Davendranath Doorga v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 23 October 1989 |
| Date | 23 October 1989 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Lord Donaldson MR Woolf, Beldam LJJ
P Engelman for the appellant
R Jay for the respondent
Cases referred to in the judgments:
Taj Mohd Swati v Secretary of State for the Home DepartmentWLR [1986] 1 WLR 477: [1986] Imm AR 88.
R v Secretary of State for the Home Department ex parte Hindjou [1989] Imm AR 24.
R v Secretary of State for the Home Department ex parte Doorga (unreported, QBD, 13 March 1989).
Refusal of leave to enter — student — arrival in United Kingdom without entry clearance — prima facie a genuine student — whether judicial review the proper remedy against refusal of leave by immigration officer — whether, following Swati, judicial review not appropriate — the restricted ambit of review on Wednesbury principles. Immigration Act 1971 s. 13(2).
Judicial review — the proper approach where, on an ex parte application the judge is uncertain whether leave should be granted — the need for consistency in approach — the need to take account of the intentions of Parliament in establishing the immigration appellate authorities — Hindjou considered. Immigration Act 1971 s. 13(2).
Appeal from McCowan J. The appellant was a citizen of Mauritius who arrived in the United Kingdom without entry clearance and was refused leave to enter: the immigration officer was not satisfied that he was a genuine student who would leave the United Kingdom at the end of his studies. The appellant had various documents with him which might prima facie have suggested he was a genuine student. He was given leave to move for judicial review but in the end his ex parte leave was set aside or his application was dismissed (the Court of Appeal did not decide which alternative had occurred, the point being immaterial). He appealed, or made a renewed application.
The Court considered the application in the light of the principles laid down in Swati and reviewed the consequences of the approach adopted in ex parte Hindjou.
Held
1. It might be that the immigration officer had been wrong to refuse leave, but there was nothing in the evidence to show that the decision was unreasonable on Wednesbury principles. The case did not fall within the exceptions to which reference was made in Swati. The application, or appeal, would be dismissed.
2. The proper remedy for the appellant was to appeal to an adjudicator. The Court accepted that that involved the appellant's first leaving the United Kingdom, which might be a hardship. The Court however did not make the rules. ‘It is part of the policy approved by Parliament and it would be wrong for us to get round it by granting leave.’
3. Per Woolf LJ: the Court was bound to take into account the clear policy that Parliament had laid down. To grant leave as a matter of course in this ‘sort of case…would be acting inconsistently with that policy…laid down by Parliament.’ The consequences of granting leave in ex parte Hindjou illustrated ‘the importance of a consistent approach being adopted to the Swati decision and, in the absence of exceptional circumstances…the court should not grant leave in cases of this sort.’
4. The Court reiterated its guidance to judges at first instance where they were faced with ex parte applications for judicial review and, on the evidence before them, were uncertain whether leave should be granted.
The Master of the Rolls: This is either an application for leave to apeal from a decision of Paul Kennedy J or, alternatively, it is a renewed application for leave to move for judicial review. Although Mr Engelman was prepared to give us every assistance in deciding which it was, it did not seem to me that that was a useful exercise since the result would be the same either way. Accordingly, we have not gone into it.
The facts are these. The applicant is a Mauritian...
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