Accidental Loss of an Asylum Seeker

DOIhttp://doi.org/10.1111/j.1468-2230.1994.tb01963.x
Publication Date01 Jul 1994
AuthorCarol Harlow
CASES
Accidental
Loss
of
an Asylum Seeker
Carol
Harlow
*
M, a national of Zaire, arrives at Heathrow. He claims asylum. His application is
refused. His removal is set for 1 May 1991. An unsuccessful application for
judicial review is made and set down for hearing by the Court of Appeal on 1 May
1991. M’s friends, believing that he has a stronger case, call in specialist
immigration solicitors Winstanley-Burgess who, just thirty minutes before take-off
of his plane from Heathrow, make a fresh application to a duty judge (Garland
J)
in chambers. The judge asks for the ‘usual undertaking’ to defer removal. Officials
believe there is no formal undertaking in place. They lamentably fail
to
have M
removed from the flight at Heathrow. They refrain from interrupting the flight at
Paris. They do not order his immediate return from Kinshasha. M’s
representatives obtain a mandatory order from the duty judge to return M within
the jurisdiction. The Home Secretary, acting on hasty advice from Treasury
Counsel that the mandatory order might be invalid, decides to leave matters where
they stand. The Home Office applies successfully to a Crown list judge (Simon
Brown
J)
for the order to be set aside. M vanishes and cannot be traced. M’s
lawyers institute proceedings for contempt of court.
This is not, as the reader may sup ose, the plot of a black farce by Dario
Fo’
but the facts of
M
v
Home
O&3ce,pa recent leading case which received the
accolade of distinguished public lawyers as the ‘most important case in
constitutional law for the last
200
years or m~re.’~ Perhaps tactfully, the
judiciary chose not to highlight the facts. Only in the restrained reminder that
‘circumstances can occur where it is in the interest both of a person who is subject
to powers of government and of the government itself that the courts should be in a
position to make an order which clearly sets out either what should or what should
not be done by g~vernment,’~ was a hint given of conduct which might justify the
preference of Lord Woolf, who gave the leading judgment in the House of Lords
for a mandatory model of judicial review, defined in terms of coercion rather than
of ‘trust and co-operation’ between courts and exe~utive.~ Instead, the House of
Lords, discerning a possible affront to the dignity of the courts, moved decisively
on
to the constitutional high ground, invoking the full force of Dicey’s statement
of
the rule
of
law principle.6
*Professor of Public Law, London School of Economics
1
2
3
Especially Dario
Fo,
Accidental Death
of
an Anarchist
(London: Methuen, 1987).
M
v
Home
Office
[I9921 QB 270 (CA); [1993] 3 WLR 433 (HL(E)).
Sir William Wade, ‘The Crown
-
Old Platitudes and New Heresies’
(18
September
1992)
NU,
p 1275, commenting on the Court of Appeal judgments; Michael Beloff QC and Professor Rodney
Brazier, quoted in
The
Guardian,
28 July 1993.
At p 447. See also Simon Brown
J
[I9921
2
WLR 79; Lord Donaldson MR, at p
80.
Contrast the
opinion of Lord Scarman
in
R
v
Inland Revenue Commissioners,
ex
p
Rossminster
[
19801 AC 952,
1027.
Introduction
to
the
Law
ofthe
Constirution
(London: Macmillan, 10th ed by E.C.S. Wade, 1959)
pp 193-
194.
Placed at the forefront of the applicant’s argument by Sydney Kentridge QC and
adopted and cited by
Lord
Woolf at 119931 3
WLR
449.
4
[I9931 3 WLR 445.
5
6
620
0
The Modern Law Review Limited
1994
(MLR
57:4,
July).
Published by Blackwell Publishers,
I08
Cowley Road, Oxford
OX4
IJF
and
238
Main Street, Cambridge, MA
02142,
USA.

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