Hussain v Secretary of State for the Home Department and Others

JurisdictionEngland & Wales
JudgeMR JUSTICE MUNBY,LORD JUSTICE LATHAM
Judgment Date26 June 2001
Neutral Citation[2001] EWHC 555 (Admin)
Docket NumberNO: CO/718/01
CourtQueen's Bench Division (Administrative Court)
Date26 June 2001

[2001] EWHC 555 (Admin)

IN THE HIGH COURT OF JUSTICE

DIVISIONAL COURT

QUEEN'S BENCH DIVISION

Before:

Lord Justice Latham and

Mr Justice Munby

NO: CO/718/01

The Queen on the Application of Hussain
and
The Secretary of State for the Home Department & Others

MR A BLAKE (instructed by Malik Law Solicitors, Cheetham Hill Chambers, 577-579 Cheetham Hill Road, Manchester M8 9JE) appeared on behalf of the Claimant

MISS L GIOVANNETTI (instructed by the Treasury Soliticor) appeared on behalf of the Defendant

MR JUSTICE MUNBY
1

Majid Hussain is a national of Pakistan. He arrived in Manchester Airport on 19th March 1998 and entered the United Kingdom using a British passport in the name of Carl Majid Ali, to which he was not entitled. Being questioned by immigration officers at the airport he maintained the passport was his.

2

On 7th May 1998 he was arrested on suspicion of being an illegal entrant. He was taken to a police station and questioned. He remained adamant that he was Carl Majid Ali. He gave an entirely false account of his parentage, childhood, and education. Interviewed again later that evening, in the presence of another duty solicitor, he admitted his true identity and claimed asylum.

3

The Secretary of State refused the asylum claim by letter dated 23rd November 1999. The claimant's appeal to a Special Adjudicator was dismissed by a determination promulgated on 27th November 2000. In the course of a determination which was in many ways sympathetic towards the plight of the claimant, and which accepted much of his evidence as to the torture he had endured in Pakistan, the Special Adjudicator said:

"It is clear that, following the release from police detention some time in March or April 1997, the Appellant fled to Mirpur City. He did not travel to the United Kingdom until March 1998. He thus remained in Pakistan for something like ten or eleven months, and by his account had no trouble from the authorities nor from anybody else during that period of time.

It is clear, from the information provided by the Home Office in connection with the passport application that was made in respect of Carl Majid, that this application was made in January 1997 at a time when the Muslim League were not in power. The elections which brought them to power did not take place until February 1997. The passport was obviously issued after the elections. Quite clearly, members of the PPP, in collaboration with the Appellant (that is his account), obtained a false document, that is this passport, to enable him to travel."

4

A little later the Special Adjudicator continued:

"The immigration authorities at Manchester Airport were clearly suspicious about the document. They challenged the Appellant. That was the time, in my view, for him to admit to the truth, declare that he was not Carl Majid, state his true identity and claim asylum. He did nothing of the kind. In his oral evidence before me he said it was because his mind was not working properly. That is not what he said at interview, as I have already indicated. I do not believe his oral testimony. I believe that he knew perfectly well that he could claim asylum on entry and that he chose not to do so, but instead 'bluffed it out'. The bluff was successful."

5

The Special Adjudicator nonetheless recommended that the claimant be granted exceptional leave to remain for one year in order to obtain treatment for mental health problems.

6

The Immigration Appeal Tribunal refused leave to appeal by a determination notified on 3rd January 2001. It had before it grounds of appeal which set out in seven numbered paragraphs the specific grounds of appeal sought to be ventilated before it.

7

Meanwhile, the claimant had been charged with various criminal offences in relation to his entry into the United Kingdom using a false passport. That prosecution, it is right to note, was commenced before the decision of this court in ex parte Adimi on 29th July 1999.

8

Previously, on 25th June 1999, the claimant's solicitors had invited the CPS to discontinue the prosecution on grounds of the claimant's ill-health. On 19th August 1999 they further requested that the prosecution be discontinued on the basis of the decision in ex parte Adimi. Notwithstanding those requests, and a further request apparently made on 6th February 2001, based again on grounds of the claimants' ill-health, the CPS has decided that the prosecution should continue. The trial has now been fixed for September 2001. On 2nd February 2001 the claimant asked the Secretary of State to refer his case back to the Immigration Appellate Authority under section 21 of the Immigration Act 1971.

9

On paper the claimant sought permission to apply for judicial review of four decisions. First, the decision of the Tribunal refusing leave to appeal the Special Adjudicator's determination. Secondly, the Secretary of State's failure to refer the matter back to the appellate authority under section 21 of the 1971 Act. Thirdly, the failure of the Secretary of State to grant the claimant exceptional leave to remain. Fourthly, the CPS's decision to proceed with the prosecution of the claimant in relation to his illegal entry.

10

Mr Arthur Blake, who appears today on behalf of the claimant, and to whose interesting and, if I may say so, ingenious arguments I am much indebted, has expressly, and in my judgment wholly properly, abandoned the second and third of those four claims. I turn, accordingly, to the claim for permission to apply for judicial review of the decision of the Tribunal refusing leave to appeal.

11

In Puspalatha Sullivan J at paragraph 48 said this:

"The challenge is a challenge to the decision of the Immigration Appeal Tribunal to refuse leave. The question is not whether on the merits I consider that it would have been appropriate to grant leave. The expert tribunal is the Immigration Appeal Tribunal. The claimant has to show that the tribunal erred in law in refusing leave. Save in cases where the error of law on the part of the special adjudicator should have been plain and obvious, the Immigration Appeal Tribunal is not obliged to root around for alternative ways of putting grounds of appeal. It is obliged to consider the grounds of appeal as they are presented to it."

12

With respect, I entirely agree with and would wish to endorse those observations of Sullivan J.

13

Earlier, in the Tribunal's starred decision in Slimani on 21st December 2000, the President of the Tribunal, Sir Andrew Collins, had said this:

"In deciding whether or not to grant leave to appeal, the tribunal will consider the adjudicator's determination and the reasons given by him or her. It will recognise the need for most careful scrutiny of any asylum claim but will also, as an expert tribunal, have regard to the evidence put before the adjudicator (and before it if there is any additional evidence which can properly be considered within the Rules). If it decides that, whatever shortcomings there may have been in the adjudicator's determination, there is no real prospect of success, it will refuse leave. All too often, when applications for judicial review are made, the claimant and the judge concentrate on the adjudicator's reasons. Where the tribunal has not assisted by adopting a formulaic approach to its reasons for refusing leave, such a concentration is not only understandable but inevitable and the tribunal has only itself to blame. But where the tribunal has obviously considered the grounds and the appeal, such an approach is with respect less appropriate. In particular, the tribunal expresses the hope that in every case the judge should ask himself whether any arguable error of law may have vitiated the tribunal's conclusion that there was no real prospect of success in any particular appeal and only grant permission if that is the position."

14

I respectfully agree with the views there expressed by Sir Andrew Collins and endorse them as indicating the correct approach to be adopted both in this court and by judges sitting in the Administrative Court to the determination of an application such as is before us today.

15

In my judgment, the decision of the Tribunal in this case contains no arguable error of law. Its decision that there was no real prospect of success in the proposed appeal was not merely a decision which, in my judgment, it was open to the Tribunal to arrive at, but almost inevitable.

16

This, as my Lord has already observed, is a case in which the Tribunal went significantly further than providing us with merely formulaic reasons. In paragraph 3 of its...

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