COURT OF APPEAL.
Appeal from judgment of Mr. Justice Ungoed-Thomas
on 22nd October, 1968.
B e f o r e :
LORD JUSTICE RUSSELL
LORD JUSTICE WIDGERY
| ANDREW SCHMIDT and JOSEPH MURRANTI
(each suing on behalf of himself and 50 other alien students
for the qualification of Auditor of
Minister of the Hubbard College of Scientology, East Grinstead, Sussex)
|THE SECRETARY OF STATE FOR HOME AFFAIRS
Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C. 2.)
Mr. JOHN WARNER and Mr. GORDON SLYNN (instructed by the Treasury Solicitor) appeared on behalf of the Defendant Respondent.
Crown Copyright ©
THE MASTER OF THE ROLLS: 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 Schmidt until 3th 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 it:-
"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 organisation ......
"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 it claims to be. It is a pseudo-religion and a pseudo-church which he regards as socially harmful.
"Your attention is drawn to the statement made to the House of Commons on July 23th 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."
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 Regina 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 there under. Article 1(1) of the Aliens Order, 1933, 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 3(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 to the 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 fault in laying down a general policy about Scientology and thus fettering his discretion. On this point both sides accepted the law as stated by Lord Justice Bankes in Rex v. Port of London Authority (1919 1 Q.B. 184), which shows that a tribunal may, in the honest exercise of its discretion, adopt a policy, and announce it to those concerned, so long as it is ready to listen to reasons why, in an exceptional case, that policy should not be applied. If such be the case with a tribunal, it is certainly the case with the Home Secretary. He is responsible for the immigration control. He has to give instructions to immigration officers so that they shall know how to act. That is recognised by Article 30 of the Aliens Order. He must, therefore, be able to lay down general policy and give guidance to his officers for their day-to-day tasks. For instance, he can tell his officers that students may be admitted if they are coming to study at a recognised educational establishment; and he can tell them which establishments are recognised and which are not. There is no possible ground for challenging his policy in regard to Scientology or his instructions that this East Grinstead establishment was no longer to be a recognised educational establishment.
The third point is whether there is any ground for saying that the Home Secretary did not observe the precepts of natural justice. Mr. Quintin Hogg submitted that the Minister ought to have given the students a hearing before he refused to extend their stay in this country. I see no basis for this suggestion. I quite agree, of course, that where a public officer has power to deprive a person of his liberty or his property, the general principle is that it is not to be done without his being given an opportunity of being heard and of making representations on his own behalf. But in the case of aliens, it is rather different: for they have no right to be here except by licence of the Crown. And it has been held that the Home Secretary is not bound to hear representations on their behalf, even in the case of a deportation order, though, in practice, he usually does so. It was so held in Rex v. Leman Street Police Station Inspector, ex parte Venicoff (1920 3 K.B. 72), which was followed by this Court in Soblen's case (1963 2 Q.B. 243). Some of the judgments in those cases were based on the fact that the Home Secretary was exercising an administrative power and not doing a judicial act. But that distinction is no longer valid. The speeches in Ridge v. Baldwin (1964 AC 40) show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say. Thus in re H.K. (1967 2 Q.B. 617) a Commonwealth citizen had a right to be admitted to this country if he was (as he claimed to be) under the age of 16. The immigration officers were not satisfied that he was under 16 and refused him admission. The Lord Chief Justice held that, even if they were acting in an administrative capacity, they were under a duty to act fairly - and that meant that they should give the immigrant an opportunity of satisfying them that he was under 16. By contrast in the later case of Avtar Singh on 25th July, 1967, (not reported) a Commonwealth citizen said he wanted to come in so as to marry a girl here. He had no right at all to be admitted. The statute gave the immigration officers a complete discretion to refuse. The Lord Chief Justice held that they were under no duty to tell him why he was refused admission and were not bound to give him an opportunity of making representations. If such be the law for a Commonwealth immigrant, it is all the more so for a foreign alien. He has no right to enter this country except by leaves and, if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time. If his permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for the permitted time. Except in such a case, a foreign alien has no right - and, I would add, no legitimate expectation - of being allowed to stay. He can be refused without reasons given and without a hearing. Once his time has expired, he has to go. In point of practice, however, I am glad to say that the Home Secretary does not act arbitrarily. He is always ready to consider any representations that are put before him: as indeed, we are told he is ready to do in these very cases. We know too that Sir Roy Wilson and his colleagues have recommended (in Command Paper 3387) a system of appeals against exclusion of aliens. This may soon become law. But it is not so yet.
The fourth point was, assuming that the Home Secretary was under a duty to act fairly, whether there was any ground for saying that he had acted unfairly. I see no trace of unfairness at all. In his letter at the end of July, he extended their time for two months until the end of September. If they had had any representations to make, they should have made them during that time: but they made no representations. Instead of making representations, they brought this action, claiming that the Home Secretary was acting wrongly. Faced with this action, he quite rightly resisted the suggestion. And his fairness is shown by his readiness still to receive representations.
LORD JUSTICE RUSSELL: I find myself in disagreement with my brethren on the question whether this case is appropriate for the striking out procedure under the relevant rule of the Supreme Court. I am not satisfied that it is thus appropriate, having regard to the well-established approach of the Court to such applications to strike out in summary fashion. This is not to say that I take the view that the points taken for the plaintiff or any of those points will succeed. It is that I think it possible that some one or more might succeed at the trial. It would be unwise, in refusing to strike out, to enlarge upon the reasons for saying that a point might succeed in the trial; to do so, especially in this Court, might fetter the views of the Judge at the trial, and for this reason I say little more. I would not presume to paint the lily of Mr. Hogg's arguments which on certain points have left me with the view which I have stated that this is not a suitable case for summary striking out. I would however say on one point that it is in my view most certainly well arguable that the written reasons given by the Minister indicate a purpose of discouraging the institution at East Grinstead by cutting off its students rather than a purpose of keeping students away lest they do harm. What will happen if these students who are here stay until the point of deportation I do not know; nor do I know whether it will be felt that considerations in connection with a deportation order are different from the considerations applicable to the question as to whether a limited permission to stay should not be renewed. I would therefore allow the appeal.
LORD JUSTICE WIDGERY: I agree with the judgment which has been delivered by the Master of the Rolls and accordingly I also would dismiss this appeal. I think it is vital in this case to recognise at the start that an alien approaching this country and desiring to land has no right of any kind to do so unless and until permission is granted. I appreciate that there is some difference of opinion as to the right under the Prerogative to deport aliens already here, but I do not understand it to be said in any way that the opportunity to land initially is one which cannot be refused arbitrarily, and that position is now made clear, if it was not made clear before, by the Aliens Order of 1953. Accordingly, when an alien approaching this country is refused leave to land, he has no right capable of being infringed in such a way as to enable him to come to this Court for the purpose of assistance, and, since he has no kind of right or interest capable of being infringed or affected, the considerations urged by Mr. Hogg could not affect such a case at all. In such a situation the alien's desire to land can be rejected for good reason or bad, for sensible reason or fanciful or for no reason at all. In my judgment if a reason is given, that reason is wholly irrelevant to the right of the complainant, for the reason that I have given, that he has no such right for which he can claim protection. I also would adopt the words of Lord Reid referred to by my Lord in his judgment, which perhaps I may be permitted to read. They appear in the report of Ridge v. Baldwin (1964 AC 40) at page 65, where Lord Reid says:
"Then there are many cases where a man holds an office at pleasure. Apart from judges and others whose tenure of office is governed by statute, all servants and officers of the Crown hold office at pleasure, and this has been held even to apply to a colonial judge (Terrell v. Secretary of State for the Colonies). It has already been held, I think rightly, that such an officer has no right to be heard before he is dismissed, and the reason is clear. As the person having the power of dismissal need not have anything against the officer, he need not give any reason."
And so the immigration officer can refuse leave to an alien seeking to land even though he has nothing against the alien. Mr. Hogg has reminded us that there are many branches of the law in which giving bad reasons may be fatal to a decision, when giving no reason is a safe course. Those examples, so far as they are familiar to me, are examples of persons who are required to act judicially, but are not required to give reasons, and the best present day example is that of a bench of lay justices sitting as a court of summary jurisdiction. If they return from considering a case and produce a verdict which is consistent with the evidence, but give no reason, their decision is unassailable. If, on the other hand, they come back and give reasons which are invalid reasons, their decision may be upset; but the basis of that result is that they are required to decide judicially as a tribunal, and giving false or bad reasons shows they have not done so. There is no parity between that case and the situation of an immigration officer in dealing with an alien immigrant.
The same principle applies to an alien who is already in this country who seeks an extension of the duration of his landing permit. It is I think important to observe that the terms of Article 3(3) of the Aliens Order of 1953 do not in themselves contemplate an application by the alien. In terms they are a power which the Secretary of State can exercise by notice varying the terms of the landing permit. The variation presumably may be favourable or unfavourable to the alien. No doubt in fact applications for variations are frequently made, as in the present case. But here again the alien who has entered with a permit giving him a period of residence has no kind of right to require an extension of that period. The position is exactly the same as that of a man who takes a lease of a house for three months and wishes to renew it for a further periods the landlord can reject his application out of hand. No question of natural justice or anything of the kind arises, because there is no right in the tenant which can be infringed. So in my judgment if aliens such as the plaintiffs in the present case seek a variation of their landing permits by an extension of the period of residence, they are not asserting a right or . interest capable of being interfered with, and accordingly they are not entitled to the consideration which is implicit in the argument addressed by Mr. Hogg to us today. It is true, as he pointed out in his reply, that in some of the licensing cases there is an indication that a renewal of a licence raises different considerations from the first grant of the licence, and I fully accept that that may be so in cases where renewal is something which can reasonably be expected by the possessor of the licence and where the facts are such that a refusal of renewal is tantamount to the withdrawal of a right which the applicant legitimately expected to hold; but I see no parallel to that in the present case. I see no reason whatever in the Aliens Order to suggest that an alien possessing a permit for a limited period of residence has any kind of right to a renewal; and accordingly when he asks for renewal, there is no obligation upon the Secretary of State to give reasons which are consistent with the legislation or to act fairly or to do any of the other things for which Mr. Hogg has contended in this case. Of course, very different considerations may arise on the making of a deportation order. An alien in this country is entitled to the protection of the law as is a native, and a deportation order which involves an interference with his person or property may raise quite different considerations; but a deportation order is not the matter with which we are concerned and I forebear to say more about it.
I agree with the analysis of the Master of the Rolls as to the reasons for refusal in this case and the propriety of the Secretary of State's action. Whether I should have felt that the position on that aspect of the case was clear enough to strike out the statement of claim is another matter. The factor which forces me to conclude that the learned Judge's Order was right in this case is the fact to which I referred earlier, namely, the absence of any kind of right in the plaintiffs to an extension of their landing permits.
Mr HOGG: My Lord, I cannot, of course, resist an order for costs in these circumstances. I would ask respectfully for leave to go to the House of Lords. My ground would be twofold. The first is that there has been a difference of judicial opinion as between your Lordships and Lord Justice Russell. And the second is that my Lord, Lord Justice Widgery, whilst ultimately placing the weight of his judgment in his last words upon the absence of right, was expressing some doubt as to the appropriateness of the reasons given by the Home Secretary for the striking out procedure. On those grounds I would ask for leave to appeal,
Mr WARNER: As your Lordships know, it is not usual for the Crown to oppose an application for leave to appeal, but in this case I do exceptionally. It will only happen very seldom. The reason is that so long as the case is sub judice it is difficult for the Home Secretary to enforce the departure of these 50 odd people whose presence in this country he considers to be harmful and not in accordance with his policy, and whom two Courts have now held are not lawfully here.
My Lords, the grounds given by my friend for asking for leave are, first a difference of opinion between your Lordships; but, if I may respectfully say so, that is only a difference of opinion as to the application of Order 18, Rule 19, to the circumstances of this case — hardly, I should have thought, a House of Lords point.
As regards the doubt as to the appropriateness of the reasons in this particular case, I would submit that that on which Mr. Hogg also relied is not a House of Lords point either: it merely affects this case.
Mr HOGG: As regards the last part, of course it is a matter entirely for your Lordships to decide; but anything which drives 50 people from the judgment seat, and as to the appropriateness of the procedure applicable to which there has been a difference of opinion in this Court, that is something which it is proper to take further. And as regards the first point in what my learned friend has said, clearly the pendency of judicial proceedings does interfere with the Home Secretary's policy, although I am not going back on what your Lordship has said at all, he has not sought to say that any great public disadvantage will be achieved if these people are allowed to remain a little longer. They are a small number of people and the public disadvantage which emerges was, on the evidence, at any rate, restricted in both extent and its character.
(The Court conferred.)
THE MASTER OP THE ROLLS: Mr. Warner, during the course of the argument I was searching in the Aliens Order for a provision to the effect that if anybody overstays their welcome they were to be deemed to have landed without permission. I got it from a footnote in Halsbury. It appears to have been in the original 1920 Aliens Order and Article 4 of War I. Why it went I do not know.