England and Wales High Court (Administrative Court) Decisions

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

MR JUSTICE SEDLEY: In this case the applicant has sought special leave to remain in the United Kingdom, notwithstanding the refusal of his application for political asylum. A special adjudicator found that he had a well founded fear of persecution but not for a Convention reason. The Immigration Appeals Tribunal upheld this decision but, on the basis of their findings of fact, recommended to the Secretary of State that he should give the applicant special leave to remain in the United Kingdom.

The Secretary of State has considered the application in the light of the recommendation and in the light of the European Convention on Human Rights, as Miss Webber on behalf of the applicant accepts, but has declined to grant special leave. Miss Webber seeks leave to move for certiorari to quash the Secretary of State's refusal on two grounds which she has developed before me, although there are also other grounds on her form 86a which she has not necessarily abandoned. The two grounds are: first, that it is not enough that the Secretary of State has regard to the European Convention on Human Rights, if without adequate justification he then violates it, as she contends he has done here. Secondly, that the letter of refusal is wholly silent as to why the Secretary of State does not accept the very thing that led the tribunal co make its recommendation; namely that on its view of the evidence it was not prepared to accept that the Colombian authorities could protect the applicant from killing or attack by the drug cartels. Because, having reflected briefly on the excellent arguments which have been put forward respectively by Miss Webber and by Miss Rose for the Home Office, I propose in this case to grant leave, I will confine myself to saying in very short form why I am taking this course.

First, I do not accept that the prohibition in the Bill of Rights, Article 10, which forbids cruel or unusual punishments and on which Miss Webber founds, has any tenable place in the present argument. While I have no difficulty in accepting the justiciability of a violation of a Bill of Rights, I do not think the word "punishment" in able to be extended by any process of construction to include a process which, however hard it bears on the individual, is not designed to penalise him.

However, there remains the question of the European Convention. Although in the case of Brind [1991] AC 696 the House of Lords decisively rejected both the implied incorporation of the European Convention and proportionality as a canon of judicial review, they reaffirmed the Wednesbury test of the lawful exercise of executive discretion. In a brief speech concurring in the dismissal of the appeal as as proposed by the remainder of their Lordships, Lord Templeman at page 751 added:

"It seems to me that the courts cannot escape from asking themselves whether a reasonable Secretary of State, on the material before him, could reasonably conclude that the interference with freedom of expression which he determined to impose was justifiable. In terms of the Convention, as construed by the European court, the interference with freedom of expression must be necessary and proportionate to the damage which the restriction is designed to prevent."

The second of those two sentences is, no doubt, so contrary to the reasoning of the other members of the House, that short of a possible decision by the House pursuant to its 1966 Practice Statement to reverse its own decision in Brind, any argument based on it must in this court be deemed hopeless. But the first sentence of the two I have quoted does, it seems to me, offer the applicant a window of jurisprudence which is capable of casting a different light from the simple Wednesbury doctrine on the relationship between, on the one hand, the right to protection of life by law (Article 2 of the Convention) and the prohibition of inhuman treatment (Article 3 of the Convention] and on the other hand the rigorous and anxious decision making process, as Miss Rose readily accepts it is, which is involved in the exercise of an administrative discretion capable of resulting in an invasion of those rights and protections of the individual concerned.

The test propounded by Lord Templeman in the first of the two sentences I have quoted, is not, it seems to me, either the received Wednesbury test or,the European proportionality test. It may best be viewed as a refinement of the Wednesbury test for the purpose of ensuring, not merely that account is taken of the United Kingdom's treaty obligations in the field of Human Rights, but that the decision maker in doing so consciously addresses the question whether any interference which the decision may involve is justified.

The important difference between this and the proportionality test which their Lordships have rejected, is that, unlike the proportionality test, this test does not invite the court to re-evaluate the merits of a decision, but restricts it to ensuring that the decision maker has taken the right things into account in the right way; the latter element being what makes the test novel. That is the point, as it seems to me, in the argument it is sought to advance for the applicant on this limb. In my judgment it is an arguable point in law, and if right in law it is arguable that it has a purchase on the facts of the present case.

Miss Webber's second point is related in many respects to the first, but it is in form a straightforward complaint of inadequacy of reasons. In my view it, too, is arguable and for that reason as well I propose to grant leave.

MISS WEBBER I turn to the question of bail and the second affidavit on behalf of the applicant sworn by Martin Penrose. As I indicated, the respondent does take a neutral attitude on the question of bail. The applicant has been in custody in Feltham Young Offenders' Institution since 31 December 1992, for nearly 18 months. He celebrated, it that is the correct word, his 21st birthday there on 5 May.

MR JUSTICE SEDLEY: Miss Rose, the neutrality of your stance is presumably not through unawareness of the situation, but precisely because, being aware of it, those instructing you are not minded to oppose, although you do not necessarily support the application.

MISS ROSE: That is right.

MR JUSTICE SEDLEY: Miss Webber, it seems to me that the Home Office will know far more than I about this matter. If knowing what they do, they do not think it right to oppose, then I am not going to put difficulties in the way of your bail application. The proposal is that your client will reside at 24 Compton Close, Robert Street. That is a council flat, is it?

MISS WEBBER: It is.

MR JUSTICE SEDLEY: The accommodation is secure and there is room for him to live there in reasonable comfort?

MISS WEBBED: Yes.

MR JUSTICE SEDLEY: In that case it will be a condition of bail that he should reside there. "Reside" means to sleep there every night and that means, in turn, any departure from the condition will require the consent of the court. He must understand that. Are there any other conditions, Miss Rose, you suggest would be appropriate to this case?

MISS ROSE: The matter of sureties, but no other conditions.

MR JUSTICE SEDLEY: I am extremely unwilling to make two unrelated people place a wager on the appearance of somebody in court. If I trust him, it is because I trust him and not because there is anything they can do about it.

MISS WEBBER: I am most grateful for that indication. The only other condition which the respondent may wish to be imposed, but which perhaps goes without saying, is that he will report as and when required to do so.

MR JUSTICE SEDLEY: His bail will be returnable by surrendering himself at this court on the day set for the hearing of his motion for judicial review. He must surrender himself by 10 o'clock on the morning of that day. If there are any problems, both sides have liberty to apply.