R v Secretary of State for the Home Department and Another, ex parte Muboyayi
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE GLIDEWELL,LORD JUSTICE TAYLOR |
| Judgment Date | 25 June 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0625-1 |
| Docket Number | 91/0603 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 June 1991 |
[1991] EWCA Civ J0625-1
The Master of The Rolls
(Lord Donaldson)
Lord Justice Glidewell
Lord Justice Taylor
91/0603
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(MR. JUSTICE BROOKE)
Royal Courts of Justice
MR. R. M. JAY (instructed by the Treasury Solicitor) appeared for the Appellant.
MR. MICHAEL SHRIMPTON and MISS J. M. A. MAXWELL (instructed by Messrs. Wilson & Co.)
Mr. Muboyayi ("the applicant") is a citizen of Zaire. Accompanied by his wife and child he left that country on 22nd April 1991 arriving in Italy on 16th May. From there they took a train to Paris, where they arrived on 18th May. On the following day they flew to London Airport. On arrival the applicant claimed that he, his wife and child, should be given leave to enter on the grounds that he had a well founded fear of persecution in Zaire for reasons of race, religion, nationality or membership of a particular social group or political opinion within the meaning of the United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees.
On 22nd May after an examination pursuant to paragraph 2 of Schedule 2 to the Immigration Act 1971 all three were refused leave to enter and were given notice of intention to remove them to Paris at 1.30 p.m. on 23rd May. The reasons given were twofold, but only one is of significance. This was that:
"Zaire is not the only country to which you can be removed. You arrived from France where you spent 1 day. You are under paragraph 8(1)(c) of Schedule 2 of the Immigration Act 1971 properly returnable to France and I am satisfied on the information available that you will be re-admitted there.
Moreover France is a signatory to the 1951 UN Convention Relating to the Status of Refugees and, on the basis of the information available to him about the policies and practice of France and having considered the individual circumstances of your case, the Secretary of State is satisfied that the French authorities would not further remove you to Zaire without first considering in accordance with its obligations under the 1951 UN Convention, any application you may make, for asylum in that country.
In these circumstances your application for asylum here has not been considered."
The other reason was that "As nationals of Zaire you are required under the Immigration Rules to have a visa in order to enter the United Kingdom, but you have no visa".
The applicant was then detained pursuant to paragraph 16(2) of the Second Schedule to the 1971 Act as being a person in respect of whom directions might be given under paragraphs 8 to 14, the relevant paragraphs on the facts of this case being paragraphs 8 or 10. His wife and child were granted temporary admission pursuant to paragraph 21.
Solicitors acting for the applicant then made representations to the Home Office to the effect that France was not properly to be considered "a safe third country" in that, as the applicant alleged, his application for political asylum would not be properly considered by that country and that he would be likely to be returned to Zaire. The officials in the Home Office rejected this representation, but said that no special assurance had been sought from the French authorities that an application by the applicant and his family for political asylum would be considered.
The application for a writ of habeas corpus
Application was then made to Brooke J. for the issue of a writ of habeas corpus ad subjiciendum. The application was heard at about noon on 23rd May and at about 12.30 p.m. the judge ordered that such a writ be issued addressed to the Chief Immigration Officer, Gatwick Airport. It required him "to have the body of [the applicant] before this Court on the 19th day of June 1991 at 10.30 o'clock and to make a return to the said writ", namely, informing the court of "the day and cause of his being taken and detained".
The first stage of the appeal
The Secretary of State and the Chief Immigration Officer thereupon immediately appealed to this court seeking to have the writ set aside. The applicant equally promptly challenged the jurisdiction of this court to entertain such an appeal. This latter issue was considered as a matter of urgency by Parker, Nourse and Nolan L.JJ. who on 24th May ruled that the Court of Appeal had jurisdiction and adjourned further consideration of the appeal.
The second stage of the appeal
Relatively large numbers of would-be immigrants to this country seek leave to enter upon grounds that they are in need of asylum and some seek judicial review of any refusal of leave to enter. What is highly unusual is for application instead to be made for the issue of a writ of habeas corpus. There was, however, an unusual background which needs to be explained. On a recent occasion another citizen of Zaire had applied for leave to seek judicial review of a decision to refuse him leave to enter as one seeking asylum. His application was dismissed by the High Court and, on renewal, by this court. Thereafter some further similar application was made to the High Court at or about the time when he was due to be removed from this country. There is an issue as to whether counsel for the Secretary of State on that occasion gave the court an undertaking that his removal would be delayed, but in fact it was not so delayed and he was returned to Zaire. I say no more about this, since it is the subject of further proceedings, but Mr. Jay, counsel appearing for the Secretary of State and the Chief Immigration Officer before Brooke J., had that case in mind and I should be surprised if the same could not have been said of Brooke J.
As I have said, the application for the writ of habeas corpus came before Brooke J. within about an hour of the intended time for the removal of the applicant from this country. The judge asked for an undertaking that the removal would be delayed until he had had an opportunity of considering the matter. Mr. Jay declined to give any such undertaking and let me say at once that he is not to be criticised in any way for so doing. He had only just been instructed, he had no express authority to give such an undertaking and he feared that it might not be practicable to prevent the removal of the applicant at that late stage. The judge, for his part, is equally not to be criticised. He had a very short time in which to decide what to do in order to ensure, so far as possible, that the court should not be put in a position in which any consideration of the applicant's complaint, whatever its procedural defects, would be rendered academic.
Habeas Corpus or Judicial Review?
The essence of the argument advanced by Mr. Jay on behalf of the appellants is that the proper procedure for advancing the applicant's complaint was to seek leave to apply for judicial review of the decision to refuse leave to enter and that, unless and until leave was granted and that decision was quashed, the applicant's detention under the authority of the Chief Immigration Officer was unimpeachable. The essence of the argument advanced by Mr. Shrimpton was that on the return of a writ of habeas corpus the court is not limited to a consideration of errors on the face of the warrant of detention, but can and will investigate whether the warrant was properly issued. This, on the facts of this and similar cases, would involve considering the justification for refusing leave to enter. Accordingly an applicant, such as the present applicant, has a choice whether to seek leave to apply for judicial review or, as Mr. Shrimpton put it, to seeK "the constitutional high ground" of a writ of habeas corpus. That the habeas corpus route is more attractive to disappointed aspiring immigrants in that traditionally the highest priority is given to applications for such a writ and that a refusal to issue it is potentially appealable to the House of Lords, whereas a refusal of leave to apply for judicial review is not, is nothing to the point.
In these circumstances it seemed to us at a very early stage in the argument that the applicant's complaints ought to be considered and determined at the earliest possible moment and that there should be no question of saying to him that he had embarked on the wrong route and either must now start again or, worse still, could not do so. We therefore invited Mr. Shrimpton to apply to us for leave to seek judicial review, notwithstanding that he had made no previous application to the High Court, that having been held to be a permissible procedure in Chief Adjudication Officer and Secretary of State for Social Security v. Foster (C.A. Transcript 21st February 1991). Mr. Shrimpton accepted the invitation without prejudice to his primary submission that the applicant was entitled to proceed by way of habeas corpus. We are therefore seised both of an appeal and of an application for leave to seek judicial review.
In a skeleton argument served on behalf of the Secretary of State Mr. Jay advanced a number of arguments which individually or cumulatively were said to support the proposition that "habeas corpus is not open to the Respondent; the correct avenue was Order 53". I will advert to them as necessary hereafter, but in view of its constitutional importance I must first refer to:-
"(h) the practical effect of issuing a writ of habeas corpus under RSC Order 54 rule 2 is to enjoin the Crown: this is contrary to the principles laid down by the House of Lords in Factortame".
Although Mr....
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