R v. Secretary of state for the Home Department, Ex parte Tabed

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

Queen's Bench Division

[1994] Imm AR 468

Hearing Date: 13 May 1994

13 May 1994

Index Terms:

Political asylum -- children of applicant -- no documentation -- immigration officer decided to fingerprint children -- Secretary of State had policy that dependants of applicants would normally be fingerprinted if they had no documentation -- objections considered but rejected -- whether Secretary of State had unlawfully fettered his discretion. Asylum and Immigration Appeals Act 1993 s 3(1).

Held:

Application for leave to move for judicial review of the decision of an immigration officer to fingerprint three children, dependants of an applicant for political asylum. The children carried no documentation. It was the policy of the Secretary of State to require those who applied for political asylum and who had no documentation showing their identity, to be fingerprinted, and for their dependants likewise to be fingerprinted. The legal representative of the applicant protested against the children being fingerprinted, but the immigration officer decided to go ahead. Counsel argued that in the circumstances the Secretary of State had by his policy unlawfully fettered his statutory discretion. Held 1. The Secretary of State had not unlawfully fettered his discretion. 2. The Secretary of State was entitled to adopt a policy that as a rule, undocumented asylum seekers should be fingerprinted. Following British Oxygen such a policy could not be inflexibly applied: in each case consideration had to be given to any grounds put forward why the policy should not be applied: that had been done in this case.

Cases referred to in the Judgment:

British Oxygen Co Ltd v Board of Trade [1971] AC 610; [1970] 3 All ER 165.

Counsel:

R Scannell for the applicants; Miss A Foster for the respondent PANEL: Sedley J

Judgment One:

SEDLEY J: This is a renewed application for the grant of leave to seek certiorari to quash a decision made on behalf of the Secretary of State that the three children, who are the effective applicants, were to be fingerprinted. The power to fingerprint arises, and it is not disputed that the children's circumstances bring them within this power, under section 3(1) of the Asylum and Immigration Appeals Act 1993. "Where a person ('the claimant') has made a claim for asylum, an immigration officer, constable, prison officer or officer of the Secretary of State, authorised for the purpose of this section may (a) take such steps as may be reasonably necessary for taking the claimant's fingerprints or; (b) by notice in writing require the claimant to attend at a place specified in the notice in order that such steps may be taken." The three children who are the applicants were so required. By letter of 9 December 1993, their solicitors were told by the asylum division of the Immigration and Nationality Department in the Home Office: "In accordance with Section 3 of the Asylum and Immigration Appeals Act 1993 we will need to take fingerprints of you, your spouse, any other dependants who are in the United Kingdom and we may take those of your children." There is a "ps" added: "As to your point about the possibility of fingerprinting the children, it is up to the discretion of the senior officer." The clerk to the applicant's solicitors, Mr Honan, deposes that on attending with the children at the screening unit, the senior officer, Mr Rennison, told him that since the children had no documentation they would all have to be fingerprinted. It is common ground that the children had no documentation. Mr Honan protested and took advice on the telephone from his principal. Having been advised by his principal, he told Mr Rennison, as was the case, that the Act gave him power, but not an obligation, to fingerprint children such as the applicants. Nevertheless, Mr Rennison indicated he would wish to proceed with fingerprinting them. This course of events was recorded by the applicant's solicitors in a letter dated 27 January 1994. It says in part: "We understand when our clerk attended the screening unit on Monday 24 January 1994, together with the above named asylum applicants, you indicated all of them must be fingerprinted if they had no documentation. Our clerk was asked to sign forms confirming that he had no objection to the fingerprinting taking place. Following strong objections made by our clerk about fingerprinting in view of their ages, our clerk was advised nevertheless that they would all have to be fingerprinted." In a letter dated 10 February 1994, the Immigration and Nationality Department has written to the applicant's solicitors: "Firstly children are not routinely fingerprinted at the asylum screening unit as your letter suggests. When the Ahmed Tabed children attended on 24 January, Mr Rennison explained to your clerk that if the children had had ample means of identification, such as passports endorsed with leave to enter, they would not have been fingerprinted. Children under the age of 16 who apply for asylum in their own right, or as dependants, are fingerprinted only if there is doubt as to their identity due to the lack of genuine documentation." Mr Scannell for the applicants accepts that the Secretary of State can lawfully adopt a policy, of the sort described in the letter, that he will fingerprint undocumented asylum seekers in the exercise of his discretionary power under section 3(1) of the 1993 Act, but he says the Secretary of State has unlawfully fettered the exercise of his discretion, within the four corners of such lawful policy, by applying that policy without giving any reason why these particular children should be fingerprinted. Mr Scannell says the sole ground given is the policy itself. He also submits that there is a breach of a legitimate expectation, created by public statements made on behalf of Her Majesty's government, that the children will not be routinely fingerprinted. However, this submission falls to be determined according to the same considerations as the principal submission put forward by Mr Scannell. It seems to me that Mr Scannell's approach misunderstands the law concerning the adoption and implementation of lawful policies for the exercise of an executive discretion. I have had the assistance of Miss Foster for the Home Office. Although neither counsel has referred me to it, both they and I are familiar with the decision of the House of Lords in the British Oxygen case. As I understand it, the import of that decision is that it is lawful, and Mr Scannell has implicitly recognised this, for a decision maker to adopt a policy as to how he or she will exercise a discretion, provided that the decision maker is prepared in any one case thereafter to listen to reasons why the policy should not be applied on the facts of that particular case. It will be observed that this scheme of things is the converse of that for which Mr Scannell argues. His argument is that, although it is lawful to adopt a policy, there must be reasons for applying it before it is applied. That seems to me to be a submission which is misconceived in law. To decide to fingerprint all asylum seekers would be a blanket policy and so a negation of the statutory discretion. Equally, to fingerprint asylum seekers randomly or arbitrarily would be a grave abuse of power. This is precisely why a policy is not only lawful but is, in such circumstances, a practical necessity. The policy adopted here, the legality of which is not challenged in itself, is therefore that it is undocumented asylum seekers who, as a rule, will be fingerprinted under the new power. The British Oxygen doctrine provides that such a policy may not be inflexibly applied, but must be applied having considered in each case whether grounds have been shown for disapplying it. In the present case, the applicant children were well, competently and conscientiously represented by a solicitor's clerk with a telephone link to his principal. He made his protests; he put forward the arguments that seemed appropriate against the fingerprinting of the children; they were heard and there is no evidence they were not considered by Mr Rennison who had to take the decision. Having heard them, Mr Rennison decided it was not a case for disapplying the policy. This seems to me to be a paradigmatic situation in which a policy has been lawfully adopted and applied. It is not a blanket policy or, therefore, a negation of discretion. Consideration has, on the face of the evidence, been duly given to disapplying the policy in this particular case; that possibility has been rejected. There is, in my judgment, nothing more to be said in point of law in such a situation. Accordingly, notwithstanding Mr Scannell's attractive presentation of the case, it appears to me not to be a proper one for the grant of leave.

DISPOSITION:

Application refused

SOLICITORS:

Gordon, Doctors and Walton, London, SE17; Treasury Solicitor