R v Secretary of State for the Home Department, ex parte T.; R v Secretary of State for the Home Department, ex parte H.; R v Secretary of State for the Home Department, ex parte Hickey
| Jurisdiction | England & Wales |
| Judgment Date | 25 March 1994 |
| Date | 25 March 1994 |
| Court | Queen's Bench Division |
Court of Appeal
Staughton, Hoffmann LJJ Sir Roger Parker
Miss E Szwed and R Scannell for the appellant
Miss V Mayer for one of the siblings
N Carden for the Official Solicitor and another of the siblings
S Kovats for the respondent
Cases referred to in the judgments:
Li Kui Yu v Superintendent of Labourers [1906] TS 81.
in re Mohammed Arif (an infant)ELRUNK [1968] Ch 643: [1968] 2 All ER 145.
Raymond v HoneyELRUNK [1983] 1 AC 1: [1982] 1 All ER 756.
Khawaja v Secretary of State for the Home DepartmentELR [1984] AC 74: [1982] Imm AR 139.
re W (adoption: non-patrial)ELRUNK [1986] Fam 54: [1985] 3 All ER 449.
re F (a minor) (immigration: wardship)ELRUNK [1990] Fam 125: [1989] 1 All ER 1155.
re K and S (minors) (wardship: immigration)FLR [1992] 1 FLR 432.
re A (a minor) (wardship: immigration)FLR [1992] 1 FLR 427.
Findlay v Matondo [1993] Imm AR 541.
re T (unreported, Fam Div, 3 December 1993)
R v Secretary of State for the Home Department ex parte T (unreported, QBD, 11 February 1994).
Removal directions — citizen of Eritrea — refused political asylum in United Kingdom — younger siblings in United Kingdom with exceptional leave — application by appellant for residence order — intention siblings would live with him — Secretary of State declined to defer appellant's removal from United Kingdom until residence order proceedings completed — whether contempt of court — the principles guiding the courts where the interests of children and immigration law involved. Immigration Act 1971 sch. 2 para. 8; Children Act 1989 ss. 8, 10(9).
Appeal against dismissal by Judge J of application for judicial review and refusal by Connell J in the Family Division, to grant an interlocutory order.
The appellant was a citizen of Eritrea who had applied for political asylum in the United Kingdom. His application had been refused, and an appeal dismissed. His younger siblings had arrived in the United Kingdom some two years earlier and had been granted exceptional leave to remain for a limited period.
After his application for asylum had been refused the appellant applied for a residence order, under the Children Act 1989 and in respect of his siblings. He proposed that they should live with him: if that application were granted it might have led to his being granted leave to remain in the United Kingdom. The applicant was granted by the district judge, leave to apply for that order.
The Secretary of State then indicated that he was not prepared to defer the removal of the applicant from the United Kingdom until after the application for that order had been heard.
Application was then made in the Family Division for an interlocutory order against the Secretary of State: that was refused by Connell J: an application was then made for judicial review of the Secretary of State's refusal to grant exceptional leave to the applicant: that was dismissed by Judge J.
Both applications were appealed to the Court of Appeal. Counsel for the applicant argued that the Secretary of State's decision to refuse to defer the removal of the applicant was a contempt of court. The Secretary of State's decision not to grant indefinite leave was Wednesbury unreasonable.
The court reviewed the principles that should guide the court when a case involved the interests of children and immigration law.
Held
1. The court may entertain an application to invoke its wardship jurisdiction or powers under the Children Act made by or in respect of a person liable to removal or deportation.
2. However that jurisdiction will be exercised only very sparingly because:
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1. A wardship or Children Act order cannot deprive the Secretary of State of the power conferred by the Immigration Act to remove or deport the child or any other party to the proceedings although it may be something to which the Secretary of State should have regard when deciding whether to exercise his powers under that Act.
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2. In cases in which there is, apart from any immigration questions no genuine dispute concerning the child, the court will not allow itself to be used as a means of influencing the decision of the Secretary of State.
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3. It was incorrect to seek to distinguish orders under the Children Act from wardship orders on the basis that orders under the Act were nearer to adoption orders: adoption orders altered the status of the child, which orders under the Act did not.
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4. The Secretary of State usually sought to be joined as a party but there was no legal obligation on him to be so joined and it did not fetter his powers.
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5. It was not a contempt of court for the Secretary of State to remove a person with whom a child had been ordered to reside, nor to remove him before proceedings in respect of such an order had been completed.
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6. Such a course was not an interference with a person's rights of access to the courts: the issue of a writ was not an automatic passport to this country.
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7. The Secretary of State's decision not to grant exceptional leave was not Wednesbury unreasonable.
Hoffmann LJ: On 21 July 1991 three unaccompanied young Eritrean children arrived at Heathrow on a flight from Milan. They were Y, S and FT, then aged 17, 11 and 8. They claimed asylum, saying that they had just come from Djibouti. The immigration officer did not believe them. He thought that they must have spent some time in Italy before taking the flight from Milan. Asylum was refused. But there was at the time a civil war in Eritrea and the policy of the Home Office was to grant Eritrean citizens who did not qualify for asylum exceptional leave to remain in this country for a limited period. The children were granted leave to stay here until February 1994 and that period has since been extended for another three years.
Two years later, on 20 May 1993, the children's elder brother, DT, arrived at Gatwick on a flight from Milan. He is 20. He had a forged Italian passport. The immigration officer was not deceived and returned him to Italy. On 8 July 1993 he arrived again, this time at Heathrow on a flight from Paris. He claimed asylum, saying that he had come from the Sudan. The immigration officer did not believe him. He thought that he must have spent some time in France. When asked...
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