R v Secretary of State for the Home Department, ex parte Turkoglu
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE CROOM-JOHNSON,LORD JUSTICE BINGHAM |
| Judgment Date | 19 May 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0519-1 |
| Docket Number | 87/0428 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 May 1987 |
and
[1987] EWCA Civ J0519-1
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Croom-Johnson
and
Lord Justice Bingham
87/0428
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 McCOWAN)
Royal Courts of Justice.
MR. I. KULATILAKE (instructed by Messrs. Graham Peries & Co.) appeared on behalf of the Applicant (Appellant).
MISS A. FOSTER (instructed by the Treasury Solicitor) appeared on behalf of the Respondents (Respondents).
We are concerned today with an application on behalf of Mr. Turkoglu for bail pending his appeal to this court from a decision of Mr. Justice McCowan refusing judicial review in an immigration context. The grant of bail is not opposed on behalf of the Secretary of State. Indeed, the Secretary of State goes further and says that he would like bail to be granted for this reason. He has himself power under the Immigration Act to grant temporary admission, which means that the applicant for admission to this country is able to move freely about the country subject to surrendering to the immigration authorities on their demand and subject to a power of arrest which they have under the Immigration Act if he does not surrender. But what the Secretary of State considers he has no power to do is to grant temporary admission subject to a condition that the would-be immigrant provides sureties for his surrendering to the appropriate authorities on demand. On the other hand, it is quite clear that if the court can grant bail, it can impose a condition of sureties. In this case we are invited by the Secretary of State to accede to the application but to impose terms as to sureties.
That has raised the whole question of the powers of courts to grant bail in immigration cases. Clearly we could grant bail ancillary to or as part of proceedings for habeas corpus, but there is no way that proceedings for habeas corpus can be brought in a case of this nature. The power of the Secretary of State to detain under the Immigration Act is clear and the only issue which would arise is whether, as a matter of public law, his decision to exercise those powers was a proper one.
There have been no less than four reported occasions on which the courts have considered the matter thus far. The first was R. v. Secretary of State for the Home Department, ex parte Swati [1986] 1 All E.R. 717. In that case leave to apply for judicial review had been refused by the Divisional Court, and there was a renewed application for leave to apply made to this court. In giving a judgment, with which in substance Lord Justice Stephen Brown and Lord Justice Parker agreed, I said this ( obiter) at page 724 under the heading "Bail":
"As Mr. Swati was deemed to be in legal custody (para 18(4) of the Sch 2 to the 1971 Act) and as we were agreed that leave to apply for judicial review should be refused, no question of bail arose. I would only say that, for my part, I agree that there is an inherent jurisdiction to grant bail, but that, in agreement with the Divisional Court, I consider that, in the light of the statutory powers available to the Secretary of State and to adjudicators, it will only be in exceptional cases that it should be exercised and only if leave to apply for judicial review has been granted."
That case was followed by R. v. Chief Immigration Officer, Heathrow Airport, ex parte Sureshkumar, reported very briefly in the Times of the 22nd April, 1986. It would appear from that report that Lord Justice Lawton had said:
"It seemed that Parliament had intended that all matters relating to the removal and detention of persons refused entry should be under the control of the Secretary of State for the Home Department, and, clearly, he could always grant temporary leave to enter.
If that was so, any need for a jurisdiction to grant bail would have to be satisfied in some other way than by calling on the inherent jurisdiction of the court."
For my part, I cannot believe that that is an entirely accurate report of what the learned Lord Justice said. It certainly is not a full report and we have not seen the transcript. At any rate, it is clear that it was not a matter of the decision by this court. Lord Justice Lawton expressed doubts, but no more. By contrast on this occasion it is a matter for a decision.
That case was followed by In re Dhillon (Times report, 28th January, 1987). It was a decision by myself Lord Justice Fox and Lord...
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