R v Secretary of State for the Home Department ex parte Bugdaycay

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Templeman,Lord Griffiths,Lord Goff of Chieveley
Judgment Date19 Feb 1987
Judgment citation (vLex)[1987] UKHL J0219-2

[1987] UKHL J0219-1

House of Lords

Lord Bridge of Harwich

Lord Brandon of Oakbrook

Lord Templeman

Lord Griffiths

Lord Goff of Chieveley

Bugdacay (A.P.)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
Nelidow-Santis (A.P.)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
Norman (A.P.)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
Consolidated Appeals
In Re Musisi (A.P.)
Lord Bridge of Harwich

My Lords,

1

These four appeals were heard together by consent of all parties. All are concerned with questions as to the treatment in domestic law of those who claim to be refugees under the Geneva Convention (1951) and Protocol (1957) relating to the Status of Refugees ("the Convention"). The background material in the Immigration Act 1971 ("the Act"), the rules made thereunder and the Convention itself is common to all four appeals. The issues which arise in the first three appeals are identical. The issues raised in the appeal of Musisi overlap to some extent with the issues in the first three appeals. The appeal of Musisi, however, raises difficult and entirely distinct issues which will require examination in some detail of the facts peculiar to that case. At the outset it will be convenient to give a brief outline of the facts so far as necessary for the proper examination of the common issues.

2

The first three appellants separately obtained leave to enter the United Kingdom under the Act. Bugdaycay was granted leave to enter as a student, Santis as a holiday visitor, Norman as a business visitor. In due course each claimed to be entitled to asylum in this country as a refugee from his country of origin. The claim in the case of Santis was made before the expiry of his temporary leave to enter, but the other two only made their claims after the expiry of their leave to enter and after they had been arrested as overstayers. The Secretary of State refused each of the claims to asylum and directions were given in each case for the removal of the appellant as an illegal entrant pursuant to paragraph 9 of Schedule 2 to the Act. Each applied for judicial review. The applications of Bugdaycay and Santis were refused by Taylor J., that of Norman by Woolf J. Their appeals were heard together by the Court of Appeal (Oliver, Neill and Balcombe L.JJ) and dismissed. A fuller account of the facts which I have very briefly summarised will be found in the judgment of Neill L.J. [1986] 1 W.L.R. 155, 157-158. The appellants now appeal by leave of your Lordships' House.

3

The appellant Musisi applied for leave to enter as a visitor from Kenya. Pending a decision upon that application he was temporarily admitted to the United Kingdom pursuant to paragraph 21 of Schedule 2 to the Act. His application for leave to enter was refused, but he thereupon immediately applied for asylum as a refugee from Uganda. His temporary admission was extended indefinitely pending consideration of that application. I shall later have to examine the history of his case in detail but at this stage it suffices to say that a final decision was made refusing him leave to enter and directions were given for his removal and return to Kenya in January 1984. His application for judicial review was refused by Mann J. and his appeal against that refusal was dismissed by the Court of Appeal (Watkins, Purchas and Dillon L.JJ). He too now appeals by leave of your Lordships' House.

4

This is the first time your Lordships' House has had to consider the Convention. The questions arising from its impact on domestic law are of undoubted importance both to those claiming refugee status and to the authorities responsible for the operation of the system for the control of immigration established by the Act and rules made thereunder.

5

The relevant definition of "refugee" in the Convention is "any person who … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country." The provisions in the Convention of primary importance are the following:

"Article 32

1. The contracting states shall not expel a refugee lawfully in their territory save on grounds of national security or public order."

"Article 33

1. No contracting state shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or politicial opinion."

6

The relevant rules laid down by the Secretary of State pursuant to section 3(2) of the Act "as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter" are found in the Statement of Changes in Immigration Rules (1983) (HC169). The rules are divided into two sections: Section One, Control on Entry; Section Two, Control after Entry. Paragraph 16 in Section One and paragraph 96 in Section Two, each headed "Refugees," are in identical terms as follows:

"Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees (Cmd. 9171 and Cmnd. 3096). Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments."

7

The paragraphs headed "Asylum" in Sections One and Two are respectively paragraphs 73 and 134 and provide as follows:

"73. Special considerations arise where the only country to which a person could be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or politicial opinion. Any case in which it appears to the immigration officer as a result of a claim or information given by the person seeking entry at a port that he might fall within the terms of this provision is to be referred to the Home Ofice for decision regardless of any grounds set out in any provision of these rules which may appear to justify refusal of leave to enter. Leave to enter will not be refused if removal would be contrary to the provisions of the Convention and Protocol relating to the Status of Refugees.

134. A person may apply for asylum in the United Kingdom on the ground that, if he were required to leave, he would have to go to a country to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any such claim is to be carefully considered in the light of all the relevant circumstances."

8

The primary submission made on behalf of the first three appellants is that the immigration rules prohibit their removal and return to their own countries whence they came unless and until the courts have adjudicated upon and rejected their claim to be refugees from those countries. The argument proceeds by stages. Each claims to be a refugee from the country of his nationality. To return him to that country, therefore, would contravene Article 33.1 of the Convention. Paragraph 73 of HC169 prohibits removal contrary to the provisions of the Convention. It follows, so it is said, that the Secretary of State cannot give himself power to make a decision leading to a person's removal contrary to the rules by finding as a fact that he is not a refugee, if in truth he is. The conclusion, it is submitted, is that, if the Secretary of State has purported to make such a decision, the court, on an application for judicial review, is not confined to considering whether there was evidence to support the decision of the Secretary of State, but must examine the evidence and make its own decision. Only if the court is satisfied on a balance of probabilities that the person claiming asylum is not a refugee, can the decision to remove him to his country of origin be affirmed.

9

This line of reasoning is said to be supported by analogy by the decision in Reg. v. Secretary of State for the Home Department, Ex parte Khawaja [1984] A.C. 74 that when directions given pursuant to paragraph 9 of Schedule 2 to the Act for the removal of an illegal entrant are challenged on an application for judicial review, it is for the immigration officer or the Secretary of State, as the case may be, to establish the fact of illegal entry.

10

The reason why this argument cannot be sustained is that all questions of fact on which the discretionary decision whether to grant or withold leave to enter or remain depends must necessarily be determined by the immigration officer or the Secretary of State in the exercise of the discretion which is exclusively conferred upon them by section 4(1) of the Act. The question whether an applicant for leave to enter or remain is or is not a refugee is only one, even if a particularly important one required by paragraph 73 of HC169 to be referred to the Home Office, of a multiplicity of questions which immigration officers and officials of the Home Office acting for the Secretary of State must daily determine in dealing with applications for leave to enter or remain in accordance with the rules, as, for example, whether an applicant is a bona fide visitor, student, businsessman, dependant etc. Determination of such questions is only open to challenge in the courts on well known Wednesbury principles. There is no ground for treating the question raised by a claim to refugee status as an exception to this rule. For the reasons explained at length in the speeches in the case of Khawaja the court's fundamentally different approach...

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2 books & journal articles
  • Wrongfooting the Lord Chancellor: Access to Justice in the High Court
    • United Kingdom
    • The Modern Law Review Nbr. 61-2, March 1998
    • 1 March 1998
    ...discretionary powers so as tojeopardise the applicant’s right to life in RvSecretary of State for the Home Department, ex parteBugdaycay [1987] AC 514.13 ‘. .. in judging whether the decision-maker has exceeded this margin of appreciation the human rightscontext is important. The more subst......
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    • Melbourne University Law Review Vol. 26 Nbr. 3, December 2002
    • 1 December 2002
    ...Linda Kirk, `Chapter III and Legislative Interference', above n 91,120. (154) Bugdaycay v Secretary of State for the Home Department [1987] 1 All ER 940, 952 (Lord Bridge). See also Khawaja v Secretary of State for the Home Department [1983] I All ER 765,780-2 (Lord Scarman), 790 (Lord (155......

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