Schmidt v Home Office ; Schmidt v Secretary of State for Home Affairs

JurisdictionEngland & Wales
Judgment Date19 December 1968
Judgment citation (vLex)[1968] EWCA Civ J1219-2
Date19 December 1968
CourtCourt of Appeal (Civil Division)
Andrew Schmidt and Joseph Murranti (each suing on behalf of himself and 50 other alien students for the qualification of Auditor or Minister of the Hubbard College of Scientology, East Grinstead, Sussex)
Plaintiffs Appellants
The Secretary of State for Home Affairs
Defendant Respondent

[1968] EWCA Civ J1219-2


The Master of the Rolls (Lord Denning)

Lord Justice Russell and

Lord Justice Widgery

In The Supreme Court of Judicature

Court of Appeal

Appeal from judgment of Mr. Justice Ungoed-Thomas on 22nd October, 1968.

Mr. QUINTIN HOGG, Q.C., Mr. PETER PAIN, Q.C., Mr. LAURENCE GIOVENE and Mr. GAVIN LIGHTMAN (instructed by Messrs. Lawrence Alkin & Co.) appeared on behalf of the Appellant Plaintiffs.

Mr. JOHN WARNER and Mr. GORDON SLYNN (instructed by the Treasury Solicitor) appeared on behalf of the Defendant Respondent.


At Saint Hill Manor near East Grinstead, there is an establishment which calls itself the Hubbard College of Scientology. It is owned by an American Corporation called the Church of Scientology of California. Scientology is a word which has recently been invented. It finds no place in the English dictionaries. Its proponents say that Scientology is a religion: and that this religion, its faith and belief, its teaching and practices are taught to students at the College at East Grinstead, The present number of students is 234, of whom approximately 100 are aliens. Among those aliens are two citizens of the United States. These two bring an action in the Courts against the Home Secretary. They bring it for themselves and 50 other alien students at the College. They say that they were permitted to come into this country in order to study at the College of Scientology. Their permits were for a limited time. The time has expired. They wished to complete their studies and asked the Home Secretary to extend their permits. He refused. They say that his refusal was invalid, because he did it for an unauthorised purpose, and also because he did not act fairly towards them.


The Home Secretary applied to strike out the action as disclosing no reasonable cause of action or as an abuse of the process of the Court within the Rules, Order 18, Rule 19. The Judge struck it out. The plaintiffs appeal to this Court. Their case has been put forcibly by Mr. Quintin Hogg.


It is the policy of the Home Office to allow an alien to enter this country if he comes into, one out of several particular categories. One of these is when he comes "for the purpose of fulltime study at a recognised educational establishment". In pursuance of that policy, the Home Secretary in August 1967 allowed the first plaintiff, Mr. Andrew Schmidt, to enter this country, and in June 1968 he allowed Mr. Murranti to enter. In June and July 1968 the Secretary of the Hubbard College of Scientology applied on their behalf for an extension of their stay in this country. The letter on behalf of Mr. Schmidt said: "I am applying for extension of stay for Andrew Harold Schmidtuntil 5th November, 1968, Andrew Harold Schmidt is a student at the Hubbard College of Scientology and he requires this time to complete his studies". The letter on behalf of Mr. Murranti was in the same terms. The Home Secretary did not reply at once to those letters, and, before he replied, the Minister of Health made a statement in the House of Commons about Scientology. I will give some extracts from its


"Scientology is a pseudo-philosophical cult introduced into this country some years ago from the United States and has its world headquarters in East Grinstead. It has been described by its founder, Mr. L. Ron Hubbard, as 'the world's largest mental health organization.


"The Government are satisfied, having reviewed all the available evidence, that Scientology is socially harmful. It alienates members of families from each other and attributes squalid and disgraceful motives to all who oppose it; its authoritarian principles and practice are a potential menace to the personality and Well-being of those so deluded as to become its followers; above all, its methods can be a serious danger to the health of those who submit to them. There is evidence that children are now being indoctrinated.


"There is no power under existing law to prohibit the practice of Scientology; but the Government have concluded that it is so objectionable that it would be right to take all steps within their power to curb its growth.


"The following steps are being taken with immediate effect:


(d) Foreign nationals already in the United Kingdom for study at a Scientology establishment will not be granted extensions of stay to continue these studies".


In the course of that statement, the Minister referred to an investigation which had been held in the State of Victoria, Australia, into Scientology, and found it to be an evil; and to a debate in the House of Commons on 6th March, 1967, when its evils were exposed. It is clear that the Minister does not regard Scientology as a religion or as a church, as itclaims to be. It is a pseudo-religion and a pseudo-church which he regards as socially harmful.


At the end of July 1968 the Home Secretary rejected the applications of these two gentlemen in these words:


"Your attention is drawn to the statement made to the House of Commons on July 25th by the Minister of Health in which he said that the Hubbard College of Scientology, and all other Scientology establishments, will no longer be accepted as educational establishments for the purposes of Home Office policy on the admission and subsequent control of foreign nationals.


"In these circumstances the Secretary of State regrets that he is not prepared to extend your stay to enable you to continue as a student at one of the Hubbard Colleges. Your stay has, however, been extended until 30th September, 1968, to enable you to make suitable arrangements for your departure."


A fortnight later, on 14th August, 1968, the plaintiffs issued the writ in this action, and they delivered a statement of claim. The question is whether it discloses a reasonable cause of action.


The first point is whether there is any case for saying that the Home Secretary acted unlawfully in refusing an extension. Both sides accepted as correct the statement in ( Regins v. Governor of Brixton Prison, ex parte Soblen 1963 2 Q.B. 243) at page 302, where I said that the validity of the Minister's act "depends on the purpose with which the act is done. If it was done for an authorised purpose, it was lawful. If it was done professedly for an authorised purpose, but in fact for a different purpose with an ulterior object, it was unlawful".


So I turn to consider what are the authorised purposes of the Home Secretary in respect of an alien - a friendly alien, no-doubt - coming to this country. I have always held the view that at common law no alien has any right to enter this country except by leave of the Crown: and the Crown can refuse leave without giving any reason. The common law has now been overtaken by the Aliens Acts and the Orders thereunder. Article1(1) of the Aliens Order, 1953, says that an alien shall not land or embark in the United Kingdom except with the leave of an immigration officer. Article 5(1) says that leave may be granted to an alien subject to any conditions of which notice is given to the alien by the immigration officer. Article 5(5) says that, where any such condition limits the period during which an alien may remain in the United Kingdom, he shall be deemed to contravene that condition if he is found in the United Kingdom at any time after the expiration of that period. If the alien stays beyond the time limited by the condition, he can be prosecuted; and if convicted, he can be recommended for deportation. Even if he is not prosecuted, the Secretary of State, under Article 20, can make a deportation order if he deems it to be conducive to the public good.


The Order thus gives to the Secretary of State ample power either to refuse admission to an alien or to grant him leave to enter for a limited period, or to refuse to extend his stay. Mr. Quintin Hogg sought to limit that power. He said that the Home Secretary could only have regard to three purposes: (1) the safety of the realm; (2) the observance of the law of the land; and (3) the preservation of the standards of morality generally accepted in this country. In the present case Mr. Hogg said that the Home Secretary did not exercise his power for any of those three authorised purposes, but for an unauthorised purpose which he stated to us in this way; The Home Secretary was, he said, using his power for the purpose of expressing disapproval of, and to bring into disrespect, a religious sect which was not prohibited by the law of the land. I do not think that the authorised purposes are limited in the way suggested by Mr. Hogg. I think the Minister can exercise his power for any purpose which he considers to be for the public good or to be in the interests of the people of this country. There is not the slightest ground for thinking that the Minister exercised his power here for any unauthorised purpose or with any ulterior motive. The Minister's purpose was clearly disclosed in the statement which he made tothe House of Commons. He thought that the practices of these people, these Scientologists, were most harmful to our society, and that it was undesirable in the interests of the people of this country that alien students of Scientology should be allowed to stay any longer or that any new ones should be allowed to come in. That purpose was entirely justifiable. It was exercised by the Home Secretary in the interests of the ordinary people of this country: and I, do not think we should admit any doubt to be thrown on its validity.


The second point is whether the Home Secretary was at...

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    ...‘legitimate expectation’ in this context originated in the judgment of Lord Denning MR in Schmidt v Secretary of State of Home Affairs[1969] 2 Ch 149, 170. It is many ways an apt one to express the underlying principle, though it is somewhat lacking in precision. In Salemi v MacKellar (No 2......
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