R v. Secretary of State for the Home Department, Ex parte Karamjit Singh Chahal

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte KARAMJIT SINGH CHAHAL

CO/3314/95

10 November 1995

Queen's Bench Division: Macpherson J

Deportation-on grounds of national security-detention during protracted legal challenges to deportation-whether effluxion of time made the continuing detention unlawful-whether Secretary of State's refusal temporarily to release the applicant unreasonable. Immigration Act 1971 s. 3(5)(b), sch. 3, para. 3(3).

The applicant for judicial review and alternatively a writ of habeas corpus was a citizen of India. The Secretary of State decided in August 1990 that he be deported on grounds of national security. Since 16 August 1990 the applicant had been detained. This long period of detention arose through his various legal challenges to the decision to deport him: his latest challenge was through the European Court of Human Rights and in that forum a full hearing was expected to take place in March 1996.

The Secretary of State, for reasons he asserted of national security, refused to release the applicant from detention pending the final outcome of his case.

Counsel argued that through the effluxion of time the applicant's detention was unlawful and a writ of habeas corpus should issue. In the alternative he argued that the refusal of the Secretary of State to release the applicant temporarily was Wednesbury unreasonable.

Held

1. It was not disputed that the original detention of the applicant was lawful. The effluxion of time could not sever the link between the present detention and the original decision to detain the applicant. It followed that the detention was not presently unlawful and there were no grounds for the issue of a writ of habeas corpus.

2. On the facts, the Secretary of State's decision not to release the applicant was not Wednesbury unreasonable.

N Blake QC for the applicant

P Havers QC for the respondent

Case referred to in the judgment:

R v Secretary of State for the Home Department ex parte Cheblak [1991] 1 WLR 890: [1991] 2 All ER 319.

MACPHERSON J: This is, of course, a most unfortunate case because Karamjit Singh Chahal has been detained since August 1990. It was on 16 August 1990 that he went to Her Majesty's Prison in Bedford, where he has remained ever since. Furthen-nore, lest it be thought that I do not have the human side of this case in mind, I have seen amongst the documents, statements from the applicant himself and from members of his family and other observers which show that he is very unhappy in his confinement. Perhaps that is a trite remark, for anybody would be unhappy to be confined for more than five years. But I bear in mind, of course, all the individual and personal circumstances of the case. Furthermore, I have read every document that has been put before me and had the most helpful and sympathetic argument from Mr Blake. But since I do not believe in unnecessary suspense I am bound to say at once that I am unable to accede to the arguments put forward on behalf of the applicant.

It is necessary to deal with some of the history, but those who hear this judgment will understand that since this case has been in the courts for many years it would be a burden upon the listener if I were to go through every date and every incident that has occurred. The facts can really be stated quite succinctly. The applicant came to the United Kingdom in 1971. He was granted indefinite leave to remain in 1974. His wife came here and his children were born here. In the 1980s he went to India and various things occurred there which figure of course in the history of the case. In August 1990 the Secretary of State decided that the applicant should be deported for reasons relating to the public good. As I have indicated, he has been detained since then. In 1991 the Secretary of State refused the applicant's claim for asylum. It is of considerable significance that in June 1991 the applicant appeared before what is called the Advisory Panel. I referred to the Advisory Panel during argument as "the three wise men". In fact there are more than three and it is a group of distinguished individuals headed by, at that time, a Lord Justice of Appeal, Lloyd LJ. That body exists in order to provide information to assist the Home Secretary in his decision in difficult and, particularly, in security-sensitive cases. The applicant did not need to appear before that body and the advice given by that body is never revealed. The deportation order was signed in July 1991. Since then, the applicant has undoubtedly been involved in the travails of the legal system. On 2 December Popplewell J quashed the decision refusing asylum on the applicant's application for judicial review. The Secretary of State refused an application for temporary release pending reconsideration of the asylum claim. It should be noted that was the first in quite a long line of refusals to release this man from prison.

In 1992 the applicant was refused application for temporary release. That was maintained on yet a further application in April 1992. He lodged a second application for judicial review in May 1992 and a month later the Secretary of State refused his application for asylum again and decided to proceed with deportation irrespective of his status. In July 1992 Rose J granted leave to move on the applicant's third application for judicial review and his application to be released temporarily was adjourned. But Rose J refused bail pending the hearing of the application in July 1992. In February 1993 Potts J dismissed yet a further application for judicial review and he too refused bail pending appeal. In July 1993 the case was heard by the Court of Appeal. Those judgments are recorded in the law reports and can be seen by anybody who needs to read them. But those familiar with the case will appreciate that both Potts J and the Court of Appeal rejected the grounds put forward and held therefore that the Secretary of State had not acted unlawfully or irrationally or perversely in the decision which he had made.

The applicant then acted, as he was fully entitled to do, by introducing his application to the European Commission of Human Rights in Strasbourg. The Commission asked the Secretary of State not to remove the applicant pending the Commission's determination of the application. I read that sentence because, of course, all this time, subject to the applications to the court, this man was under a deportation order and could have been removed.

The judgment of the Court of Appeal was given in October 1993, the hearing having been in July. In March 1994 the Appeal Committee of the House of Lords dismissed the applicant's application for leave to appeal. In May 1994, written observations having been received from the applicant and the United Kingdom Government, the Commission decided to hold an oral hearing and that was heard on 1 September 1994. Further written observations were filed, and on 27 June 1995, only five months ago, the report of the Commission was given and they found unanimously-and it is important that I should read their findings-that:

"(a)there would be a violation of the United Kingdom's obligations under Article 3 of the European Convention if the applicant was deported to India.

(b)there has been a violation of Article 5 (excessive detention).

(c)there would be a violation of Article 8 if the applicant were deported to India.

(d)there has been a violation of Article 3 of the Convention."

The report of the Commission was published in September 1995. On 19 September 1995 the applicant sought temporary release pending the court's decision. In October the Secretary of State gave his indication which amounted to a decision that he was not going to release the applicant temporarily.

It is in those circumstances that Mr Blake applied for judicial review of the Secretary of State's October decision and, in parallel, he seeks a writ of habeas corpus in connection with the detention of the applicant.

Mr Blake rightly agreed at the outset that there is very little distinction between the two applications. It is perhaps important to stress, however, that the writ of habeas corpus will not issue unless the detention can be said to be unlawful. If the writ were to issue then the court would have power to consider an application for bail. In so far as the judicial review proceedings are concerned, leave has been Given, by Laws J, on 12 October, to move on that application; and in parallel with the habeas corpus proceedings that matter is being heard today. The application is for release, pending the hearing of the case which will now go to the European Court of Human Rights. Nobody needs to be reminded that the report of the Commission is not the finding of a court. It is, of course, in a sense, as Mr Blake indicates in his argument, a quasi-judicial body in the sense that it hears both sides and reaches its decision in the terms to which I have referred. But once the report comes from the Commission the next step, which has been taken in this case, is for the United Kingdom and for the applicant to send the case to the European Court of Human Rights. It is there that the full decision of that court will be reached and that will not be heard until March 1996 and probably not decided until the summer of 1996.

Mr Blake has put the matter in a variety of ways. In the Form 86A the challenge is set out in paragraph C.6:

"In the premises:

(a)the Applicant has been detained pursuant to the decision to deport for an unreasonably long period and the power to lawfully detain him has ceased; and

(b)there are no prospects of the Applicant being deported to India within a reasonable time; and

(c)there is a real likelihood that the Applicant will never be deported at all; and

(d)having regard to the continued violation of the Applicant's human rights by his continued detention, no rational decision to continue to detain could be made."

The truth, as it seems to me, is that in order to establish a viable ground for judicial review the Secretary of State's decision must be able to be attacked as being unlawful per se or irrational. It is that to which Mr Blake addresses his arguments. Summarising his arguments, towards the end of his submission he said this. He said, first, the link between the original justification and the statutory power to detain has been severed by the five-and-a-quarter years which have elapsed since this man's detention. He adds to that there appears to be debatable legality in the decision to detain him. Second, he says in so far as the matter falls not within the limits of habeas corpus the discretion of the Secretary of State has not been lawfully exercised, in 1995, to detain him further.

It seems to me that it would be quite unnecessary to go into the rights and wrongs of the last application for judicial review which went to the Court of Appeal. But it is of the greatest significance that apart from other matters which were relied upon by the Secretary of State there are matters which have never been revealed on which the Secretary of State relies. It is at this moment important to refer to the affidavit of David Cooke, who is employed at the Immigration and Nationality Department and who has sworn a short affidavit dealing with the grounds upon which the refusal was based in October 1995. Paragraph 2 reads as follows:

"The Applicant was detained in August 1990 and served with notice of intention to deport because the then Secretary of State was satisfied that he represented a substantial threat to national security. The Secretary of State remains satisfied that such a threat persists. He continues to believe that the Applicant's deportation would be conducive to the public good for reasons of national security and would contribute to the fight against international terrorism. Given the reasons for the Applicant's deportation the Secretary of State remains satisfied that his temporary release from detention would not be justified. He has concluded the Applicant could not safely be released, subject to restrictions, in view of the nature of the threat posed by him."

Secondly, the affidavit goes on in paragraph 3:

"The Secretary of State has considered but does not accept the conclusions in the Report of the European Commission of Human Rights. The United Kingdom has referred the case to the European Court of Human Rights and intends to contest it vigorously there. The government had indicated to the registry of the court that it would support reasonable attempts to expedite the hearing, which has now been listed for 25 March 1996."

Taking the second matter first, it does not seem to me that the conclusion of the Commission carries this applicant far. It is perfectly true that he and those who support him will be heartened by the conclusions of the Commission. At one stage, using the sporting metaphor, I indicated that it put him "at first base" in connection with his application to the court. Mr Blake says he is further ahead than that. That may be and, of course, there is encouragement for him in the European dimension, only in the European dimension at present, that he may succeed in the court. But it has to be remembered that that case has not been decided. It would be quite wrong for me to ignore the Secretary of State's present insistence that he is correct in the conclusion that he reached and that he based his decision on viable and justifiable grounds. Those matters will be explored later. I do not believe that the added dimension of the European aspect of this case can, of itself, assist the applicant.

At one stage Mr Blake said that the question was whether it was lawful for the applicant to be kept in prison from now until the decision. In time terms we know that means until March. But if his submission is correct the same would apply to a much shorter period. I do not believe that it is arguable that for a short or longer period, given that the matter is in the scale of months and not, of course, years, that the arrival on the scene of the European decision of the Commission can assist this applicant in seeking to obtain even temporary release.

The matter is much more difficult than that, however, for this court because the Secretary of State has indicated throughout that there are reasons why the deportation order was made and why it has been maintained through all the series of cases in the English courts and why it will be contested in the future which have not, so far, and cannot, in the Secretary of State's judgment, be revealed. It is a matter of interest that in the European case a good deal more information was given on that aspect than had been released in the English courts up to date. Whether that is in favour of the applicant or against him. I am not sure. It may simply mean that there is a good deal more behind the curtain than the applicant was prepared to admit or that this court has ever known about. Be that as it may, the indication is, for reasons which cannot be revealed, which concern national security here and abroad and terrorist activity, the Secretary of State is not prepared to reveal a portion, and obviously an important portion, of the reasons for which this man is detained and has been detained through all the applications for release which have been heard so far. As was said in the case R v Secretary of State ex parte Cheblak [1991] 2 All ER 319 at page 339:

"Parliament has conferred on the Secretary of State the power to say when the deportation of a foreign national is conducive to the public good for the reasons of national security. Although the reasons may not seem convincing to the court because of lack of any information upon which the decision is based, the statement that to give further information might jeopardise national security is one that the court is bound to accept. For these reasons I would uphold the decision to refuse the appellant a writ of habeas corpus and leave to bring the proceedings for judicial review."

That case was different from the present one, of course, but that principle, in my judgment, applies and of course it creates difficulty both for the applicant and for the court. All who listen to this judgment must realise, in any event, that this court is not a court of appeal from the decision of the Secretary of State. I say that in case after case in this Division. Many people ignore what I say. Mr Blake never would because he is apprised so well of the jurisdiction of this court. It is not for me to consider the whole case afresh and decide what I might do in the circumstances. I have to look at the decision of the Secretary of State and judge whether, in all the circumstances, upon the information available, he has acted unlawfully, or with procedural impropriety, or perversely to the point of irrationality.

I am wholly unable to say there is a case for such a decision, particularly bearing in mind that I do not know the full material on which the decisions have been made. Some may complain that secrecy of that kind is undesirable. Such complaint would be unjustified because it is obvious and right that in certain circumstances the Executive must be able to keep secret matters which they deem to be necessary to keep secret. If it was thought that there was an abuse in that direction in this case I would say so without hesitation and without any fear whatsoever. There are no grounds, in my judgment, for saying or even suspecting that there are not matters which are present in the Secretary of State's mind of that kind upon which he was entitled to act. Even in a case where the full facts are before the court, it is not for the court to reconsider the Secretary of State's decision. It is always and only for the court to consider the legality and the lawfulness of what the Secretary of State has done. I am unable to say that the long period of detention of this man can conceivably be said in itself to be unlawful. I understand and note the cases cited by Mr Blake which indicate that, in certain circumstances, an applicant can say that the process of the court and time taken should not be held against him even though he initiated the proceedings. I am not sure that the death penalty cases really bear comparison with the present one but I bear in mind what is said in those cases. Here, the processes of law, all initiated by the applicant, have prolonged his detention for a very long time and that is regrettable. But I am wholly unable to say that there is any severing of the link between the legality of this detention under the provisions of the immigration Act and the relevant provisions of the immigration legislation and the present day which would entitle me to say that the detention has in some way now, suddenly, or slowly, become in itself unlawful. The detention per se was plainly lawful because the Secretary of State has the power to detain an individual who is the subject of a decision to make a deportation order. That in itself, in my judgment, would eliminate the application for a writ of habeas corpus because if the detention was lawful and has not for some reason become unlawful, habeas corpus would not run so that any question of an application for bail, so framed, would not be available to the applicant. In my judgment the only route in which he had any hope was the judicial review route and I am convinced that it cannot be said, now that the matter has been fully expounded by counsel, most experienced in this field, that there are any grounds upon which judicial review should run to upset this decision.

Perhaps the application to the Court of Human Rights may be expedited. But even if it is not, I am bound to say that the decision to detain this man until his remedies have been finished and until the final decision has been made appears to be me not only to be not irrational but, indeed, to be the only decision which the Secretary of State could have properly made. That appears to have been the decision of the many judges during the course of this case. The additional months which have been added to his detention have not persuaded me that there should be any different approach to the subject.

I finish as I started, by saying in human terms, of course, I regret the fact that this man is still in Bedford Prison. It is most undesirable that he should be there longer than is necessary but I see no grounds upon which I would either be entitled or able, in legal terms, to allow him to be released today. Therefore this application must be refused.

Application refused

Solicitors: Winstanley-Burgess, London, EC1; Treasury Solicitor

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