R v Secretary of State for the Home Department, ex parte Bagga

JurisdictionEngland & Wales
JudgeLORD JUSTICE PARKER,LORD JUSTICE GLIDEWELL,LORD JUSTICE LEGGATT
Judgment Date11 April 1990
Judgment citation (vLex)[1990] EWCA Civ J0411-7
CourtCourt of Appeal (Civil Division)
Date11 April 1990
Docket Number90/0359 CO/1137/88 CO/1690/88 CO/1760/88

[1990] EWCA Civ J0411-7

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)

Royal Courts of Justice,

Before:

Lord Justice Parker

Lord Justice Glidewell

Lord Justice Leggatt

90/0359

CO/607/88

CO/1137/88

CO/1690/88

CO/1760/88

Re: Bagga's Application for Judicial Review
Re: Bist's Application for Judicial Review
Re: Rasiah & Anor's Application for Judicial Review
Re: Kakkar's Application for Judicial Review
Re: Ali's Application for Judicial Review

THE HON. MICHAEL BELOFF Q.C., MR P. STINCHCOMBE and MR R. HUMPHREYS (instructed by the Treasury Solicitor) appeared on behalf of the Appellant.

MR N. BLAKE (instructed by Messrs. W.P. Duckney, Solicitors, Southall) appeared on behalf of the Respondent Bagga.

MR O. DAVIES (instructed by Messrs. Seifert Sedley Williams) appeared on behalf of the Respondents Bist, Rasiah & Anor and Kakkar.

MR A. RIZA (instructed by Messrs. Iqbal & Co.) appeared on behalf of the Appellant Ali.

THE HON. MICHAEL BELOFF Q. C., MR P. STINCHCOMBE and MR R. HUMPHREYS (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.

1

(ii)

LORD JUSTICE PARKER
2

There are before the Court for determination five appeals. In the first four of them, the Secretary of State appeals against the decision of a Divisional Court of the Queen's Bench Division (Woolf L.J. and Ian Kennedy J.) dated 25th April 1988 by which, following earlier decisions of that Court, it was held that the respondents had indefinite leave to remain in the United Kingdom. In the fifth the applicant, Ali, appeals against the decision of Farquharson J., dated 27th September 1988, whereby his application for judicial review of a decision of the Immigration Appeal Tribunal, dated 27th April 1987, refusing him leave to appeal against the decision of an Adjudicator dated 25th February 1985, was dismissed.

3

I shall consider first the four appeals by the Secretary of State. These four appeals all involve two common issues and, in the case of Bagga, one further separate issue. The appeal of Ali raises a quite separate point.

4

The appeals by the Secretary of State

5

I state only those facts necessary for an understanding of the common issues. I do so separately in relation to each of the respondents.

6

Bagga

7

He is an Indian citizen and first arrived in the U.K. on 13th November 1981 to take up employment with the Indian High Commission. He was in possession of a white diplomatic passport. His passport was date-stamped. His appointment was notified to the Foreign and Commonwealth Office on 25th November 1981. He remained in employment with the Indian High Commission until 8th July 1985.

8

He notified the Home Office that his employment had ceased. On 14th September 1985 he left the United Kingdom and returned to India. Whilst there his white diplomatic passport was cancelled and he was issued with a new ordinary blue passport.

9

On 13th April 1986 he returned to the United Kingdom for a visit. His passport was date-stamped. Later, on 14th November, it was endorsed with a "visa exempt" stamp. Ten days later, on 24th November, he returned to India. He again arrived in the United Kingdom on 21st January 1987. He was then refused leave to enter. That refusal was sub-dequently quashed on judicial review by MacPherson J. His position was then reconsidered and he was refused leave to enter on the basis that he was exempt from the Immigration Act 1971 on his original entry in November 1981, but that his "leave to enter" in April 1986 had been obtained by deception.

10

Bist

11

On 27th April 1984 the respondents arrived in the United Kingdom in company with their father, who had been appointed to the Indian High Commission. They are Indian citizens. Their passports were date-stamped. No notification of their father's appointment was ever given by the High Commission to the Foreign and Commonwealth Office.

12

On 11th May 1987,. by which time their father's appointment with the High Commission had terminated, they applied for confirmation that they had indefinite leave to remain in the United Kingdom. On 30th June 1988 they were refused such leave.

13

Rasiah

14

In October 1984 the respondent and her husband were lawfully in the United Kingdom under limited leave due to expire on 31st October. She is a citizen of Singapore, and he a citizen of Sri Lanka. On 23rd October 1984 they wrote to the Home Office seeking "an extension of their visa", and enclosing their passports and a letter from the Singapore High Commission in London, dated 18th October 1984, notifying the Home Office that she was engaged by the High Commission as a clerk/typist as from 3rd September 1984.

15

On 10th January 1985 the respondent's passport was endorsed: "While the holder is employed as a clerk/typist at the Singapore High Commission she is not subject to any condition or limitation on the period of permitted stay in the United Kingdom". A corresponding entry was made in her husband's passport.

16

In May 1985, when still working for the High Commission she was out of the United Kingdom for a short time, and on re-entry her passport was date-stamped. On 24th November 1987 solicitors on her behalf confirmed that she was still working for the High Commission, but sought confirmation that when she left both her own and her husband's passport would be endorsed that neither was subject to any time limit on their stay. This was refused by letter dated 18th March 1988. The respondent's appointment to the High Commission, although notified to the Home Office, was never notified to the Foreign Office.

17

Kakker

18

The respondent, who is a citizen of India, arrived in the United Kingdom on 26th August 1978, in company with her husband who had been appointed Assistant Section Officer in the Indian High Commission. Their passports were date-stamped. Her husband's appointment was notified to the Foreign and Commonwealth Office on 26th August 1978. His appointment terminated on 14th September 1982.

19

On 30th September 1987 the respondent's solicitors sought confirmation that she was permitted to stay without conditions. On 6th May 1988 the request was refused.

20

So much for the facts.

21

Statutory provisions

22

Prior to its further amendment by Section 4 of the Immigration Act, 1988, Section 8 (3) of the Immigration Act 1971, as amended, provided:

23

"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 to the like immunity from jurisdiction as is conferred by that Act on a diplomatic agent".

24

The subsequent amendment was not in force at any time material to these appeals.

25

The Diplomatic Privileges Act 1964 incorporates into the law of the United Kingdom those Articles of the Vienna Convention on Diplomatic Relations signed in 1961 which are set out in Schedule 1 to the Act. Article 1, which is so set out provides, so far as immediately material:

26

"For the purposes of the present Convention, the following expressions shall have the meanings hereunder assigned to them:

27

(a) the 'head of the Mission' is the person charged by the sending State with the duty of acting in that capacity;

28

(b) the 'members of the Mission' are the head of the Mission and the members of the staff of the Mission;

29

(c) the 'members of the staff of the Mission" are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the Mission;

30

(d) the 'members of the diplomatic staff' are the members of the staff of the Mission having diplomatic rank;

31

(e) a 'diplomatic agent' is the Head of the Mission or a member of the diplomatic staff of the Mission;

32

(f) the 'members of the administrative and technical staff' are the members of the staff of the Mission employed in the administrative and technical service of the Mission;

33

(g) the 'members of the service staff' are the members of the staff of the Mission in the domestic service of the Mission".

34

Article 39 (1) and (2), also so set out, provide:

35

"1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.

36

"2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, hut shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the Mission, immunity shall continue to subsist".

37

Although no question here arises on its application, reference may also be made to Article 36 (also in Schedule 1). It provides:

38

"1. The receiving State shall, in accordance with such lawa and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes and related charges other than charges for storage, cartage and similar services on:

  • (a) articles for the official use of the Mission;

  • (b) articles for the personal use of a diplomatic agent or members of his family forming part of his house-hold, including articles intended for his establishment.

    ...

To continue reading

Request your trial
23 cases
  • Ahmed v Government of the Kingdom of Saudi Arabia
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 6 Julio 1995
    ...in question. We were in fact referred to authority in Regina v. Secretary of State for the Home Department, ex parte BaggaELRINTL [1991] 1 QB 485[2] where a not entirely dissimilar question arose under Section 8(3) of the Immigration Act 1971. That sub-section set out in the headnote to tha......
  • Kuwait Investment Office v Mr S Hard
    • United Kingdom
    • Employment Appeal Tribunal
    • Invalid date
    ...accepted and received by the FCO. At paragraph 39, Lord Dyson had considered R v Secretary of State for the Home Department, ex p Bagga [1991] 1 QB 485, stating his view that it was inconsistent with the proposition that, in deciding whether immunity applies, the court can inquire into the ......
  • R v Commissioners of Inland Revenue, ex parte Caglar
    • United Kingdom
    • Special Commissioners (UK)
    • 7 Marzo 1996
    ...ex parte Osman (No 2) 88 ILR 378; Engelke v Musmann HL [1928] AC 433; R v Secretary of State for the Home Department ex parte Bagga CA 1991 QB 485; and Government of Saudi Arabia v Ahmed (1993) EAT 276/93. 62. Mr Beloff contended that the distinction between exemption from tax and immunity ......
  • Estrada v Al-Juffali (Secretary of State for Foreign and Commonwealth Affairs intervening)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 22 Marzo 2016
    ...adopted an approach that was correct in law. These are R v Governor of Pentonville Prison ex p Teja [1971] 2 QB 274, R v Secretary of State for the Home Department ex p Bagga [1991] QB 485 and Apex Global Management Ltd v Fi Call & Others [2013] EWHC 587 37 In Teja an Indian national clai......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT