R v Secretary of State for the Home Department, ex parte Begum; R v Secretary of State for the Home Department ex parte. Jan
| Jurisdiction | England & Wales |
| Judgment Date | 20 March 1989 |
| Date | 20 March 1989 |
| Court | Court of Appeal (Civil Division) |
Lord Donaldson MR, Bingham, Mann LJJ
Court of Appeal
Judicial review — leave granted ex parte — subsequently set aside on inter partes hearing — application for judicial review before Court of Appeal — the procedure to be followed by the judge at first instance when he is uncertain on the facts before him, whether to grant leave — whether judicial review would be given on the basis of a point never taken during the proceedings before the immigration appellate authorities.
Wife — entry certificate granted to join husband in United Kingdom — husband had died in Bangladesh by date of decision to refuse leave to enter — whether refusal of leave justified — whether “present in the United Kingdom and settled here” means physically present. HC 169 paras. 46–48.
Child — granted entry clearance to travel with mother to United Kingdom — mother failed to travel with child — refusal of leave to enter — whether justified. HC 169 para. 50(c).
Appeals from McCowan J who had set aside after inter partes hearings, applications for judicial review previously granted ex parte. In the case of Angur Begum, and her step-children, the applicants were refused leave to enter when the husband and father died in Bangladesh, after the grant of entry clearance and before the date of decision to refuse leave to enter. It was argued that either on a true interpretation of paragraphs 46–48 of HC 169 or on the basis of the provisions of s. 1(5) of the 1971 Act, they were still entitled to enter the United Kingdom. Rukshanda Begum (a minor) was given entry clearance to travel with her mother to the United Kingdom to join her father: in the event the mother remained in Bangladesh. The applicant was refused leave to enter. Before the appellate authorities it had been argued that the applicant was entitled to entry clearance under HC 169 paragraph 50(c): it was now argued that the Secretary of State should have considered the case, on review, under HC 169 paragraph 50(f).
Held
1. In paragraph 46 of HC 169 the phrase “present in the United Kingdom and settled there” meant “physically present”. It followed that Angur Begum and her step-children had no arguable claim to admission under paragraphs 46–48 of HC 169. Counsel however had raised an issue relating to the provisions of s. 1(5) of the 1971 Act which merited full argument. The application for judical review would accordingly be granted.
2. In the events which had happened Rukhshanda Begum had no claim to admission under paragraph 50(c) of HC 169. The argument under sub-paragraph 50(f) had never been raised before the immigration appellate authorities. ‘It would be almost without precedent for this court to intervene by judicial review where an appeal process is not only available but has been gone through and the point has not been taken.’ The application for judical review would be refused.
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