R v Secretary of state for the home department ex parte Balvir Singh
| Jurisdiction | Scotland |
| Judgment Date | 26 April 1996 |
| Date | 26 April 1996 |
| Court | Court of Session (Outer House) |
Outer House of the Court of Session
Lord Gill
J Bryce for the applicant
Mrs F Reith for the respondent
Cases referred to in the judgment:
Shepherd v ElliotSC [1896] 23 R 695.
R v Secretary of State for the Home Department ex parte Irfan Ahmed [1995] Imm AR 210.
Judicial review costs illegal entrant claim for asylum marriage to British citizen asylum refused appeal to special adjudicator no decision by date of hearing of asylum appeal on marriage application whether mixed appeal before adjudicator whether adjudicator should have considered failure by Secretary of State to determine marriage application by date of appeal hearing applicant obliged to institute judicial review proceedings to protect position in United Kingdom proceedings withdrawn on grant of indefinite leave on basis of marriage whether applicant entitled to expenses. Immigration Act 1971 ss. 13(3), 19(l)(a): Asylum and Immigration Appeals Act 1993 s.8 sch.2 para. 3: Asylum Appeals (Procedure) Rules 1993 Form Al, r.29: HC 395 paras. 75, 92.
Application for costs against the Secretary of State following the withdrawal of an application for judicial review.
The applicant was an illegal entrant. He applied for asylum. Before his asylum interview he married a British citizen, although no religious ceremony took place at that time. His asylum application was refused. He appealed but did not appeal on non-asylum grounds. In his appeal he referred to his marriage. At the date of hearing no decision had been made on his marriage application. His asylum appeal was dismissed: the adjudicator made no recommendation to the Secretary of State. The applicant sought to appeal to the Tribunal which refused leave.
The applicant started judicial review proceedings against the refusal of leave to appeal to the Tribunal. Shortly before the case was to be heard, he was granted indefinite leave to remain, on the basis of his marriage.
The proceedings for judicial review were withdrawn but the applicant applied for expenses against the Secretary of State. He asserted that following the dismissal of his asylum appeal he could only protect his position in the United Kingdom by commencing those proceedings: the failure of the Secretary of State to determine the marriage application by the date of the appeal hearing had been an action of a negative kind.
Held:
1. The respondent's non-determination of the marriage application was not the effective cause of the application for judicial review. If the petition were seen as the only means to pursue the marriage application from within the United Kingdom, that strategy undermined the legislation requiring such an application to be pursued from outside the United Kingdom. On that basis expenses against the respondent would not be justified.
2. The asylum application and the marriage application were separate issues. The Secretary of State was entitled to defer a decision on the marriage application, in any event, until after the religious ceremony.
3. The appeal before the adjudicator was not a mixed appeal: there had been no decision at that date on the marriage application and thus in that regard nothing against which to appeal.
4. For the reasons given, the respondent was entitled to the expenses of the motion roll hearing.
Lord Gill: On 25 October 1995 the petitioner presented this petition for judicial review. In it he sought, inter alia, reduction of two decisions relating to his application for political asylum, the first being a decision dated 31 August 1995 by a special adjudicator to refuse his application and the second being a decision dated 15 September 1995 by the Immigration Appeal Tribunal to refuse him leave to appeal.
The first hearing on the petition was fixed for 2 and 3 May 1996 but that hearing will not now take place because on 11 March 1996 the petitioner's agents received intimation on behalf of the respondent that a decision had been made to allow the petitioner leave to remain in the United Kingdom on the basis of his marriage to a British citizen.
The petitioner's position having been now secured in this way, a motion has been enrolled on his behalf for dismissal of the petition and for expenses against the respondent...
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