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SECRETARY OF STATE FOR HOME DEPARTMENT EX PARTE ABDUL RAHEEM SHEIKH, R v. [2000] EWHC Admin 383 (28th July, 2000)
Case No: CO/2023/99
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 28 July 2000
B e f o r e :
THE HON MR JUSTICE SCOTT BAKER
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REGINA
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THE
SECRETARY OF STATE FOR THE HOME DEPARTMENT
EX PARTE ABDUL RAHEEM SHEIKH
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Nicholas Blake QC (instructed by Messrs Menon & Co for the
Applicant)
Miss K Grange (instructed by Treasury Solicitors for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE SCOTT BAKER:
The Applicant, Abdul Raheem Sheikh, seeks the issue of a writ of habeas corpus.
He has a long immigration history which can be summarised as follows. He was
born in Pakistan in 1950. On 14 February 1994 he entered the United Kingdom
with six months leave as a business visitor. Nine days before his leave
expired, on 5 August 1994, he applied for asylum. Following the normal
procedure, he filled in a questionnaire and was in due course interviewed. On
10 July 1995 he was served with notice that he was an illegal entrant. He was
an illegal entrant because, so the Immigration Officer decided, he obtained
entry into the United Kingdom by deception. On 10 July 1996 he was refused
asylum and served with removal directions. He appealed against refusal of
asylum and the special adjudicator dismissed his appeal on 18 July 1997. On 7
October 1997 the Immigration Appeal Tribunal refused him leave to appeal
against that decision. On 1 June 1998 he was detained, but on 4 June 1998 the
Chief Immigration Officer granted him bail with two sureties.
Notwithstanding the refusal of leave by the Immigration Appeal Tribunal, the
Applicant made further representations to the Secretary of State. These were
rejected. On 11 June 1998 the Applicant applied for judicial review. This was
initially directed to the refusal of the Tribunal to grant leave and the
Secretary of State's rejection of the further representations. However, when
the application came before Lightman J, Mr McDonald QC, who appeared for the
Applicant, made it clear that what he really wanted to challenge was the
decision of 10 July 1995 to the effect that the Applicant was an illegal
entrant. Put shortly, his argument was that the decision that the Applicant
was an illegal entrant was vitiated by error of law by the Secretary of State.
A person may be declared to be an illegal entrant where there has been a
deception, but the burden of proof of deception is on the Secretary of State.
His argument was that the burden had not been discharged.
Lightman J refused leave on 20 November 1998 on the ground that the application
was long out of time and there was no justification for the delay. The
Applicant appealed and his renewed application was dismissed by the Court of
Appeal on 30 April 1999. Beldam LJ, giving judgment, with which both of the
other members of the Court agreed said:
"The first question that the Court has to decide is whether in an application
made three years and nine months after the decision was made, the Court should
extend the Applicant's time to seek judicial review in this renewed
application. For my part, I am satisfied that the Court is entitled to look at
the length of the delay and the reasons (if any) advanced for it.
But Miss Foster advanced a further consideration which I consider a powerful
one. She says that the length of the delay in this case is so long that the
documents upon which the decision sought to be challenged is made, are not
readily available and it is quite possible they will not be available.
Secondly, the matter is now so old that recollections may well have faded.
No reasons are given for the delay, save that Mr McDonald submits that the
application would have been premature if made within the ordinary time. Miss
Foster says it would not. Many applications are made in circumstances such as
this, and the course which is then adopted is that the application is adjourned
to await the outcome of the Secretary of State's decision on the application
for asylum.
For my part I am satisfied we ought not to grant an extension of time for the
renewed application for judicial review."
Miss Grey for the Secretary of State says that the present application raises
two issues:
(i) whether a writ of habeas corpus should issue when the applicant has already
sought, and failed by way of judicial review, to challenge the underlying
decision on which the detention is based, namely that the applicant is an
illegal entrant;
(ii) whether the applicant is in fact an illegal entrant.
The starting point is that only a person who is in fact an illegal entrant can
be detained and removed under the procedure provided for by paragraphs 9 and 16
of schedule 2 to the Immigration Act 1971. Mr Blake QC for the Applicant says
this is a matter of precedent or jurisdictional fact to be determined in the
case of challenge by the Court. It is not a question of administrative
discretion reviewable under Wednesbury principles.
It is common ground that an application may be made by the Applicant for a writ
of habeas corpus notwithstanding he has been detained and then bailed. See
Sharpe on Habeas Corpus 2nd edition p165.
It is accepted by the Respondent that, generally, a person detained pursuant to
paragraph 16 (2) of schedule 2 may apply for a writ of habeas corpus if he
asserts he is not an illegal entrant. Where the power to detain is dependant
upon the existence of a particular state of affairs ("a precedent fact") and
the existence of that fact is challenged by or on behalf of the person
detained, a challenge to the detention may be mounted by means of a application
for a writ of habeas corpus even if there are alternative procedures available.
See R -v- Secretary of State for the Home Department ex parte Muboyayi
[1992] 1QB 244, 255. Habeas corpus is the traditional remedy for
challenging the jurisdiction of the executive to interfere with liberty.
Habeas corpus examines the jurisdiction to act or continue to act in a way
interfering with liberty, whereas judicial review examines the legality of an
apparently intra vires discretionary act.
But the position in this case is that the Applicant has already unsuccessfully
tried to attack the precedent fact ( i.e. that he is an illegal entrant) in
judicial review proceedings and the issue is whether in these circumstances he
can try again by the habeas corpus route.
Mr Blake's argument is that habeas corpus, unlike judicial review, is not a
discretionary remedy and furthermore does not have to be made within a certain
time of the decision complained of. Habeas corpus relates to a continuing
interference with liberty and is concerned with the present existence of
jurisdiction to remove the applicant. Where interference with liberty is
purely historic, the remedy is to sue the detaining authority for damages
(subject to the six year limitation period). Also, an administrative decision
to remove and detain may have been valid at the time it was made but may become
invalid as a result of change of circumstance (e.g. the grant of British
citizenship).
The question is, argues Mr Blake, whether there is authority to do what the
immigration service are now doing and propose to do. The writ of habeas
corpus issues as of right, where grounds for it exist. It cannot be refused
on discretionary grounds or because it would be inconvenient. See Sharpe p58.
In the present case the jurisdictional fact on which the decision to remove and
detain is based i.e. that the Applicant is an illegal entrant has not been
examined by the Court to see whether in truth it provides a firm foundation.
In the proceedings before Lightman J and the Court of Appeal the Applicant
sought to do so by way of judicial review but was not permitted to because his
application was so long out of time. Delay is no bar to habeas corpus. Had
the application to Lightman J been for habeas corpus, the Court could not have
refused leave on the ground that the application was out of time, it would have
had to consider and adjudicate upon the lawfulness of the decision that the
Applicant was an illegal entrant.
No Court, argues Mr Blake, has ever adjudicated upon the lawfulness of the
determination on 10 July 1995 that the Applicant was an illegal entrant.
It is necessary for a moment to return to Beldam LJ's judgment. He made it
clear he was disposing of the judicial review application on the ground it was
out of time. He went on to say it was unnecessary to go further. However he
added that he had as it happens looked most carefully at the Secretary of
State's decision based on the immigration officer's decision to treat the
Applicant as an illegal entrant. That decision was justified. The Applicant
had given contradictory reasons for seeking entry in the first place and the
conclusion that he had sought leave to enter on a wholly false basis and in
breach of the immigration laws was wholly justified. The burden of proof was
discharged to a sufficient degree of certainty.
It is Mr Blake's argument that Beldam LJ's observations are nothing to the
point because they formed no part of the Court of Appeal's decision. It is his
case that the Applicant has a right to the issue of the writ of habeas corpus
because there is an unresolved question as to the continuing validity of the
proposed illegal entry removal. Accordingly, it cannot be an abuse of process
to make the present application just because the previous application for
judicial review failed because it was out of time.
There has been some discussion recently about the inter relationship between
habeas corpus and judicial review and the desirability or otherwise of applying
for both remedies. For example in R -v- Manchester Crown Court ex parte
McDonald [1999] 1WLR 832, a custody time limit case, Lord Bingham CJ
said:
"The concurrent application for habeas corpus was wholly unnecessary and served
only to increase costs unnecessarily. It should not have been made."
In a lecture given to the Administrative Law Bar Association on 23 November
1999 Simon Brown LJ said:
"In short, I can think of no circumstances today in which relief obtainable by
habeas corpus would not also be available by judicial review. I believe
therefore that the time has come when instead of having, as presently we do,
two distinct procedures available to challenge the legality of detention - one
resonant with history but old fashioned and thoroughly circumscribed, the other
modern, flexible and all embracing - there should be but one. Judicial review
should prevail and habeas corpus should cease to operate as an independent
process and become instead simply an order for release available within the
review jurisdiction."
A little later he said:
"I readily accept that a power is more likely to be held subject to proof of
precedent fact if its exercise will result in the deprivation of liberty. Such
a holding is in reality a mechanism whereby the Court assumes a more intensive
review jurisdiction and, unsurprisingly that is something it will tend to do in
detention cases. But it does not always adopt that approach. Take for example
the detention and deportation of refused asylum seekers. The House of Lords in
1987 in Bugdaycay (before ever there was any right of appeal in
such cases) held that whether someone is a refugee is a question of fact to be
left to the authorities; it is not a jurisdictional fact. Once a power to
detain is held to depend on precedent fact, then of course anyone
subjected to it can properly invoke habeas corpus. But that is not to say that
habeas corpus must be regarded as available when anyone wants to challenge the
underlying basis of his detention."
Lord Woolf MR, as he then was, considered the relationship and comparison
between habeas corpus and judicial review in R -v- Barking NHS
Trust [1999] 1FLR 106 and concluded by saying at 117:
"I hope in the future it will be possible to make an order of habeas corpus on
an application for judicial review. Until this is possible if both
applications are made again every effort should be made to harmonise the
proceedings. The same affidavit should be used for both sets of proceedings.
At any interlocutory and the final hearing both sets of proceedings should be
before the Court. In the event of an appeal the same notice of appeal will
suffice."
In these circumstances it seems to me regrettable, to say the least, that the
Applicant should be permitted by habeas corpus to attack once again the
decision of the Secretary of State to treat him as an illegal immigrant
notwithstanding his failure in the earlier judicial review proceedings. Before
the Court of Appeal Mr McDonald, who was then acting for the Applicant, argued
that the court's approach, notwithstanding it was a judicial review
application, ought to be the same as or akin to its approach for habeas corpus.
With that approach the Court had no discretion to refuse the remedy if
satisfied the Secretary of State had not discharged the burden to the high
standard required to establish that leave to enter was obtained in the first
place by deception. Accordingly, it cannot be said the Applicant's advisors
did not have habeas corpus in mind when the case was previously before the
Court.
Having read and re-read the judgment of Beldam LJ I am satisfied the reason why
the application for judicial review failed was because it was so long out of
time. But it is also clear that he carefully considered the merits including
Mr McDonald's argument that the approach should be the same as for habeas
corpus. He was satisfied the Secretary of State had discharged the burden on
this basis, albeit his observations were unnecessary for the decision. The
other members of the Court appear to have agreed with Beldam LJ's
observations.
Miss Grey for the Respondent says first that she is entitled to rely on the
decision of the Court of Appeal to justify the decision to detain the
Applicant. Secondly, she says it would be an abuse of process in the
circumstances of this case now to allow a second bite of the cherry by way of
habeas corpus.
The starting point for her first argument is that the Court of Appeal decided
that as between the Applicant and the Respondent the decision of 10 July 1995
was a legal one that could not be challenged. That decision, she contends, is
the answer to the request for the issue of a writ of habeas corpus. The
underlying decision must be treated as a legal one. It is well settled that a
writ of habeas corpus will only be issued where there are proper grounds. Were
a writ now to be issued the High Court would be undermining the decision of the
Court of Appeal. Certainty and finality are essential in litigation. R
-v- Governor of Pentonville Prison ex parte Tarling [1979] 1 WLR 1417,
(see in particular Ralph Gibson LJ at p1422) shows the Court's attitude to
repeated applications for habeas corpus and the position is comparable here.
This is not a case where the Applicant begins to make out an argument on
Ladd -v- Marshall grounds that fresh evidence is now available
that could not have been put before the Court on the judicial review
application.
Miss Grey argues that what is relevant in the present case is the decision of
the Court of Appeal rather than the basis for it. Thus the Applicant might
have lost because he was badly represented or because he failed to appear at
the hearing. What matters is what is on the face of the order, namely that the
application for judicial review was refused. The Court of Appeal has in effect
said that the decision of the Secretary of State (on which the detention is
based) stands. That is enough to justify the detention.
Strictly speaking I do not think the Court of Appeal disposed of the
application for judicial review on the merits, although it seems to me pretty
clear what the decision would have been had it done so. The application was
refused because it was long out of time. Had there been before the Court an
application for habeas corpus delay in itself could not have proved fatal, for
delay is not bar to the issue of a writ of habeas corpus. Accordingly, argues
Mr Blake, the Court of Appeal's decision is nothing to the point. No Court has
ever examined, to the extent of making a decision upon it, the jurisdictional
fact upon which is founded the decision to detain. It seems to me that the
logical extension of Mr Blake's position is that someone in his client's shoes
has an unfettered right to have the Court examine and adjudicate upon that
jurisdictional fact regardless of how long the fact has been treated as
undisputed and regardless of what has occurred in the meantime.
In these circumstances, runs Mr Blake's argument, the Court can now revisit the
basis of the decision to detain with a view to the issue of a writ of habeas
corpus. Mr Blake contends that the decision to detain has never had validity
in the absence of lawful justification for it. The mere disposal of the
judicial review application on the ground that it was out of time does not
clothe the underlying decision that the Applicant is an illegal entrant with a
validity that it does not otherwise have. Whether or not there was and is
lawful justification is something that can only be resolved by examination of
the immigration officer's decision that the Applicant was an illegal entrant
because he obtained entry by deception. The merits of that decision have never
been examined by the Court and must be.
I am unable to accept Mr Blake's argument. In my judgment, the fundamental
reason why this application fails is abuse of process. As Lord Woolf said in
the Barking case, every effort should be made to harmonise
judicial review and habeas corpus proceedings. That seems to me especially
important in a case such as this where both are directed at the same target
and, as Mr McDonald argued before the Court of Appeal the standard of proof on
consideration of the merits is or ought to be the same. There is no reason
whatever why an application for habeas corpus should not have been made before
Lightman J and the Court of Appeal. Any necessary evidence could have been
obtained that time and, as a matter of convenience and expense, everything
should have been dealt with at the one hearing. If the facts of the present
case do not amount to an abuse of process, the consequence seems to me to be
that an unscrupulous applicant will start with judicial review and if that
fails make a second attack on the Immigration Officer's same decision by way of
habeas corpus.
In my judgment the writ of habeas corpus should not issue. The Applicant is an
illegal entrant. That has been affirmed by the Court of Appeal in refusing
permission to attack the basis of the decision. Accordingly the application
must fail.
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MISS GRANGE: My Lord, I appear on behalf of the respondent and I ask for
the Respondent's costs.
MR. BLAKE: My Lord, I cannot resist that. This is a case where
issues of some importance in principle were determined by my Lord. We do
intend to appeal this matter. I think the position is that it is habeus corpus
and not judicial review and I do not need my Lord's permission to appeal.
MR. JUSTICE SCOTT BAKER: If you do, you can have it.
MR. BLAKE: I am much obliged. In respect of costs, ,may I have a
stay on those to be payable until disposal of any appeal?
MR. JUSTICE SCOTT BAKER: Yes, and I thank both sides very much for their
assistance.
© 2000 Crown Copyright
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