R (Sezek) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON |
| Judgment Date | 25 May 2001 |
| Neutral Citation | [2001] EWCA Civ 795 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 2001 |
| Docket Number | Case No: QBACF/2001/0052/C |
[2001] EWCA Civ 795
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Ouseley J.
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Gibson
Lord Justice Buxton and
lord Justice Jonathan Parker
Case No: QBACF/2001/0052/C
Miss Lisa Giovanetti (instructed by the Treasury Solicitor for the Respondent)
Mr. Malcolm Bishop Q.C. and Mr. Osama Daneshayer (instructed by Messrs T. Osmani and Co. of London E11 for the Appellant)
(giving the judgment of the court):
This is a renewed application for bail pending the hearing fixed for 3 July of an appeal by the applicant, Mehmet Sezek, from the decision of Ouseley J. dismissing Mr. Sezek's application for judicial review. By that application Mr. Sezek challenged a decision of the Secretary of State refusing to revoke a deportation order made against him. We have thought it right to sit as a full court of three Lord Justices because of our concerns over jurisdiction on such a bail application.
The background facts, shortly stated, are these. Mr. Sezek is a Turkish national. On 2 July 1976 he was admitted to the United Kingdom as a visitor. On 11 July 1983 he was granted indefinite leave to remain. He has worked in the restaurant business either as a proprietor or as a waiter. He is married and has an adult son and daughter. He and his wife are owners in equal shares of a house in Enfield, subject to a mortgage, and have been for 20 years. His son has British nationality by birth. His wife and daughter applied for, and were granted, British nationality in 1991. Mr. Sezek also applied for British nationality at that time. But his application was refused because he failed to disclose that on 2 October 1985 he was convicted of driving while disqualified and of driving without insurance. On 24 March 1994 Mr. Sezek was convicted of smuggling 34 kilograms of heroin and sentenced to 16 years' imprisonment. No recommendation for deportation was made by the Crown Court. But on 9 November 1994 the Secretary of State signed a notice that he was minded to deport Mr. Sezek pursuant to the Immigration Act 1971 ("the Act") on the basis that his continued presence in the United Kingdom was not conducive to the public good. That notice was served on Mr. Sezek on 31 January 1995. He appealed to the Immigration Appeal Tribunal, but on 31 January 1996 his appeal was dismissed. Leave to appeal was refused by that Tribunal and subsequently by this court.
A deportation order was made on 22 April 1999. This included authorisation for Mr. Sezek to be detained pursuant to para. 2(3) of Sch 3 to the Act. That order was served on him on 18 May 1999. Representations were made on his behalf that the deportation order should be revoked. But by the decision dated 27 October 1999 which is the subject of the judicial review proceedings the Secretary of State refused to revoke the deportation order. Permission to move for judicial review was granted by Harrison J. on 26 September 2000, but at the substantive hearing Ouseley J. on 21 December dismissed Mr. Sezek's application and refused permission to appeal. Permission was however given by this court (Mantell L.J.) but limited to a single point.
By an early release decision dated 27 March 2001 notice was given that Mr. Sezek, who was then in an open prison, should be released on licence and deported on 4 April. But he was not deported because of his pending appeal to this court. Since 4 April he has been detained under para. 2(3) in a high security prison. He applied to an adjudicator for bail but that was refused on 17 April. The adjudicator has no jurisdiction to grant bail in para 2(3) cases. Mr. Sezek then applied to this court for bail, but that was refused on paper by Buxton L.J.
On this renewed application we were concerned as to whether this court had jurisdiction to grant bail. The Bail Act 1976 is only expressed to apply to criminal cases, and Mr. Sezek is detained under the Act, not by reason of his criminal sentence in 1994. The question of bail did not arise before Ouseley J. so that this court must exercise an original jurisdiction if it is to accede to the application. Mr. Sezek's real complaint is with the decision of the Secretary of State to detain him under para. 2 (3). That decision has not been challenged by judicial review. It is not in dispute that when a person is detained under para. 2 (3), that detention can be challenged by a habeas corpus application. But there has been no such application. Instead Mr. Sezek has opted for an application for bail, his counsel, Mr. Bishop Q.C., arguing that the principles of the Bail Act should apply by analogy. Thus he submits that by analogy with s. 4 of that Act, Mr. Sezek must be granted bail unless his case comes within an exception in Sch. 1 to that Act. The most relevant exception would appear to be that in para. 2 (a), viz. "if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would -
(a) fail to surrender to custody."
The Secretary of State through his counsel, Miss Giovanetti, accepts that this court has power to accede to an application for bail in these circumstances. Moreover, she has drawn our attention to two authorities in each of which the acceptance by the Secretary of State that there was power for this court to grant bail was supported by this court.
In R. v Secretary of State for the Home Department, ex p. Turkoglu [1988] Q.B. 398 an immigrant, who had been refused judicial review by the High Court, applied for bail pending an appeal. But that application was also refused by the High Court judge. The immigrant appealed. The Secretary of State invited this court to grant bail, on the footing that the court could, in so doing, impose a condition of sureties which the Secretary of State has no power to do under the Act. Sir John Donaldson M.R., with whom Croom-Johnson and Bingham L.JJ. agreed, said that that raised the whole question of the power of courts to grant bail in immigration cases. He reviewed earlier authorities, including R. v Secretary of State for the Home Department, ex p. Swati [1986] 1 W.L.R. 477, in which he had said (obiter) at pp. 485 6 that there was an inherent jurisdiction to grant bail but that in the light of the statutory powers available to the Secretary of State and to adjudicators it would only be in exceptional cases that it should be exercised and only if leave to apply for judicial review had been granted. The Master of the Rolls, in Turkoglu at p. 400, said that bail was to be regarded in civil proceedings, as in criminal proceedings, as ancillary to some other proceedings. He said at p. 401 that the High Court if seised of proceedings could grant or refuse bail. He continued:
"As far as the Court of Appeal is concerned, it has jurisdiction to entertain a direct appeal against any refusal or grant of bail by the High Court in whatever proceedings it is made, that right and duty coming straight from section 16 of the [Supreme Court Act 1981]. In addition, it has inherent jurisdiction to grant bail in proceedings originating in this court, which in practice means on a renewed application for leave to apply for judicial review, or, of course, if this court went on to hear the substantive application."
The present case does not fall precisely within the circumstances envisaged by the Master of the Rolls since he appears to have had in mind the original jurisdiction then exercised by this court under R.S.C. O.59 r.14(3). However, it is highly likely that he would have seen the same approach as applying to a case such as the present, where the underlying proceedings are an appeal rather than an original application.
The second case to which Miss Giovanetti referred was Vilvarajah v Secretary of State for the Home Department [1987] Imm. A.R. 457. In that case two asylum seekers were refused leave to enter the United Kingdom. In proceedings for judicial review they obtained the quashing of that refusal, but were detained pending the examination of their claims to be refugees. They applied to this court for bail. At p. 459 Sir John Donaldson M.R. noted that the Secretary of State accepted that there was jurisdiction in the court to grant bail. He drew a distinction between the time when a person was being detained pending examination of his case and the time when a person was being detained following a decision that he be required to leave the country. The Master of the Rolls, with whom Neill and Ralph Gibson L.JJ. agreed, said at p. 459:
"In cases where the adjudicator has no...
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