R (HRH Sultan of Pahang) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE NICOL |
| Judgment Date | 08 July 2010 |
| Neutral Citation | [2010] EWHC 2024 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2845/10 |
| Date | 08 July 2010 |
[2010] EWHC 2024 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Nicol
CO/2845/10
Mr I Macdonald QC (instructed by Grange Castle Sols) appeared on behalf of the Claimant
Miss K Grange (instructed by Treasury Solicitor) appeared on behalf of the Defendant
This is a renewed application for permission to apply for judicial review of a decision by the Secretary of State in relation to his Royal Highness the Sultan of Pahang. Pahang is one of the nine Sultanates that make up the federation of Malaysia.
The Sultan was keen to visit the United Kingdom and to bring his staff with him. As part of the exercise of enabling that to happen, his solicitors wrote to the Secretary of State asking her to exercise discretionary powers to enable him and his staff to come to the United Kingdom outside the Immigration Rules.
On 2nd December 2009 a letter was written on behalf of the Secretary of State which, amongst other things, said this:
"notwithstanding his status in Malaysia, the Sultan himself is subject to UK immigration control and there can therefore be no compelling case to exempt his staff/entourage."
In essence the claim for judicial review seeks a declaration that, contrary to what the Secretary of State had to say in that letter, the Sultan is indeed exempt from immigration control as are his staff.
The issue has already been litigated in a slightly different context. Members of the entourage of the Sultan were refused entry clearance to come to the United Kingdom and they exercised a right of appeal to the Asylum and Immigration Tribunal. On 11th February 2009 the AIT considered the very similar arguments that are advanced by Mr Macdonald QC on behalf of the claimant today and rejected them.
On behalf of the Secretary of State a preliminary point is taken as to whether it would not now be an abuse of process for those same arguments to be litigated by way of an application for judicial review. On 15th April 2010, Sales J refused permission to apply for judicial review. However he would not have done so on the abuse of process argument.
Before me this morning Miss Grange, on behalf of the Secretary of State, made clear that she would wish, if necessary, to pursue that argument as an objection to the grant of permission. In the event it seemed to be right that I should deal with the substance of the claimant's case and not dismiss the application since at least one judge has considered that that, on its own, would not be a shut out point leading to a refusal of permission.
I therefore turn to whether the argument in its substance is reasonably arguable. Persons who are subject to immigration control are defined by the Immigration Act 1971. Materially to the present case the claimant relies on section 8(3). That is as follows:
"(3) Subject to subsection (3A) below, the provisions of this Act relating to those who are not British Citizens shall not apply to any person so long as he is a member of a mission (within the meaning of the Diplomatic Privileges Act 1964), a person who is a member of the family and forms part of the household of such a member, or a person otherwise entitled within the United Kingdom to the like immunity from jurisdiction as is conferred by that Act on a diplomatic agent."
It is Mr Macdonald's submission that the Sultan is a person "otherwise entitled to the like immunity from jurisdiction as is conferred by that Act on a diplomatic agent".
The State Immunity Act 1978 made a number of changes to the law of State immunity in the United Kingdom. Part I of that Act is concerned with proceedings in the United Kingdom by or against other States. Section 1(1) provides:
"(1)A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act."
Part II of the Act is not relevant to the present matter before the court. Part III is headed " Miscellaneous and Supplementary". The first section of that Part is section 20. So far as material that says this:
"20 Heads of State.
(1)Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to—
(a)a sovereign or other head of State;
(b)members of his family forming part of his household; and
(c)his private servants
as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants.
(2)…
(3)Subject to any direction to the contrary by the Secretary of State, a person on whom immunities and privileges are conferred by virtue of subsection (1) above shall be entitled to the exemption conferred by section 8(3) of the Immigration Act 1971…
(5)This section applies to the sovereign or other head of any State on which immunities and privileges are conferred by Part I of this Act and is without prejudice to the application of that Part to any such sovereign or head of State in his public capacity."
Section 21 then says this:
"A certificate by or on behalf of the Secretary of...
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