Held 1. On a true reading of section 7 of the 1971 Act its provisions, restricted to those ordinarily resident in the United Kingdom on 1 January 1973, gave no protection to the applicants. 2. There was no arguable point of law and the Secretary of State's decisions could not be challenged on Wednesbury principles. 3. The applicants would be granted legal aid taxation of their costs but the court directed that the matter be drawn to the attention of the taxing authorities to consider whether any of the costs should be disallowed, if wasted by a failure to conduct the proceedings with reasonable competence.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Nazir Chinoy The Times 16 April 1991.


Miss A Foster for the Secretary of State; R O'Sullivan (who had not been instructed in earlier proceedings) for the applicants PANEL: Brooke J

Judgment One:

BROOKE J: There are before the court two motions on behalf of the Secretary of State. The first is in the case of Olashehinde (CO/1806/91) and the second is in the case of Oladeji (CO/2223/91). Although they are two separate cases, I will give one judgment in the Olashehinde case, and then deal with the case of Oladeji quite briefly. In this matter the applicant sought leave to apply for judicial review of a decision by the Secretary of State to remove him from the United Kingdom under section 3(5)(a) of the Immigration Act 1971. He made that application on 2 September 1991. In the grounds settled by counsel it was said that the decision or action complained of was unreasonable and the Secretary of State failed to take into account the interests of the applicant's wife and baby. In his affidavit sworn on 2 September 1991 the applicant explained that he was a Nigerian with a right of permanent residence in Budapest, Hungary, since 1983. On 29 November 1987 he was given leave to enter the United Kingdom from Hungary for a month as a visitor. He later made an out of time application for leave to remain as a business visitor, which was refused by the Home Office on 3 April 1989 without right of appeal. The Home Office later decided to deport him. The solicitors appealed against that decision on his behalf. His appeal was dismissed by an adjudicator on 1 November 1989. He instructed solicitors to apply for leave to appeal to the Immigration Appeals Tribunal, but this application, although made, was later withdrawn. In September 1990 he married a fellow-Nigerian student in London, and there is now a baby of the marriage and he referred to his wife's history. He said that in April 1990 he applied to the Home Office for naturalisation as a British citizen. He was interviewed in January 1991. He and his wife were interviewed again at the end of January 1991. He reported to the Home Office at their request at two-week intervals, and in August 1991 he was served with both an order for deportation and also a restriction order. He said although his wife had been served with a notice to leave the country in October 1990 on the ground that she had no further basis of stay in the country, no further action had been taken against her. With that background the applicant deposed an affidavit as follows: "I am advised and verily believe the same to be true that under section 7(1)(b) of the Immigration Act 1971 a person who is a Commonwealth citizen and was ordinarily resident in the United Kingdom shall not be liable to deportation under section 3(5)(a), (b) or (c) if at the time of the Secretary of State's decision he or she had for the last five years been ordinarily resident in the United Kingdom." He continued, after referring to the contention that his wife would be entitled to the same exemption, that he was further advised and verily believe the same to be true "that the Secretary of State in deciding to deport should have taken into account the interests of my wife and baby and that the decision of the Secretary of State is unreasonable". He then refers to a possible argument by the Home Office with reference to section 33(2) of the Immigration Act 1971, but he refers back to section 7 of the Act, and in particular section 7(2) as a counter to that argument. The matter came before Popplewell J on an application for leave made orally. It appears, from what I have been told, that Popplewell J refused leave on 19 November 1991. But on 29 November 1991 the matter was relisted. Counsel appeared before him on behalf of the applicant. Popplewell J said quite briefly: "I have considered the matter. You should have leave." When the papers were served on the Secretary of State, they wrote to the applicant's solicitors on 18 December 1991 to this effect: "I have read your grounds and your client's affidavit and it seems to me that this application is based on a plain misreading of section 7 of the Immigration Act 1971. No protection against deportation arises unless the Commonwealth citizen concerned was ordinarily resident at the coming into force of the Act (ie 1 January 1973). The conditions at (a), (b) and (c) are additional. It is plain therefore that your clients did not come within the protection of section 7 at all. "I should be grateful if you would consider this case again and would let me know urgently, say within fourteen days, whether you intend to proceed or whether you will agree to withdraw. If you do proceed I will apply for the leave to move granted on 29 November to be set aside and I will ask for an order for costs." No reply was sent. On 24 January the Treasury Solicitor wrote a further letter marked urgent saying that he looked forward to hearing urgently and also referring to the other case. At all events nothing happened. The former solicitors dropped out. New solicitors appeared on the scene in late February. The Treasury Solicitor warned them on 4 March that unless he heard from them within seven days that they proposed to withdraw the application for judicial review, he would apply to the court for an order setting aside the grant of leave to move. The new solicitors replied on 6 March that they had only received the file of papers four days earlier and there was not time to pursue the papers and to get instructions. They asked for matters to be kept in abeyance for three weeks and said that they would write again in due course. At the end of the three weeks the Treasury Solicitor wrote again, saying that he would issue his strike out proceedings by the end of the month, unless he had heard by then that they were going to withdraw the proceedings. He received this reply: "In the light of the contents of your letters of 18 December 1991 and 24 January 1992, we propose to withdraw these applications for judicial review. We have requested our clients to call at our office in order to explain the position to them. We shall write to you in due course on receipt of our clients' further instructions in this matter." On 8 April the Treasury Solicitor wrote again saying: "I look forward to hearing from you within the next seven days with confirmation that the applications have been withdrawn." In a further letter of 23 April, trying to save unnecessary costs, the Treasury Solicitor wrote again. Again there was no reply. Ultimately they made this application on 6 May. Mr O'Sullivan has appeared before the court today instructed by new solicitors to urge upon the court that, notwithstanding the fact that the contentions by the Home Secretary appear to be well-founded, I should take the view that Popplewell J must have considered the merits of the grounds raised in the application and must have formed the view that they were arguable, and in those circumstances it would be rash and unwise for me to set aside the leave granted by Popplewell J, and the matter should continue to be listed for argument in due course by a single judge. The principles which dictate that the court should be slow to discharge a grant of leave were set out by the Divisional Court in R v Secretary of State for the Home Department ex parte Chinov (Times Law Reports, 16 April 1991). The court does have power on inter partes argument to decide that ex parte leave should not have been given, but the power should be invoked very sparingly. Bingham LJ said: "The courts would grant such an order only in very plain cases. It would be quite wrong to set aside leave which had been granted unless the issue was very clear." I was quite unable from Mr O'Sullivan's argument to see any ground on which it could possibly be argued that the issue here was not completely clear. Section 7(1) of the Immigration Act 1971, for which the marginal note is "Exemption from deportation for certain existing residents", provides with crystal clarity: "Notwithstanding anything in section 3(5) or (6) above but subject to the provisions of this section, a Commonwealth citizen . . . who was such a citizen at the coming into force of this act and was then ordinarily resident in the United Kingdom . . .", shall have certain exemptions from the liability to deportation set out in section 3(5). But unless the person in question was ordinarily resident in the United Kingdom on 1 January 1973 and was at that time a Commonwealth citizen, section 7(1) simply does not apply at all. It was a transitional provision included in the Act exempting from liability to deportation certain existing Commonwealth citizens who were then resident in the United Kingdom and in 1992 cannot have all that much continuing practical effect. I have the greatest sympathy with Popplewell J. It is very difficult for a judge faced with a paper application under the Immigration Act, particularly if his attention is distracted by a possible counter argument or alleged possible counter argument by the Home Office referring to other sections, which is not in fact the main objection to the application. In this case it is simply that the applicant's legal advisers have not properly read section 7(1). It has certainly been my experience dealing with applications for leave made ex parte that I have not been totally sure whether the applicant has covered all the grounds in what is quite complicated legislation. The Court of Appeal has said that if one has doubts one should relist the matter and give the respondent the opportunity to make representations. Practical experience has shown that that procedure is now running into difficulties which create further delay of one kind or another. However that may be, I am of the very clear view that the contentions by the respondent are right, that the anonymous source of the advice given to the applicant, which is recorded in paragraph 18 of his affidavit, is wrong and that there is no merit in this application at all. So far as the merits of the application concerning the decision to deport were concerned, that was fairly and squarely within the responsibilities of the Secretary of State, and I can see no ground for saying that they were in any way Wednesbury unreasonable. Accordingly in the case of Olashehinde I set aside the leave granted by Popplewell J. In the other case of Oladeji, the application raised the same point. In those circumstances it is not necessary for me to set out in any great detail the facts of the case. The same counsel and solicitors were acting for those applicants. The equivalent anonymous advice appears recorded in the affidavit of Mr Oladeji in identical terms in paragraphs 14 and 15, and the same way of dealing with the potential argument by the Home Office appear in paragraphs 16 and 17. Mr Oladeji at the end of his affidavit averred that he came within the exemption laid down by section 7(1)(b) of the Immigration Act 1971 and that he was aggrieved by the order for deportation issued against him and members of his family who would also rely upon the exemption as his dependents. He sought leave to challenge the order for deportation. Although the application for leave does not show the date of the order complained of, if appears to have been made some time in 1991. This matter was dealt with in exactly the same way by Popplewell J. He returned to court on 29 November 1991 and said "This raises the same point, you shall have leave". For the same reasons I am satisfied that the Secretary of State is correct and the claim by the applicant that he is protected from deportation by section 7(1)(b) of the Immigration Act 1971 is based on a misreading of section 7 of the Act. The present applicant did not arrive in the United Kingdom until October 1982 and his wife did not arrive until December 1986. Accordingly they were not ordinarily resident in the United Kingdom on 1 January 1973 and were not entitled to the exemption set out in section 7. For these reasons I consider this is a clear case in which the grant of leave for judicial review should be set aside. The court then heard argument on an application for legal aid taxation. His Lordship then gave the following judgment: BROOKE J: What I propose to do is to comply with my duty to make an order for legal aid taxation of the applicant's costs pursuant to regulation 107(3)b) of the 1989 Civil Legal Aid (General) Regulations, but I direct that my judgment in this matter be drawn to the attention of the taxing authorities so that they may consider whether costs ought to be disallowed if they, in their view, have been wasted by failure to conduct the proceedings with reasonable competence. Of course no costs may be disallowed unless notice has been served by the taxing officer on solicitor or counsel to show cause why costs should be disallowed in accordance with the procedure set out in regulation 109(2). Although Miss Foster acting as amicus has drawn my attention to the provisions of Order 62 rule 11, it appears to me that in relation to legal aid taxation the appropriate course in this case is to draw the taxing officer's attention to rule 109 and also to draw his attention to my view that, whatever may have happened before Popplewell J, as soon as the views of the Secretary of State were communicated to the applicants' then solicitors, drawing their attention to the comparatively temporary nature of the exemption under section 7 of the Act, counsel should have advised the legal aid certificate should no longer remain in force.


Leave to move for judicial review set aside


Treasury Solicitor; Nimoh Akainyah & Co, London SE3

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