R v Secretary of State for the Home Department, ex parte Cheblak
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BELDAM,LORD JUSTICE NOLAN |
| Judgment Date | 06 February 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0206-4 |
| Docket Number | 91/0074 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 February 1991 |
And In the Matter of an Application for a Writ of Habeas Corpus ad Subjiciendum
[1991] EWCA Civ J0206-4
The Master of The Rolls
(Lord Donaldson)
Lord Justice Beldam
Lord Justice Nolan
91/0074
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(MR. JUSTICE SIMON BROWN)
Royal Courts of Justice
MR. EUGENE COTRAN, MR. ALPER RIZA and MR. M. MASSIH (instructed by Messrs. Jane Coker & Co.) appeared for the Applicant.
MR. JOHN LAWS and MISS ALISON FOSTER (instructed by The Treasury Solicitor) appeared for the Respondent.
In this case Mr. Cheblak, who is a citizen of the Lebanon, seeks the assistance of this court in two wholly different, but interrelated, ways. First, he appeals against the refusal by Mr. Justice Simon Brown on 23rd January 1991 to issue a writ of habeas corpus directed to the governor of the prison in which Mr. Cheblak is at present confined and requiring him to bring Mr. Cheblak to court with a view to his being freed from confinement. Second, he renews a parallel application which he made unsuccessfully to Mr. Justice Simon Brown on the same occasion seeking leave to bring proceedings for judicial review of a decision of the Secretary of State for the Home Department to serve notice of intended deportation upon Mr. Cheblak.
At the conclusion of the hearing we announced our intention to dismiss the appeal and to refuse leave to apply for judicial review, indicating that we would put our reasons into writing and hand them down as soon as possible. This we now do.
This appeal and application—and there have been and no doubt will be others—arise out of the circumstances that British forces are now engaged in hostilities in the Gulf in support of United Nations resolutions. It is important that the public should know, and be in no doubt, that the existence of such hostilities has no effect whatsoever upon the administration of justice in this country. Unless and until Parliament alters the law, which it has not done, the courts will continue to approach such appeals and applications in precisely the same way as they would have done before those hostilities began. To assert, as has been asserted outside court in the context of this particular case, that "British justice must now figure among the casualties of the Gulf war" is simply untrue. Whatever criticisms may be levelled at British justice, they could just as forcefully have been made before the outbreak of hostilities as after, because there has been no change whatsoever.
Habeas corpus is probably the oldest of the prerogative writs. Authorising its issue in appropriate cases is regarded by all judges as their first duty, because we have all been brought up to believe, and do believe, that the liberty of the citizen under the law is the most fundamental of all freedoms. Consistently with this, an application for a writ of habeas corpus has virtually absolute priority over all other court business. When Mr. Cheblak gave notice of appeal, this court at once made room in the lists for it to be heard with the greatest possible speed. We were therefore somewhat surprised to be told that Mr. Cheblak preferred that matters should proceed at a more leisurely pace. There could be no question of his legal representatives not being ready, since the matter had already been fully argued before Mr. Justice Simon Brown and in the case of Mr. and Mrs. B. heard in the Divisional Court on 25th January 1991. If, as he alleged, Mr. Cheblak was being detained without lawful justification, not a minute should have been lost in freeing him from that detention. Accordingly we were only prepared to agree to a short postponement of the hearing.
Although, as I have said, the two forms of relief which Mr. Cheblak seeks are interrelated on the facts of his case, they are essentially different:—
A writ of habeas corpus will issue where someone is detained without any authority or the purported authority is beyond the powers of the person authorising the detention and so is unlawful.
The remedy of judicial review is available where the decision or action sought to be impugned is within the powers of the person taking it but, due to procedural error, a misappreciation of the law, a failure to take account of relevant matters, a taking account of irrelevant matters or the fundamental unreasonableness of the decision or action, it should never have been taken. In such a case the decision or action is lawful, unless and until it is set aside by a court of competent jurisdiction. In the case of detention, if the warrant, or the underlying decision to deport, were set aside but the detention continued, a writ of habeas corpus would issue.
The facts
Mr. Cheblak is aged 47, having been born in Haifa on 6th January 1944. At the age of four he left Palestine for the Lebanon where he spent his school days. In 1966 he moved to Cairo where he attended the University for three years, achieving the degrees of LL.B. and LL.M. He is therefore a man of considerable academic achievements. From 1968 to 1971 he was employed as a lecturer in public law and political theory at the Constantine University, Algeria. From 1971 to 1975 he earned his living in Beirut as a freelance writer and journalist, but moved to this country when civil war broke out in the Lebanon.
He first arrived in the United Kingdom on 5th March 1975 as a visitor, but subsequently was granted leave to remain as a student and journalist. During the next ten years he studied for the degree of M. Phil, and undertook work for an Arabic newspaper published in London and owned by Saudi Arabians. He also wrote a report for the International Labour Office in Geneva. During this period, in 1976, he married Farihan, who was a Palestinian. The wedding was in London. In 1980 their son was born. He is now 10. In 1985 their daughter was born. She is now six. Also in 1985 he joined the Arab League Office in London as a senior research and information officer, a post he still holds. The League is an international organisation whose head of mission in London holds diplomatic status. In June 1987 he was granted indefinite leave to remain in this country. He, his wife and children live in North London in a house which they own. Although at present he holds a Lebanese passport, he has applied to become a naturalised British citizen and says that he regards this country as his only home. That naturalisation application is still under consideration. His relations have all left the Lebanon, but we have not been told where they are now living.
Since his arrival in this country he has travelled to Egypt, Algeria, Tunisia, Iraq, Canada, the U.S.A. (for which he says that he holds a multiple entry visa valid until 1994) and Western Europe in connection with his work or to see members of his family. The visit to Iraq was in 1979 and lasted for three weeks, one of which was spent in hospital suffering from appendicitis. The purpose of the visit was to carry out research for a dissertation which was subsequently published in England under the title "The lure of Zion". This, it would appear, is an academic work concerned with Iraqi Jews during the 1950's. Mr. Cheblak says that it was well reviewed and was described by the Jerusalem Post as "a most honest and well documented book". He has also written under the "nom de plume" of Abbas Murad, but has never used this as an alias.
Mr. Cheblak has told the court that he is a pacifist who is totally opposed to armed struggle and is known to hold such views. His many and varied writings and speaking engagements have been directed to encouraging and supporting peace, particularly in the Middle East. In December 1990 he was a co-signatory of a statement calling for an Iraqi withdrawal from Kuwait, co-ordinated by the United Nations, which led to his being criticised by other Palestinians because it did not call for a simultaneous co-ordinated withdrawal by United States and British forces. Other signatories included Kuwaiti intellectuals. He totally repudiates any suggestion that he has sympathy for or would wish to support Saddam Hussein and his policies either personally or politically. He says "I could not be described however remotely as being a supporter even in theory, let alone in practice, of terrorism in any form whatsoever".
Assuming the truth of these assertions, and I have no means of evaluating them, it must have been an appalling shock to be arrested and served with notice of intention to make a deportation order at his home late on the evening of 17th January 1991, the day after hostilities began in the Gulf. He was taken to Willesden Police Station. Next day he was moved to Pentonville Prison and later to a prison in York.
The notice of intention to deport was in the following terms:—
"The Secretary of State has decided that your departure from the United Kingdom would be conducive to the public good for reasons of national security. Accordingly he has decided to make a deportation order against you by virtue of section 3 (5) (b) of the Immigration Act 1971 requiring you to leave the United Kingdom and prohibiting you from returning while the order remains in force.
By virtue of section 15 (3) of the Act, you are not entitled to appeal against the decision to make the deportation order but, if you wish, you may make representations to an independent advisory panel. You will be allowed to appear before the panel if you wish to do so but may not be represented. To such an extent as...
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