England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(CROWN OFFICE LIST)

MR. JUSTICE WOOLF: This is an application for judicial review. It is an application for an Order of Certiorari by Mr. Shafat Shiekh to quash a decision of the Secretary of State. It is a case which I should any straight away is unique so far as my experience goes because I have grave reservations as to whether the decision I am being invited to quash is a decision capable of being quashed.

The reason that I come to the conclusion, as I will explain hereafter, that I have decided that the Applicant is entitled to relief is because of an issue which has been isolated for me in the case in consequence of the history which has occurred with regard to the previous litigation not in regard to this Applicant but in regard to this Applicant's brothers. The matter is complex indeed.

I will just set out the basic facts with regard to this Applicant. He initially came to this country, having been born in India but a citizen of Pakistan on 5th March, 1943. He arrived in this country on 18th October, 1971. At that time he came as a visitor for six months to visit his elder brother, Hr. Rais Ahmed Shiekh, who was already settled in this country.

His leave was extended from time to time quite properly, and there is no dispute about that. he joined the Inner Temple and became a student of the Bar in June 1972. Notwithstanding his interests in the Bar, he became a substantial businessman because he realised there were opportunities for the exporting of goods from the United Kingdom to Pakistan.

After he had been here some time he obtained what can be described as two further leaves. First Of all, on 26th June, 1975 he was granted a 15-month extension to take his stay to 18th October, 1976. Secondly, he received unconditional leave on 15th April, 1976. The extension granted in June 1975 to October 1976 is of some significance because its effect was to mean that he would have been in this country for five years. I draw attention to that matter because of what I have to say hereafter about that particular extension.

The position from the Applicant's point of view of having unconditional leave was very satisfactory. It meant then that he was to be regarded as somebody settled in this country, and if that leave was a valid unconditional leave it meant that he could come and go from this country as and when he liked knowing that he would be entitled to return each time. He did leave the country on a number of occasions and did return. Those subsequent departures and returns are not relevant to the issues with which I have to deal.

Subsequent to the Applicant getting his unconditional leave it became apparent that the official who had granted him unconditional leave, and had granted him the leave for the period of 15 months, had been Mr. Kinnest, a Home Office official, who had been engaged in corrupt practices. He had been in league with one of the Applicant's brothers, and in consequence of that in due course the official was prosecuted for acting corruptly contrary to section 1 of the Prevention of Corruption Act, 1906, and he was sentenced to a total of three years' imprisonment. Among other things, he had been taking bribes.

In addition, the Applicant's brother, who was in league with him, pleaded guilty and was dealt with but in a more lenient manner to the official, and he did not go immediately to prison. Because of the fact that the leaves which were given to the Applicant for 15 months and unconditional leave were given by Hr. Kinnest corruptly when he must hero known that the Applicant was not entitled to such leave, it is not argued before me by Mr. Friel on behalf of the Applicant that those leaves are in themselves valid. He accepts before me (and I put it in that way because he reserves his position if and in so far as it is necessary so to do in a higher court) that those leaves are invalid, and he does not seek to challenge what has since happened on the basis of those leaves in themselves.

In consequence of the detection of the criminal conduct of the official and the Applicant's brother, steps were taken to remove a number of members of the Applicant's family as being persons who had no right to remain in this country.

In so far as the present Applicant is concerned, by letter of 23rd February, 1981 it was stated by the Home Office in relation to the Applicant and the brother who was party to the criminal conduct that there was no question of the Home Office conceding that there was an absence of guilty knowledge. The letter goes on to say: "Anwar was, as you will recall, convicted in the Criminal Court, and we have evidence that Shafat admitted to a police officer that Anwar had offered to arrange revocation of his conditions). We shall accordingly be making arrangements for their removal."

Because of the unusual situation that had arisen, when two beneficiaries of a leave granted corruptly challenged in the Divisional Court the right of the Home Office to remove them, the cases were dealt with on two different bases. In the case of Maqsood the Home Office through their Counsel conceded that he had no knowledge of the corrupt practices which had occurred and which had resulted in his being granted leave. In the cave of another Applicant who had also been the beneficiary of a leave granted corruptly by the same official, namely, Shabeeh-El-Hassan, a different course was taken. It was contended that he was aware of the corrupt practice.

So far as Shabeeh-El-Hassan is concerned, I do not need to consider his case any further because he was dealt with on the basis that he did have knowledge, and on that basis it is not surprising that both the Divisional Court and the Court of Appeal were of the view that he was not entitled to relief The situation with regard to the brother Maqsood is different. Lord Justice Donaldson, at any rate, one of the members of the Divisional Court in that case, was firmly of the view that, even though he had no knowledge, on the basis of a concession made by Counsel for the Home Secretary of the corrupt practices, he could not take advantage of the leave that had been obtained.

The other member of the court, Mr. Justice Forbes, approached the matter in a different way from that adopted by Lord Justice Donaldson and at least considered what would be the position if there had been a proper application by Maqsood and that application, without his being party to the corrupt practices, had been granted corruptly by the official. With regard to that situation, Mr. Justice Forbes, applying well known principles of agency, said (at page 13F of the transcript of the judgment given on Friday, 14th November, 1980): "While I am satisfied that there is no rule of law to which we have been referred which should relieve the Home Secretary from being bound by the acts of his officers, even though fraudulent, in common with other principals who employ fraudulent agents, I do not think this is the end of the story. If Maqsood had applied for unrestricted leave to remain and obtained it in the circumstances of this case I would have had no hesitation in holding that the Home Secretary was bound to treat him as a person with unrestricted leave. But he did not so apply. His own statement shows that he applied for leave to engage in business."

However, although Lord Justice Donaldson and Mr. Justice Forbes differed in their approach with regard to the consequences if there had been a proper application for leave by Maqsood, they both took the same view which was the basis of the decision of the court. They were of the view that, if a situation arose where fraudulent conduct of the sort to which I have referred had occurred and a person had unknowingly been the beneficiary of that fraudulent conduct, then the Home Secretary in exercising the fairness which was to be expected of a Secretary, of State would at least consider their position before deciding to take the action which otherwise would be the normal consequences of leave having been obtained by fraud.

The way Lord Justice Donaldson dealt with the matter at page 6 of his judgment was as follows: "But, as I say, in my judgment, it has no direct application. I think that the key to the way in which this application should be treated is to be found by considering the actions of the Secretary of State in this cave in terms of the obligation to act fairly with all its concepts of natural justice- What he does within the limits set by those concepts is of course entirely a matter for him. I entirely accept that the starting point m must be that the Kinnest leave and the subsequent leaves were wholly void and that as a matter of law Maqsood was an overstayer from the 31st July, 1975 when his last validly obtained leave expired until he left this country in 1976."

The the learned Lord Justice refers to the decision of the Court of Appeal in Ibrahim and goes on to say: "I find it very difficult to believe that the Secretary of State would have acted as he has done in Maqsood's case if, for example, a Home Office official had become insane and issued large numbers of immigrants with unconditional leave. The Secretary of State might well have repudiated those leaves, and indeed I think he would have been right to do so. But I find it almost inconceivable that he would have treated them all as overstayers, and, if they had left the country and returned, he would have treated them as illegal immigrants. Yet, from the point of view of Maqsood, there really is no difference between those two cases once it is accepted, as it is, that he is completely innocent, and once the Secretary of State has disclaimed any reliance upon Maqsood having held Anwar out as his agent. In the hypothetical case of the insane Home Office official, I have no doubt that the Secretary of State would have sought to put those unfortunate immigrants in the position they would have been in if the aberrant leaves had never been issued and would also have taken account of any change in their position which had occurred as a result of their reliance upon those leaves.

"This, in my judgment, is what should have happened in Maqsood's case. To put it at its very lowest, this, as I think, is a course of action which the Secretary of State should have considered before making the order which he has made here detaining Maqsood as an illegal immigrant."

Mr. Friel on behalf of the Applicant says that the present Applicant is in no different position from hi. brother Maqsood and the Home Secretary should have carried out the function indicated by Lord Justice Donaldson as being the proper one in the case of his brother.

The decision of Lord Justice Donaldson and Mr. Justice Forbes went to the Court of Appeal, and the Court of Appeal gave judgment in the matter on 20th July, 1981 (unreported other than a short report in The Times newspaper). But I do not need to consider the Court of Appeal's decision because it did not deal with the position of Maqsood.

Mr. Friel says that in this case, if the Secretary of State had adopted the approach required by Lord Justice Donaldson's approach in the Divisional Court, his client should not have been placed in the position indicated by the letter to which I have referred of 23rd February, 1981. That letter was in fact an attempt by the Secretary of State to take the course indicated as being appropriate in accordance with the decision of the Divisional Court in the case of Maqsood. It did not lead to the same result as in Maqsood's case because the Home Secretary took the view that, unlike Maqsood, the Applicant was tainted by knowledge of the corrupt practices. So the first matter on which Mr. Friel relied was an argument to the effect that there was no material before the Secretary of State on which he could reasonably come to the conclusion that his client had knowledge of the corrupt practices.

A second argument was advanced that the requirements of fairness oblige the Home Secretary to give the Applicant a better opportunity than he had of dealing with the position before the Secretary of State came to his conclusion.

Turning to the first point taken by Mr. Friel, that is a conventional method of challenging a decision of the Secretary of State. Mr. Brown is content that I should decide this case on the basis of whether or not the Secretary of State had material before him which entitled him to conclude that the Applicant had knowledge of the impropriety which had occurred in relation to his being granted the relevant leaves. He does, however, reserve the position should the cave go further to argue that in any event the decision which Lord Justice Donaldson identified in the Divisional Court was not one which was justifiable.

I can understand that that matter could be the subject of further argument. I, however, am not called upon to give any opinion upon it because the decision of the Divisional Court is binding upon me. Approaching the matter therefore as agreed by Mr. Brown that the proper approach for me to adopt is to ask myself whether there was sufficient material on which the Secretary of State could come to the decision which he did, I proceed to examine that material.

Suspicion there is in abundance. Applying common sense, it is easy to draw the conclusion that, if one brother was fully aware of corrupt practices, it could well be that the other brother was also aware, particularly when he, like other members of his family, is the beneficiary of those corrupt practices. However, in my view, it would be unreasonable for the Secretary of State to act on suspicion alone, and in my view there is nothing more than suspicion on the material which is before me.

Mr. Brown, with his usual economy of argument, identified the precise matters that could be said to be the basis of a finding of guilty knowledge on the part of the Applicant apart from the general circumstances of suspicion. They are two in number. First of all, when the Applicant was interviewed by the police he was asked: "Did your brother ever discuss with you his contact with the Home Office?" The answer was: "He never told me about money or anything but he did tell me he had had his done and could get mine done." He was asked: "Did you know about your brother arranging your sister's passport?" The answer was: "No, I didn't discuss this with him at all." Those passages appear at pages 17 and 18 in the Respondent's bundle of documents.

I can understand why Mr. Brown drew attention to that passage, but, looked at in the context of the whole interview, as in my view it should be looked at, it does not seem to amount to very much to me.

Quite apart from an official who is being corrupt, it is possible for there to be an official who is sympathetic -- sympathetic with propriety. The remarks to which I have referred would be equally consistent with a brother having found an official who had considered his case, as an official would have to if he applied for an extension of leave, and had dealt with the matter sympathetically. What the Applicant was doing throughout that interview was denying that he had any knowledge about anything of a corrupt nature which was happening.

The second matter that was relied upon we the fact that in respect of both the leaves which are attacked as being ones tainted by the corrupt action of the official the decision was one which no Home Office official could with propriety have reached under the immigration rules. If someone with the experience of advocates frequently engaged in this work was to be granted leave in these forma and in these circumstances, of course he would appreciate immediately that there was something awry. Of course he would know, because he would be familiar with the immigration rules, that to get 15 months' leave is something which is extremely surprising because it is the invariable practice not to grant more than 12 months if limited leave is given, and certainly not to give a period such as 15 months, which would cause five years to expire. Equally, he would know that to get unlimited leave subsequent to that would be a surprising thing without full investigation being made.

But although the Applicant deposes to the fact that he is a Member of the Inner Temple, I cannot infer from that that he is familiar with the immigration rules. Indeed many Members of the Bar would have no knowledge whatsoever of the immigration rules, and I do not feel it right to regard the fact that the Applicant was granted unusual leave as being something which should be taken to indicate that he must have had knowledge of impropriety.

The Applicant was someone who could rightly regard himself on the material before me as having done well in this country. He had established a successful business over a very short period of time and, behaving quite reasonably, he could think that the way he had behaved justified his receiving special consideration. No doubt he would be delighted by what his brother had achieved, but the passports were returned to him through the post, and I would not be prepared to regard the material to which I have already made reference as anything more than also somewhat in the sphere of suspicion.

Approaching the matter objectively, it does not seem to me that anyone could reasonably conclude on the material before me that the Applicant was a person who had knowledge of the criminal conduct of his brother. Of course the brother might have taken the view that there would not be any harm in letting the Applicant know of what he had done improperly. On the other hand, his view of his brother might have been that that would be the last thing to do because his brother would take the gravest exception to it. I do not think that the Secretary of State, even approaching the matter as a man of the world, as of course he should, is entitled to infer that because a member of one's family is engaged in corrupt practices all other members of the family should be taken to be aware of what the corrupt brother is up to. On that basis, and on that basis alone, which is sufficient to decide this case, I am prepared to grant the relief in question.

I cannot, however, depart from this case without indicating in my view that in matters of this nature it is unfortunate that, by way of concession, an approach was adopted to one brother which is not applied to the Donaldson's other brothers in the same position, because (as appears from Lord Justice judgment in this case) there were circumstances of suspicion in relation to the brother in respect of whom the concession was Bade, and, one brother having been treated in that way, one could well understand that there would be a sense of grievance if another brother is treated differently. Of course the fact that the Home Secretary has chosen to make a concession in the case of one does not bind him in respect of the other.

But in my view, if the matter goes back for reconsideration by the Home Secretary, it seems to me that justice does require the consideration of the propriety of treating two brothers in respect of whom the case probably was very similar differently, albeit that there was very good reason from an administrative point of view to take the course that was taken in the Divisional Court. It was very useful to have a decision of the Divisional Court on two different bases, but it does not follow from that that, having chosen to single out one brother, it is right to treat the other brother in a different manner. One brother may have been fortunate, but the other brother who is not so fortunate, if he has to leave this country in due course, is going to feel that he has been very unfairly treated whatever may be the truth of the matter.

MR.FRIEL: My Lord, I think I should ask your Lordship in relation to the order "ought. I think that would be in terms of paragraph 2 of the statement sub-paragraph (ii). I think I might be asking for too muchthere. I would like your Lordship's guidance on that- I think that it reads well up to the name of the brother Anwar Shiekh, but I think, obviously bearing in mind the terms of the judgment of the Divisional Court, the lines "and by reason thereof the Secretary of State was entitled to treat him in the same manner as his brother Anwar Sheikh and remove him from the United Kingdom" are unnecessary verbiage.

MR. JUSTICE WOOLF: I would have thought so. It should be "to quash a decision made by the Secretary of State for Home Affairs on the 23rd day of February 1981 that the Applicant was well aware of the criminal acts of his brother Anwar Sheikh". Would that suffice?

MR. BROWN: I would have thought that that was exactly right.

MR. FRIEL: So far as the rest, they do not apply. I would also apply for costs.

MR. BROWN: I cannot and do not resist that.

MR. JUSTICE WOOLF: Very well.