England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(MR JUSTICE RICHARDS)

		Royal Courts of Justice Strand London WC2 Thursday, 14th June 2001

Thursday, 14th June 2001

1. LORD JUSTICE SCHIEMANN: This is a renewed application for permission to apply for judicial review which had been refused by Richards J in the Administrative Court and was refused on paper by Buxton LJ.
2. The background is that the applicant is a Sikh priest in a Sikh temple in this country and he apparently has strong ties to the Sikh community here. He arrived in the United Kingdom from India in May 1991, was given leave to enter as a visitor for the purpose of a family visit and then in October 1991 an application was made on his behalf for leave to remain here as a minister of religion. That application was refused in 1993; that refusal was upheld on appeal in 1994. It seems that the claimant remained for sometime thereafter illegally in the United Kingdom, but went back to India in late 1996. He returned soon after to the United Kingdom but left once more. In February 1997 he sought to re-enter the United Kingdom yet again, on this occasion as a returning resident, and he lacked the appropriate visa.
3. What happened after that is set out in a detailed letter from the United Kingdom Immigration Service Headquarters dated 18th October 2000 to the claimant's solicitors. The relevant passages are these that firstly the letter indicates that under the Immigration Rules the applicant was required to have a visa to enter the United Kingdom, and he had no visa and, secondly, that he remained illegally in the United Kingdom following the dismissal of his appeal in April of 1994. Those two facts as such are not under challenge.
4. When he came back he presented an Indian passport which was found to contain counterfeit Home Office endorsements. He was refused permission to enter in accordance with the Statements of Changes in the Immigration Rules 395 and that was challenged by way of judicial review. That challenge failed. Thereafter there was an application by his MP requesting that consideration be given to admitting the applicant exceptionally following representations he had received from members of his congregation as his removal from the United Kingdom they said would cause disruption to the Gurdwara. The letter continues:

"In the light of these representations and although the judicial review application was still pending at this time, the case was carefully reviewed by the Immigration Service. During the course of this review enquiries were made with the Community Relation Unit at the Home Office regarding the impact your client's removal would have on the Sikh community. They reported that there were other priests at the Gurdwara who could perform the duties carried out by your client."

5. The letter continues that the the client admitted that he was aware that his application for leave to remain had been refused and the subsequent appeal dismissed in 1994. Nonetheless, he did not question the endorsement in his passport which apparently conferred residency which was dated 2nd February 1993. The point made now is that apparently this applicant is not really fitted by his education to read and understand his passport endorsements and he has not been prosecuted, and that it certainly has not been shown that he was himself was any party at all to procuring the false endorsement of his passport.
6. On 22nd May 2000, the Minister of the Home Office wrote to the MP informing him that the decision had been made to maintain the Immigration Officer's decision, and it is said that "this decision was only reached after careful consideration of the circumstances of the case and further enquiries into the implication of your client's removal on community relations". That was followed by further ministerial representations made by Lord Dholakia on behalf of this applicant, and so the Immigration Service reviewed the case again but maintained the decision notwithstanding. The letter explained that consideration had been given to the implications which the client's removal would have on the Sikh community and that the Community Relations Unit had stated that their advice from 1998 remained valid.
7. So removal directions were set and the present application now seeks to challenge the removal directions which were dated 6th October 2000, and the decision contained in the letter 22nd May 2000, which I have just read.
8. The judge took into account a policy which Mr Juss, who appears for the applicant, had drawn to the Court's attention, which is contained in a letter of the 1st June 1982. The judge accepts for the purpose of his judgment that it had at all material times and continued to have the status of policy. That letter setting out the "policy" says this:

"The fact that under the Rules a person given leave to enter for a temporary purpose has no claim to remain for permit free employment and an application to do so is to be refused does not mean in practice that such applications are inevitably rejected out of hand. Indeed, we institute enquiries in many cases where a person seeks to remain in a religious position even if he was not admitted with the appropriate entry clearance."

9. The letter makes it clear that the Secretary of State recognises that he has a discretion and he takes into account in exercising his discretion as one of the factors the needs as he perceives them of the relevant community. The judge came to the conclusion that he did not think that what was said in the letter was strictly applicable to this case even if treated as an existing statement of policy. He goes on to say:

"...in any event, I do not think that reference to the 1982 letter or to the Secretary of State's residual discretion could get the claimant anywhere in this case. That is because it is plain that the Secretary of State has considered on a very broad basis whether to exercise his discretion in the claimant's favour and has not limited his consideration to the terms of any policy or letter. The 1982 letter is incapable of adding anything of substance to what has, in fact, been considered."

10. Mr Juss says that there is an arguable case fit for proper investigation as to whether the Secretary of State has correctly applied his own policy in relation to this case. It has to be borne in mind that the background to this is that there are Statements of Changes in the Immigration Rules approved by Parliament which set out the broad policy. The policy in relation to exceptions, if I may put it that way, is made by the Home Secretary from time to time, or indicated by him, but one has to bear in mind that these are exceptions that he makes to the broad policy, and the exception that he agrees to make in these cases of religious priests is to look at the matter notwithstanding that there is an absence of the appropriate entry clearance. That, as it seems to me and as it seemed to the judge, is something that the Secretary of State has clearly done and therefore he has complied with his policy. That is subject to various points that are now made in the applicant's skeleton argument.
11. It is said that the Secretary of State in refusing this man permission to stay has been unduly influenced by the smell of fraud which surrounded his latest application, and it is unfair to hold it against this man that he happened to be in possession of a passport which had false endorsements. One can see the force of the point, but again one has to consider it in the context of a case where it is urged that an exception should be made to rules approved by Parliament. It is suggested that what has happened here amounts to doubtful penalisations. My attention was drawn to a whole series of cases which indicate that an illegal entrant is not an outlaw. That is all very much so, but no penalty is being applied to this man. All that is happening is that the Secretary of State refuses to exercise a discretion in his favour.
12. The other point that is made is that the Secretary of State did not make sufficient enquiries of the Gurdwara in order to be satisfied that the advice he was getting from the unit in the department which was concerned with giving the advice was accurate. That is a matter for the Secretary of State, how much effort he wants to make and what has been done. We do not have the details, and now it is said by Mr Juss that he does not have the details, and it is unfair that he cannot see that the Secretary of State did a good job. One can see the force of that, but on the other hand again we are looking at a situation where an exception is being made.
13. The Secretary of State has said he has made enquiries, and like every other judge who has looked at this case I can see no reason for saying that the Secretary of State has gone outside the law in applying the rules which Parliament has laid down in relation to persons in the applicant's situation and in not making an exception in his case. I see no reason to suppose that there is any chance of any successful appeal. Therefore this application is refused.
(Application for permission to appeal refused)