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Cite as: [2002] EWCA Civ 100

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Harris, R (on the application of) v Secretary of State For the Home Department [2002] EWCA Civ 100 (14th February, 2002)

		Neutral Citation Number: [2002] EWCA Civ 100
		Case No: C/2001/1297/QBACF

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (ADMINISTRATIVE COURT)
(Mr Justice Collins)

Royal Courts of Justice
Strand,
London, WC2A 2LL

14th February 2002

B e f o r e :

LORD JUSTICE MAY
SIR ANTHONY EVANS
and
SIR DENIS HENRY
____________________

	Regina (on the application of Darrel Eval Harris)
	- and -
	Secretary of State for the Home Department

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

R Tam Esq & T Eicke Esq (instructed by Treasury Solicitors ) for the Appellant
A Riza Esq, QC (instructed by Messrs Hackmans) for the Respondent
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Lord Justice Henry:

The claimant, Mr Harris, a citizen of Jamaica, was born in 1951 and came to this country in 1966. He has lived here ever since. We are here concerned with the effect, if any, on his immigration status of a return to Jamaica for the first month of 1998 to see his father who was dying (and in fact died soon after the visit).

The performance of that filial duty led to this case. As we will see, the Immigration Act, 1971 conferred two benefits on the claimant. First, section 1(2) gave him the right to settle here with indefinite leave to enter and remain. Second, section 7 provided him with certain protections against deportation for the commission of criminal offences given to Commonwealth citizens who on 1^st January 1973 were then ordinarily resident in the United Kingdom. Mr Harris’s considerable criminal record made him someone who had need of that protection.

Under the scheme of the Act, section 3(4) provided that when the claimant went to Jamaica, which was outside the common travel area, his deemed leave to enter and remain lapsed, and the immigration officer refused him leave to enter, that refusal being based on his criminal record. He challenged this refusal by way of judicial review, the matter coming before Mr Justice Collins on 13sth March 2001 when he found for the claimant and quashed the refusal to grant leave to enter. Mr Harris was represented by Alper Riza QC, and on the principal point the judge found as follows:

“Mr Riza’s point is, so far as domestic law is concerned, simple. He says that the Secretary of State would have been unable to remove the claimant from this country as a result of his offending. He was given that protection by section 7 of the Act. He left this country after having been here for some 31 years of so in order to visit his sick father’s death bed. He was out of the country for one month. This meant that he never ceased to be ordinarily resident in this country and it was only because section 7 does not apply to someone seeking leave to enter whose leave had lapsed as a result of the provisions of section 3(4) that the Secretary of State was enable to use the rules effectively to remove him. It is true, of course, that it was not a removal as such: it is a refusal of leave to enter; but the effect is the same. This, submits Mr Riza, is manifestly unfair, and furthermore it conflicts with the purpose of the Act, which one must deduce from Parliament’s decision to enact section 7(1) and to give this extra protection to persons such as the applicant who are deemed to be settled here pursuant to section 1(2). In those circumstances, if Parliament decided that they ought not to be removed as a result of their conduct, it would be wrong to refuse them leave to enter following a short visit abroad on the basis of the same conduct, that is to say matters which could not have led to their removal. Mr Riza accepts that there might be a difference if the Secretary of State were relying on subsequent misconduct. The example he gives is that on return he is discovered to be trying to smuggle into the country a quantity of drugs. That might be a reason for making use of paragraph 320(19) of the rules. But it would be quite wrong to seek to make use of the very conduct which could not be used to remove him. What essentially he submits is that if it is manifestly unfair then it must be perverse.

The rule, as I have said, is not absolute. There is, he submits, undoubtedly a discretion inherent in the used of the expression ‘should normally be refused’, and that discretion ought to be exercised in favour of someone such as this claimant because of the provisions of sections 1(2) and 7(1) of the 1971 Act. At the very least, submits Mr Riza, it is plain from both the decision letters - because there have been a number of them as further representations were made culminating in the witness statement of Mr Thompson - that no regard has been made to the existence of that discretion, or more importantly, to what should be derived from section 7. What Mr Thompson says about that is set out in paragraph 25 of his statement, which reads:

‘The Secretary of State also acknowledges that section 7 of the Immigration Act 1971provides protection against deportation under section 3(5) of the Immigration Act 1971 for Commonwealth citizens who were ordinarily resident in the United Kingdom at the coming into force of that Act. However, the Secretary of State has been advised and believes that section 7 is expressly limited to “deportation” under section 3(5) of the Immigration Act 1971 and therefore does not apply to decisions refusing leave to enter the United Kingdom under section 3(1)(a) of that Act. Consequently, [when] the applicant arrived at Heathrow Airport on 30^th January 1998 he, like any other returning resident, was subject to the requirement for leave to enter.

So far as it goes, that is clearly correct as a statement of law. But what [it] fails to take into account is that there is, or should be, some effect upon the exercise of the discretion under the rules resulting from the position produced by section 7. And that, it is plain, has not been taken into account by the Secretary of State or his officers at any material time in considering this case. It is plain in my view that it should have been. I would, on the face of it, be unfair to make use of this provision when it would have been impossible to use it had the claimant remained in this country. The result is, as Mr Eicke acknowledges, that if someone in the position of this claimant took a day trip to Calais he would find himself liable to be refused leave to return to the United Kingdom. Equally, as it seems to me, when one is considering exceptional or strong compassionate reasons it is necessary to look to see why he left this country; why it was necessary, if it was, for him to leave the jurisdiction. Here it was to visit his dying father. That, as it seems to me, is clearly a compassionate circumstance; and it was only because he did that that he laid himself open to the possibility of effectively being removed from the country in which he had lived for all adult life since he was 15 years old - some 31 years in all. As it seems to me, that failure by itself is sufficient to strike down this decision because it has failed to have regard to what is plainly a material consideration.

Mr Riza’s submissions would have me go further and effectively decide that the circumstances compel a different conclusion and that it would be perverse for the immigration officer to refuse leave to enter in circumstances such as this . He says that effectively he is imprisoned in this country; provide he does not leave this country there is nothing that can be done - it is only if he leaves.

Mr Eicke counters that by saying that he did not have to commit offences; he chose to do so and thus laid himself open to the possibility that if he did leave this country he would find himself refused leave to return. The point is made that he could have applied for naturalisation under the British Nationality Act. No doubt he could. He might have found the convictions a bar. But he did not, and there is no particular reason why he should have done. It seems to me that he was entitled to rely upon the protection apparently given by Parliament in section 7 and to expect that that protection would be a factor that was taken into account when any decision was made on leave to enter as a returning resident should he decide to travel outside the common travel area.

Indeed, it seems to me that if one looks at the circumstances of this case it was perverse for the decision which was reached to be made. There was nothing other than the commission of the offences which would not and could not have resulted in his removal that was relied upon by the immigration officer in refusing him leave to enter. That being so, as it seems to me, when exercising his discretion if he had properly considered section 7 he would have been bound to say to himself, ‘I know that he could not have been removed for these offences. I am considering whether he should be refused leave to enter in the exercise of my general discretion under the relevant paragraphs of 320 based upon these offences which could not have led to his removal. In those circumstances there really is only one thing that I can properly do’ In my judgment the only thing that he could properly have done in those circumstances was to allow him to re-enter this country.”

The judge then went on to deal with alternative way the case was put under Article 8 of the Convention and proportionality. He concluded:

“When considering whether it is necessary in a democratic society one has to ask, as the Strasbourg jurisprudence makes clear, whether it is justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued. That quotations comes from a decision of the European Court of Human Rights in Beldjoudi -v- France 14 EHRR 801 at 833 (para 74 of the judgment). Were it not for section 7 of the Act it may well be that this could be justified.

Mr Eicke has referred me to Dalia -v- France which was decided on 19^th February 1998. It is not necessary to go into the details of that case. Suffice it to say that for those convicted of drugs offences it will be very difficult to maintain that the right to family life under Article 8.1 outweighs the need to remove on the basis of the prevention of disorder or crime. But, as it seems to me, one is back to section 7. That is a factor that has very much to be taken into account. And when one adds that in it is very difficult in my judgment, indeed I would go as far as to say impossible to say that that the exclusion is justified. Parliament decided that it was not justified: notwithstanding the convictions, the individual could not be removed from this country. It is very difficult to see how it could be necessary for the purposes of Article 8.2 simply because he chose to visit his dying father in Jamaica. In those circumstances, as it seems to me, it would be quite impossible to rely on Article 8.2. Not only am I satisfied that this decision cannot stand, but I go further and declare for the reasons I have given, that the only possible result must be that leave to enter is granted.”

Accordingly, the applicant succeeded in quashing the refusal of leave to enter.

There is a preliminary hurdle before the substantive points are reached. In this case permission to appeal to this Court was required, and application for that permission was made to the trial judge on the same day as the judgment (13^th March) by counsel instructed by the Treasury Solicitor. This was good practice despite the fact that (as will be seen) the Secretary of State had not then decided whether to appeal. When dealing with the advantages of first applying to the trial judge immediately after delivery of judgment, the commentary of Civil Procedure, Volume 1 Autumn 2001 at 52.3.6, page 983 state:

“Despite the lack of compulsion, a litigant with arguable grounds for appeal would generally be well advised to apply for permission for four reasons: a) the judge below is fully seized of the matter and so the application will take minimal time. Indeed the judge may have already decided that the cases raises questions fit for an appeal. b) An application at this stage involves neither party in additional costs; c) no harm is done if the application fails. The litigant enjoys two bites at the cherry. d) No harm is done if the application succeeds, but the litigant subsequently decides not to appeal.” (emphasis added)

Collins J refused permission to appeal, on the grounds that the appeal had no real chance of success. No application was made to him to extend the time for appealing, and he did not do so. That then triggered the timing for delivery of the Appellant’s Notice. Rule 52.4 provides that where the appellant seeks permission to appeal from the appeal court it must be requested in the Appellant’s Notice, and where, as here the lower court had not directed a longer time, that notice must be filed within 14 days of the decision of the lower court which the appellant wishes to appeal. The commentary points out that the brevity of the 14 day limit

“… reflects a clear policy decision in favour of finality. Any party seeking to challenge a judicial decision must move with expedition. In the immediate aftermath of the judgment below both the party and his advisors are fully seized of the case. They can be expected to formulate any ground of appeal without delay. The Civil Procedure Rules Committee has firmly rejected the recommendation in the Bowman Report (Chapter 7, paragraph 7) that six weeks should be allowed for commencing appeals against final decisions.” (Civil Procedure, Volume I, Autumn 2001, 52.4.1 at page 986).

On the question of extension of time, Rule 52.6 provides:

“52.6-(1) An application to vary the time limit for filing an appeal notice must be made to the appeal court.

(2) The parties may not agree to extend any date or time limit set by -

(a) these Rules;

(b) the relevant Practice Direction; or

(c) an order of the appeal court or of the lower court.”

The commentary on this rule reads:

“52.4.2 If a party has good reason for seeking a longer period in which to appeal, he should apply to the lower court on the occasion when judgment is given. An example of a good reason for seeking a modest extension of time may be that the appellant (through no fault of his own) has an unwieldy decision making process, such as a Board of Trustees which needs to be convened. Another example may be that national holiday period is about to begin.

52.4.3 If an extension of time is needed beyond the period specified by the lower court (or beyond the 14 day period mentioned in Rule 52.4(2)(b)), then the appellant should apply to the appeal court (see Rule 52.6(1)). The application must be made in the Appellant’s Notice. See paragraph 5.2 of the Practice Direction. The Notice should state the reason for the delay and the steps taken prior to the application being made. The respondent has a right to be heard on this application. See paragraph 5.3 of the Practice Direction. This perilous course for appellants emphasises: (a) the important of complying with time limits in the first place; b) the wisdom of applying prospectively to the lower court for any extension of time which really is necessary.”

Those then are the Rules, and the tight regime they impose. We turn to look at what happened. Here the Treasury Solicitor was acting for the Secretary of State. The conduct of the case was in the hands of Mr Benney, a barrister in the employ of the Treasury Solicitor. It is his witness statement which the Secretary of State relies on.

The judgment was given (and permission to appeal refused) on 13^th March 2001. From the moment of that refusal, the time for filing the Appellant’s Notice would expire on 28^th March. Mr Eicke, counsel who had argued the case below, provided that advice to Mr Benney on 20^th March, and it was forwarded by him to the Department that day. At some time between that day and the expiration of the time for applying, eight days later, the Department advised Mr Benney:

“… that the decision whether to seek permission to appeal would be discussed at Ministerial level and no decision was likely to have been made in time to make a timeous application to the Court for permission.”

By “timeous application”, the Department would have meant an application received prospectively before time for filing the Notice on 28^th March expired. No such application was made. No reason for not making any such application to the Court is given.

It seems that Mr Benney took the decision himself not to apply for permission before the basic time limit expired. But 14 days after time expired, on 11^th April, he discussed with counsel the “possibility” of making an immediate application for permission and an extension. There was no obstacle to making an immediate application. Better to have made one then than two months later, when the Appellant’s Notice was finally filed. The only additional fact that we are told as to the background of that decision is that Mr Harris’s solicitors were “pressing … for his immigration status to be regularised”. This was entirely predictable, as the effect of the decision was to debar him from the country where he had spent all his life since the age of 16.

On 11^th April Mr Benney consulted counsel, and they agreed on a course of action which is not altogether clear to me. I quote from paragraph 3 of Mr Benney’s affidavit:

“On 11^th April I discussed with counsel the possibility of making an immediate application for permission and an extension of time. We agreed that although any application for leave to appeal (which was already late) should be made as soon as possible there was little merit in making an application which might well turn out to be premature and redundant.”

Application for permission and extension of time should have been made that day. There was no case for postponing at all, let alone until 24^th May, when the decision to appeal was finally taken. It was not “premature” to appeal prospectively. And once the appeal could no longer be made in time, then the later it was left, the worse the prospects of the extension being granted.. Nor was such an application “redundant”. Neither part of such application was superfluous. Neither epithet justifies not applying within the 14 days.

It seems to me that all parties have an interest in early decisions on whether to appeal. Looking at the general picture, the successful party is entitled to know at the earliest reasonable time whether the judgment he has obtained is to be challenged. And when dealing with immigration matters, as the right to continue to live in this country is affected, that is likely to be particularly true. At the same time, the Department has a clear interest in the early despatch of immigration appeals, which are often criticised for the delays they bring. It is an area where the Department, who is often the respondent, should from every point of view assist and set an example in the prompt disposal of such appeals.

Obviously, there is nothing wrong in the Department forming the view that the problem required Ministerial discussion, and it is not surprising if that means that the actual decision will not be taken until after the 14 days allowed by the Rules. But that is no reason for not applying prospectively, with a realistic extension being sought. If it is then clear by what date the appeal can be lodged, then applications for extension of time and permission to appeal can be heard together. The appellant (and a fortiori if the appellant is the Department) can then put its proposed timetable before the Court, the body responsible for reflecting the will of Parliament as to the tempo of such proceedings.

Taking this case by way of example, a number of things seem clear. The Department’s initial response cannot be faulted: within seven days they taken advice on the merits of an appeal in this case, and had also recognised that the fact of Ministerial intervention might mean that decision whether to appeal might not in the ordinary course of things be taken within the appeal period. But from then on they acted as though the new appellate Rules and the new appellate tempo were not in place. First, they did not pass this information on to Mr Harris’s solicitors until 11^th April, two weeks after their time to appeal expired. Second, proceeding at their chosen pace the Appellant’s Notice was not ready until it was filed, 77 days out of time (which we are told was on 12^th June, though the Appellant’s Notice is undated). It seems to us perfectly clear, on the evidence before us, that had the Department prospectively applied before the time for appeal had passed, for an eleven week extension to a two-week period for appealing, such an extension would have been rejected out of hand, and a much shorter extension period fixed by the Court. In all the circumstances, there was no good reason for the Department’s failing to apply for an extension of time before time expired, and equally no good reason now for granting an extension which the Department did not trouble to seek, but simply took. In our judgment, there simply are no grounds for frustrating the plain Parliamentary intention to ensure prompt appeals on final judgments. There is no good reason here for any healing extension.

Accordingly, we do not grant any extension of time, and refuse permission to appeal. So the substantive issue does not arise. However, the matter was argued before us, and having heard those submissions we remained of the view that Mr Justice Collins was right for the reasons he gave.

Sir Anthony Evans:

I agree.

Lord Justice May:

I agree that the application for extension of time and for permission to appeal should be refused for the reasons given by Sir Denis Henry.

Order: Application for extension of time and for permission to appeal refused; Defendants do pay claimants costs; costs to be subject to detailed assessment if not agreed. (Order does not form part of the approved judgment)