R v Secretary of State for the Home Department, ex parte T
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Year | 1995 |
| Date | 1995 |
| Court | Court of Appeal (Civil Division) |
STAUGHTON AND HOFFMANN, L JJ AND SIR ROGER PARKER
Immigration – applicant liable to deportation – applicant making applications for residence orders in respect of younger siblings already in England – Secretary of State proposing to remove the applicant from the jurisdiction prior to the final Children Act hearing – Judges refusing injunctive relief and judicial review – whether Judges correct.
The children were aged 17, 11 and 8, and from Eritrea. There had been a civil war in Eritrea. They had arrived in the UK on 21 July 1991 on a flight from Milan. They claimed asylum. Asylum was refused but exceptional leave to remain was granted until February 1994. That period was subsequently extended for three years. In May 1993 the children's elder brother arrived on a flight from Milan with a forged Italian passport. He was returned to Italy. In July 1993 he arrived again on a flight from Paris. He claimed asylum saying that he had come from the Sudan. The brother was liable to be returned to France to make his application for asylum there. The Home Office decided to do this.
However, on 23 July 1993 the brother applied ex parte to a district judge of the Family Division for leave to apply for residence orders in respect of his youngest brother and sister. At this time the brother was being held in Harmsworth Detention Centre. He said that if released he would seek accommodation for himself and the children from the London borough of Hillingdon. The brother's application was supported by a social worker from Hillingdon. The district judge granted leave.
Following this the Home Office decided to deal with the brother's application for asylum on its merits. On 16 August 1993 the Secretary of State refused the application. In October 1993 a special adjudicator dismissed an appeal from that decision. He recommended that the Secretary of State could grant exceptional leave for a limited period. The Secretary of State refused to accept this recommendation. Meanwhile, in August 1993 there was a directions hearing in the Family Division. The Secretary of State was joined as a party and agreed through counsel that the brother would not be removed from the jurisdiction whilst proceedings were pending. However, after the evidence was complete, and the applications for asylum and exceptional leave had been rejected, the Secretary of State changed his mind. He indicated that unless leave to apply for judicial review was obtained the brother would be removed after 14 days.
The elder brother applied in the Family Division for an interlocutory order restraining the Secretary of State from removing him from the jurisdiction until proceedings had been
[1995] 3 FCR 1 at 2
completed. That application was dismissed. After that there was an application for judicial review of the Secretary of State's decision. Leave to move was granted on 12 January 1994 but the motion itself was dismissed on 11 February 1994.
The brother appealed against both decisions.
Held – (1) It had been argued that the removal of the elder brother from the country before the determination of his residence order application would have been an interference by the Secretary of State in the course of justice which would amount to a contempt of court. There had been a number of cases in which the court's jurisdiction in respect of children had been invoked in an attempt to inhibit or influence the exercise of powers under the Immigration Act 1971. The court could entertain an application to invoke its wardship jurisdiction or powers under the Children Act 1989 made by or in respect of a person liable to deportation or removal. That jurisdiction would be exercised very sparingly because a wardship or Children Act order could not deprive the Secretary of State of the power conferred by the Immigration Act 1971. In cases where there was no genuine dispute concerning the child the court would not allow itself to be used as a means of influencing the decision of the Secretary of State.
(2) The Judge hearing an application in wardship or under the Children Act was not entitled to have regard to immigration policy. The Judge must be guided solely by the best interests of the child. The Secretary of State exercised a power based on wholly different considerations. Any order made or views expressed by the court would be a matter to be taken into account by the Secretary of State in the exercise of his powers. If he simply paid no attention to the order he ran the risk of his decision being reviewed. No analogy could be drawn with adoption cases. An adoption order did have the effect of preventing the Secretary of State exercising immigration powers. The reason for this was that such orders altered the status of the child. Children Act orders did not affect status.
(3) The Secretary of State was under no legal necessity to intervene and have the Children Act proceedings dismissed before he could exercise his immigration powers. The court and the Secretary of State were performing different functions. It did not follow that because the court refused to dismiss the Children Act application the Secretary of State should not exercise his powers of deportation or removal. Policy might require it. Provided that the decision was not irrational or procedurally irregular the court could not declare it unlawful. However, an application by the Secretary of State to be joined as a party did not amount to an election to abide their outcome. After seeing the evidence the Secretary of State took the view that the application was not bona fide in the interests of the children. This was a question which could have been submitted to the decision of the court, but the Secretary of State was under no obligation to so submit it. Neither could the elder brother insist that it be done. If the existence of a wardship or Children Act order in respect of a child could not in itself inhibit the power of the Secretary of State to order the child's removal, it followed that it could not prevent the removal of the person with whom the child had been ordered to reside. If removal in the face of an order was not a contempt of court it could not be a contempt to direct the brother's removal whilst he was applying for one.
(4) A question had been raised as to the extent to which the brother's right to resort to the courts had been restricted by the Immigration Act 1971. The powers of the Secretary of State were not qualified by a general right of access to the courts. If that were true it would entitle anyone who wished to litigate in the English courts to enter the country and remain for that purpose. It was impossible to read this into the...
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