Hardeep Singh Sangha v Secretary of state for the home department
| Jurisdiction | Scotland |
| Judgment Date | 02 February 1996 |
| Date | 02 February 1996 |
| Court | Court of Session (Outer House) |
Outer House of the Court of Session
Lord Marnoch
M Bovey for the petitioner
A Dewar for the respondent.
Cases referred to in the judgment:
Mitchell Construction (Scotland) v Brands Transport & Demolition Ltd [1975] SLT (Notes).
R v Diggines ex parte Rahman and orsELR [1985] QB 1109.
R v Chief Constable of the Merseyside Police ex parte CalveleyELRWLRUNK [1986] QB 424: [1986] 2 WLR 144: [1986] 1 All ER 257.
R v Secretary of State for the Home Department ex parte SwatiWLRUNK [1986] 1 WLR 473: [1986] Imm AR 88: [1986] 1 All ER 717.
R v Secretary of State for the Home Department ex parte BugdaycayELR [1987] 1 AC 514: [1987] Imm AR 250.
Halliday v Pattison [1988] SLT 235.
Kirkwood v City of Glasgow District Council [1988] SLT 430.
Secretary of State for the Home Department ex parte Shahib Al-Mehdawi [1990] Imm AR 140.
Tarmac Econowaste Ltd v Assessor for Lothian Region [1991] SLT 77.
Bain v Hugh L S McConnell Ltd [1991] SLT 691.
Spence v Davis [1993] SLT 217.
Sodhi Singh v Secretary of State for the Home Department (unreported, CS, 20 January 1993).
R v Secretary of State for the Home Department ex parte Baljit Singh [1994] Imm AR 42.
R v Secretary of State for the Home Department ex parte Selladurai Jeyakumaran (of 28 June 1985) [1994] Imm AR 45.
Karamjit Singh Chahal v Secretary of State for the Home Department [1994] Imm AR 107.
R v Secretary of State for the Home Department ex parte Pun Yin Choi (CS 6 July 1994) GWD 271593.
Alagon v Secretary of State for the Home Department [1995] SLT 381.
Birungi v Secretary of State for the Home Department [1995] Imm AR 331.
Political asylum refused appeal to special adjudicator withdrawn on representative's advice whether judicial review of refusal appropriate whether representative's alleged poor advice constituted exceptional circumstances whether the merits of the case were to be considered in assessing exceptional circumstances.
Political asylum inability of government to protect its nationals whether temporary absence of satisfactory protection sufficed need to demonstrate the authorities condoned or were complicit in the alleged persecution. Handbook on procedures and criteria for determining refugee status para. 65.
The petitioner was a citizen of India. He was refused asylum by the Secretary of State. He lodged an appeal but on the advice of his representative (UKIAS) the appeal was abandoned. He sought judicial review of the Secretary of State's refusal of asylum. The court considered whether the abandonment of the appeal on what was claimed to be bad advice constituted exceptional circumstances justifying judicial review: it considered whether in assessing exceptional circumstances it should take into account the merits of the substantive case.
Held
1. The petitioner had failed to show any exceptional circumstances that would justify judicial review, on the basis that he had failed to pursue his statutory rights of appeal.
2. The court doubted whether it was right (as had been done in Alagon) to consider the merits of the substantive case when assessing exceptional circumstances.
3. In any event, when the merits of the case were examined, the petitioner's case had no substance.
4. In that regard the petitioner claimed that the authorities were unable to offer him protection against terrorists: however for the petitioner to establish that the terrorists were agents of persecution, he had to show that the authorities condoned or were complicit in their activities, which he had failed to do.
Lord Marnoch: This petition, so far as live, seeks declarator that in refusing the petitioner political asylum the respondent, who is the Secretary of State for the Home Department, erred in law et separatim reached an unreasonable decision. It also seeks reduction of that decision. The case was called before me for a first hearing on 4 January 1996 and following days. The decision in question is contained in a minded to refuse letter dated 26 November 1992 and a formal or final refusal letter dated October 1993. There is, however, this peculiarity in the case, that the petitioner appealed against the decision to the immigration adjudicator but abandoned that appeal towards the end of 1994. He claims that he did so on the advice of a Mr Nabi who, I was told, was a senior, but unqualified, counsellor with the United Kingdom Immigration Advisory Service.
The hearing before me took the form of a debate on the respondent's pleas-in-law to the effect that the petition was both incompetent and irrelevant. While however, I agree that the failure to exhaust an alternative remedy can possibly be seen as raising a question of competency, I also see the force of the opposite argument that, so viewed, it would automatically preclude recourse to judicial review. That was not, as it happens, the position adopted on either side of the Bar. In the circumstances, therefore, I prefer to view the matter,as, I think, did counsel for the respondent,as being more properly one of relevancy. Counsel for the respondent also argued that the petitioner's averments as to the merits or substance of the claim for declarator were in any event irrelevant.
As regards the abandonment of the appeal to the immigration adjudicator, parties were agreed that exceptional circumstances had to be shown before the failure to pursue an alternative statutory remedy could be excused. There was, however, an important question between them as to what might amount to exceptional circumstances and I was accordingly treated to a fairly extensive citation of authority on that subject. In England the position seems to be well summed up by the following dictum of Sir John Donaldson MR in R v Secretary of State for the Home Department ex parte SwatiUNK [1986] 1 All ER 717 at the bottom of p 723:
it is well established that, in giving or refusing leave to apply for judicial review, account must be taken of alternative remedies available to the applicant. This aspect was considered by this court very recently in R v Chief Constable of the Merseyside Police ex parte CalveleyUNKWLR [1986] 1 All ER 257, [1986] 2 WLR 144 and it was held that the jurisdiction would not be exercised where there was an alternative remedy by way of appeal, save in exceptional circumstances. By definition, exceptional circumstances defy definition, but, where Parliament provides an appeal procedure, judicial review will have no place unless the applicant can distinguish his case from the type of case for which the appeal procedure was provided.
The case referred to in that dictum, viz R v Chief Constable of the Merseyside Police ex parte Calveley was a case in which the delay had been such that the statutory appeal was considered inappropriate.
So far as Scotland is concerned, the relevant authorities up to 1990 were conveniently reviewed by Lord Clyde in Tarmac Econowaste Ltd v Assessor for Lothian Region [1991] SLT 77. In all the cases reviewed it seems that the exceptional or special circumstances envisaged by the court were of a procedural nature or, at all events, were special to the failure to pursue the statutory remedy. The next case cited, in chronological order, was Bain v Hugh L S McConnell Ltd [1991] SLT 691 which was a decision of the Second Division relative to the reduction of a Sheriff Court Decree. There was no dispute but that the Decree in question was ultra vires and that at one point...
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