England and Wales High Court (Administrative Court) Decisions

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

MR JUSTICE HIDDEN: The decision impugned in this case is that of the Secretary of State not to exercise his discretion under s.21 of the Immigration Act 1971 to refer the applicant's case back to the Special Adjudicator for consideration in the light of further material submitted by the applicant. That decision in contained in letters dated 10th and 25th April 1995. The applicant seeks an order of mandamus to the respondent to refer the applicant's asylum appeal for reconsideration by the Special Adjudicator in the light of the further material submitted.

The applicant is a Nigerian national who entered the United Kingdom on 22nd March 1994 and was refused leave to enter. The next day he claimed asylum because he feared persecution from the Nigerian authorities because of his family's political associations and opposition to the regime. His application was refused by the respondent in April 1994 and his appeal to the Special Adjudicator was dismissed on 4th August 1994, but on appeal to the Independent Appeal Tribunal it was remitted for hearing before another Adjudicator.

The matter was then listed before the Adjudicator for 2nd December 1994, but the day before that, on 1st December, the applicant went to a doctor who was not his general practitioner. That doctor gave him a medical certificate. The certificate said he was unable to attend work for one week because he was suffering from what looked on the certificate to be "URTZ". The Adjudicator was not satisfied with that certificate and granted a 14 day adjournment for further evidence to be obtained, failing which, he said, the appeal would be determined on the papers.

A letter from the applicant's GP, Dr Gupta, dated 3rd December, which translated the letter "URTZ" into "URTI" meaning "upper respiratory throat infection", and said the applicant was unable to attend work for one week, was placed before the Special Adjudicator on 6th December. The Special Adjudicator found it entirely inadequate and said that if there were no further evidence by 16th December the appeal would be determined in the applicant's absence.

There was no further evidence filed by that date and in either December or January 1995 the Special Adjudicator dismissed the appeal on the papers. On 27th January 1995 the applicant sought leave to appeal from the IAT, which refused leave on 7th February. On 16th February 1995 the applicant's GP wrote to his solicitors confirming that on 2nd December 1994 "as he had a seasonal cold he was unfit to attend the immigration appeal on that day".

On 13th March 1995 Harrison J refused leave to move for judicial review in respect of the refusal of leave to appeal by the Immigration Appeal Tribunal.

The applicant then made a fresh claim for political asylum and sought a referral by the respondent under s.21 of the Immigration Act 1971, in the light of that report by the GP of 16th February 1995 and of four further documents (obtained after the IAT's refusal of leave) on the subject of danger to the applicant if he were forcibly returned to Nigeria.

On 29th March of this year the respondent refused to consider a fresh application for asylum. On 31st March the respondent refused to make a s.21 referral. He issued his decision letter on 10th April and, after a further letter from Nigeria was submitted to him, he wrote a supplementary decision letter on 25th April refusing the referral. On 5th May, Keene J granted leave to move for judicial review.

I turn now to the law and to the provisions of s.21 of the Immigration Act 1971 which read as follows:

"(1) Where in any case-

(a) an adjudicator has dismissed an appeal, and there has been no further appeal to the Appeal Tribunal, or the Tribunal has dismissed an appeal made to them in the first instance by virtue of s. 15 above; or

(b) the Appeal Tribunal has affirmed the determination of an adjudicator dismissing an appeal, or reversed the determination of an adjudicator allowing the appeal; the Secretary of State may at any time refer for consideration under this section any matter relating to the case which was not before the adjudicator or Tribunal.

(2) Any reference under this section shall be to an adjudicator or to the Appeal Tribunal, and the adjudicator or Tribunal shall consider the matter which is the subject of the reference and report to the Secretary of State the opinion of the adjudicator or Tribunal thereon".

The important issue raised by this application concerns the nature and extent of the discretion conferred on the respondent by s.21.

The section was first enacted as s.10 of the Immigration Appeals Act 1969 and Mr Gallivan, for the applicant, submitted that it appeared that the respondent had never yet exercised his discretion under these provisions, relying on what was said in the judgment of McCullough J in R-v-Secretary of State for the Home Department ex Parted Noor Uddin (1990) IAR 181 at 186. Miss Grey, for the respondent, disputed the word "never" but she conceded it was in any event rarely exercised.

Mr Gallivan submitted that such a direction conferred in subjective and apparently unfettered terms could nevertheless only be lawfully exercised within its statutory context and in accordance with the policy and objectives of the statutory provisions.

He referred, for authority for that proposition, to Padfield-v-MAFF reported at (1968) AC 997 and in particular to passages in the speech of Lord Reid. At 1032G to 1033A Lord Reid said:

"It was argued that the Minister is not bound to give any reasons for refusing to refer a complaint to the committee, that if he gives no reasons his decision cannot be questioned, and that it would be very unfortunate if giving reasons were to put him in a worse position. But I do not agree that a decision cannot be questioned if no reasons are given. If it is the Minister's duty not to act so as to frustrate the policy and objects of the Act, and if it were to appear from all the circumstances of the case that that had been the effect of the Minister's refusal, then it appears to me that the court must be entitled to act".

Lord Reid went on, referring to the case of Julius-v-Bishop of Oxford (1880) 5 AC 214 HL(E) to say:

"In case no question with was raised whether there would be a discretion, but a discretion so limited it must not used to frustrate the object of the Act which conferred it; and I have found no authority to support the unreasonable proposition that it must be all or nothing-- either no direction at all or an unfettered discretion. Here the words 'if the

Minister in any case so directs' are sufficient to show that he has some discretion but they give no guide as to its nature or extent. That must be inferred from a construction of the Act read as a whole, and for the reasons I have given I would infer that the discretion is not unlimited, and that it has been used by the Minister in a manner which is not in accord with the intention of the statute which conferred it".

Mr Gallivan submitted that accordingly propositions relevant to the nature and exercise of the s.21 discretion in the case of an asylum seeker could be derived from the statutory context. The discretion to refer was a very wide one since the respondent might refer "any matters relating to the case" "at any time". He cited in support of this proposition what McCullough J said in Noor Uddin at page 185:

"The words 'any matter' are general and wide. So, eg, where fresh evidence becomes available it is possible not only to ask an adjudicator to evaluate its credence but also to ask him to consider its effect on the case as a whole. He might, eg, be asked whether, had it been before him on appeal, it would have affected the exercise of his discretion".

Mr Gallivan submitted that the Adjudicator might be asked in the instant case whether the respondent should make a fresh decision on the asylum application and/or grant the application because the asylum seeker had a well-founded fear of persecution for a Convention reason. Further, Mr Gallivan said that in an asylum case, on the basis of Bugdaycay (1985) AC 514 and Thirukumar (1989) IAR 402, 414, the decision-making process and the decision itself had to be subjected to rigorous examination and anxious scrutiny because they impinged on fundamental rights. Additionally, he submitted that the primacy of the State's obligations under the Convention relating to the Status of Refugees was enshrined in s.2 of the Asylum and Immigration Acts 1993. Also, and exceptionally, an adverse decision on the merits of an asylum application is not entrusted by Parliament to the executive, but to an independent judicial officer by s.8 of the 1993 Act.

Mr Gallivan submitted that it will inevitably be difficult for an applicant to obtain documentary or other corroborative evidence to support the application and a proper assessment of the applicant's credibility was in the vast majority of cases indispensable. Again, because it would only be in exceptional cases that the applicant would be able to produce such evidence for his claim, where such evidence was produced it had to be regarded as weighty evidence in support of the application.

He submitted that the statutory context strongly suggested that Parliament intended that the Secretary of State should or must exercise his discretion to refer in asylum cases where there was fresh material which was reasonably capable of belief and relevant to the issues which arise in connection with the claim to asylum and which, if believed, might reasonably have made a difference to the decision of the Adjudicator or the Tribunal and the interests of justice did not otherwise exceptionally require.

Again, referring to Noor Uddin and the words of McCullough J in relation to "a not dissimilar" question, namely, whether to refer to the Court of Appeal (Criminal Division) under s.17 of the Criminal Appeal Act 1968 the case of a convicted man, on a point arising in the case Mr Gallivan took me to R-v-Secretary of State for Home Department ex parte Hickey No 2 reported in (1995) All ER page 490 at 496C to D and the words of Simon Brown LJ:

"Provided only and always that there indeed exists substantial new evidence or other considerations in the case and that he will not, therefore, be inviting the court to re-examine the selfsame case as it will already have rejected, the Secretary of State should to my mind ask himself this question: could the new material reasonably cause the Court of Appeal to regard the verdict as unsafe? If it could, then I would expect him without more ado to refer the case for hearing as an appeal. This surely is the policy of the legislation: any other approach risks the executive usurping rather than promoting the function of the court".

Mr Gallivan then sought to take the Court to Parliamentary material in order to discover the nature and extent of the s.21 discretion and the manner of its lawful exercise. He said that if and in so far as there was any ambiguity as to the nature and extent of the s.21 discretion and the manner of its lawful exercise, the Court was entitled to have reference to Parliamentary materials consisting of statements by the promotor of the Bill to ascertain the mischief at which they were directed or the legislative intention.

He sought to use as authority for that proposition the case of Pepper-v-Hart (1993) AC 593 and in particular words from the speech of Lord Browne-Wilkinson at 634C to E when it was said:

"I have come to the conclusion that, as a matter of law, there are sound reasons for making a limited modification to the existing rule (subject to strict safeguards) unless there are constitutional or practical reasons which outweigh them. In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous and obscure words. In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or the promotor of the Bill is likely to meet these criteria".

Miss Grey, in this context was, later to refer me to what was said in the speech of Lord Bridge at 617B to C when he said:

"It should, in my opinion, only be in the rare cases where the very issue of interpretation which the courts are called on to resolve has been addressed in Parliamentary debate and where the promotor of the legislation has made a clear statement directed to that very issue, that reference to Hansard should be permitted. Indeed, it is only in such cases that reference to Hansard is likely to be of any assistance to the courts".

In the light of Pepper-v-Hart I was, therefore, taken by Mr Gallivan de bene esse to what was said by the promotor of the Bill, the then Under-Secretary of State for the Home Department in Committee on 13th February 1969. He said:

"... it would be a useful power to be able to refer a case back so that when new matters have come to light which appeared to throw doubt on the correctness of the previous decision, or the appropriateness of the action taken in consequence of it, he could ascertain from the appellate authorities whether they altered the view which they formed of the case when it was before them. The clause is a valuable addendum to the powers. In this world of bad documentation it will be of advantage to an intending immigrant when later information becomes available".

Mr Gallivan made further submissions that the decision of the Secretary of State was in any event flawed in that he failed to take into account a relevant consideration, which was that no proper criticism had been made of the applicant or his advisors about the failure to submit further medical evidence within the time limits decided upon by the Adjudicator on 2nd December 1994, alternatively by the time that the applicant's appeal was before the IAT on 7th February 1995 and as a result, he submitted, could not be denied that the applicant was seriously prejudiced in the conduct of the hearing before the Adjudicator and the appeal before the IAT.

Further, he had medical evidence now available that in the opinion of the applicant's doctor at the relevant time the applicant was not fit to attend the hearing before the Special Adjudicator on 2nd December 1994. The Secretary of State did not, so far as the applicant was aware, contend to the contrary.

Mr Gallivan said that the respondent had misdirected himself in law that, even if he was satisfied that the applicant was allowed sufficient time to obtain further medical evidence, it did not follow that "therefore" the Secretary of State should not exercise his discretion under s.21. The respondent had also taken into account an irrelevant consideration or fettered his discretion in that the late submission of relevant material, at least in a case where the applicant could not reasonably be held responsible for the late submission, was not a factor which would and should properly be taken into account in the exercise of the discretion under s.21. Alternatively, if it was relevant, it was not a factor which could or should conclusively determine the question whether the discretion should be exercised. The purpose of the discretion under s.21 was to enable the referral of material not available before the Special Adjudicator.

Mr Gallivan said that the respondent had failed to balance the hardship arising to the applicant from his failure to exercise his discretion under s.21 in respect of, firstly, the fresh medical evidence and/or, secondly, the new material about the risk to the applicant if he returned to Nigeria on the one hand with the consequences of exercising the discretion on the other hand.

Mr Gallivan said that the respondent had erred in law in relation to the additional documentary evidence as to the risks which the appellant would be subjected to in the event he was returned to Nigeria and/or that he had failed to take into account relevant considerations in that the documentary evidence was on its true and proper construction neither uncorroborated nor vague. The documentary evidence is corroborated, Mr Gallivan, said, or at least capable of being corroborated, by the applicant's own evidence and by what was known to be the situation in Nigeria. Further, the documentary evidence was not, on any proper reading, vague.

Further, Mr Gallivan said that the respondent had misdirected himself in law and/or taken into account an irrelevant consideration and/or fettered his discretion in concluding that because the documentary evidence "has not lead to the conclusion that the original decision was incorrect" it would "therefore" be inappropriate to exercise the discretion under s.21. If the documentary evidence was such as to lead the Secretary of State to consider that the original decision, namely the decision to refuse the applicant's claim for asylum, was incorrect, it would be unnecessary for the Secretary of State to exercise his discretion under s.21.

Mr Gallivan said for all those reasons the decision was Wednesbury unreasonable. He referred me to the case of R-v- McMahon 68 CAR 18, which he conceded was of only marginal significance, and concerned a reference to the Court of Appeal under s.17(1)(b) of the Criminal Appeal Act 1968. More importantly he took me to the unreported case of R-v- Secretary of State for the Home Department ex parte Bello decided on 25th May 1995 in which an applicant had lost his appeal against the Secretary of State's decision on his asylum application before the Special Adjudicator and was refused leave to appeal by the independent appeal tribunal. At page 11D the applicant's solicitors wrote to the Secretary of State saying that:

"Since our appeal to the Adjudicator you have been provided with substantial new evidence of his claim which would have effected the Adjudicator's decision. We therefore ask that you exercise your discretion to refer the matter back to an Adjudicator under s.21 of the Immigration Act 1971 or on some other basis".

The decision which was then impugned is set out at 12G, namely, that the Secretary of State would not refer the matter back under s.21 of the Immigration Act. At page 13 Judge J quoted from an affidavit put in on behalf of the respondent which said this: "The Secretary of State would not deploy s.21 in every case where allegedly new material had come to light. His practice is to consider such material himself in the first instance and evaluate whether a well-founded fear of persecution had been made out notwithstanding the Special Adjudicator's adverse determination. Ordinarily, the Secretary of State considers that this exercise can be performed administratively without it being appropriate to refer the matter to the Special Adjudicator for assistance and advice under s.21. In certain cases, however, particularly those where the Secretary of State perceives the merits to be finely balanced and the Special Adjudicator's further advice on credibility is considered valuable, a s.21 referral may be considered appropriate. It is to be emphasised that each case is to be considered on its only merits".

Judge J then set out s.21 and went on at page 14D to utter words which I find very helpful in coming to my conclusions in this case. He said:

"The beneficial purpose of the provision is obvious and needs no elaboration. It means that notwithstanding that all the appropriate procedural steps have been exhausted, if fresh relevant material becomes available, the Secretary of State may refer material that was not before the Adjudicator for a report. However, the reference, if made, does not create or result in a second appeal. The Adjudicator's obligation is to report his opinion on the fresh material if it is referred to him. The decision whether to accept or reject and the weight to be attached to the court remains with the Secretary of State".

Judge J went on to say:

"The Secretary of State is not obliged to make any reference merely because fresh material becomes available. He is entitled not to do so and to evaluate the material for himself in each individual case, bearing in mind that the case being considered is an application for asylum with the grave potential consequences that can arise if an incorrect decision is reached.

It was argued that the discretion under s.21 of the 1971 Act is analogous to the discretion given by the Secretary of State under s.l7(1)(a) of the Criminal Appeal Act 1968, to refer a conviction back to the Court of Appeal (Criminal Division)". My attention was drawn to R-v-Secretary of State for the Home Department Hickey and Others [1995] 1 All ER 490. The analogy drawn between the decision to refer a conviction to the Court of Appeal under s. 17(1 )(a), although helpful and arising in not dissimilar circumstances, is, in fact, not complete. Constitutionally, and ignoring the question of pardon or s.17(1)(b), which do not arise for consideration, in Hickey, convictions may only be quashed by the Court of Appeal.

Although the Secretary of State may refer a conviction to the Court of Appeal he has no jurisdiction to make any decision himself whether or not the conviction should be quashed, nor to interfere with the decision of jury at trial or the Court of Appeal. His responsibility in asylum cases is far wider. When fresh material emerges he has to decide not only whether to refer this material to an Adjudicator, but ultimately whether asylum should be granted or whether the asylum seeker should be removed from the jurisdiction.

On the basis of the facts in this case, notwithstanding the attractive submission of Miss Harrison, on behalf of the Applicant, it would not be helpful to attempt to suggest any general guidance to the Secretary of State about how he should exercise his discretion under Section 21, or the criteria which he should adopt, nor to attempt particularly to analyse, word by word, a number of phrases employed in the course of correspondence as fresh material became available and was served piecemeal. Beyond underlining that there are bound to be occasions when fresh material should be referred to the Adjudicator for his report, any further analysis derived from the specific facts of this particular case would serve to inhibit or complicate the Secretary of State's task. It is accepted, and rightly so, that his decision in relation to matters which arise under s.12 of the 1971 Act is susceptible to judicial review on ordinary principles. For the present purposes, notwithstanding that the analogy between s.21 of the 1971 Act and s. 17(1)(a) of the Criminal Appeal Act is incomplete, the principle that I should adopt is well illustrated by gingham LJ in R-v-Secretary of State Home Department ex parte Cleeland. It reads:

'The decision to refer is that of Secretary of State, if he thinks fit. The use of that language does not of course make his decision is proof against judicial review but it does make it quite plain that the decision is entrusted to him and it is one which this court should not, in my judgment, at all readily interfere unless strong grounds for doing so are shown.'

In my judgment such strong grounds are present in this case and this application for judicial review comes within the principle outlined by Bingham LJ. My approach has been to attempt an overall evaluation of the material which has become available since June 1994 and to relate it to events at the hearing and the detailed determination of the Adjudicator. Without in any way criticising the decision that the case should not be adjourned, the reality of the case before the Adjudicator in June 1994, was that the Applicant was unable to put forward his case as he would have wished. It now appears that his difficulties were not necessarily of his own making or that there is at least a possible explanation for his difficulties. Where some important aspects of his evidence were disbelieved there is now material which may suggest that he may have been an accurate witness. If so, that might have a bearing on the overall question of his credibility generally as well as his credibility in relation to the particular issues. There is also fresh material which may suggest that, notwithstanding his own lack of involvement in political affairs, the fact that he is the son of his father who is so involved may have adverse and dangerous consequences for him and his safety in Nigeria if he is returned. In some of the observations in this last paragraph I have used the word 'may' deliberately. This court cannot decide any particular factual conclusions which should follow.

Another problem, which the fresh material illustrates, is that, as already noted, the material was produced piecemeal in stages. This is not a criticism of those who produced it. It was produced as and when it became available. In addition, sometimes it required consideration under severe pressure of events. Certainly this is true of the information provided on 11th February. This may explain the occasional differences in the wording of the reasons in the letters from the appropriate department. However, the need for an overall evaluation of all the fresh material seems to me to be obvious. In my judgment the application now appears to be wholly different from the application considered by the Adjudicator in June last year. The evidential issues which now arise in this particular application cannot fairly, or properly, or fuller be considered without a reference to an Adjudicator. Accordingly, the decision not to refer the fresh material for a report under s.21 of the 1971 Act was unreasonable in the Wednesbury sense and it should be quashed. I shall so order".

Mr Gallivan recognised that at 16A Judge J had not been prepared to attempt to suggest any general guidance to the respondent about how he should exercise his discretion under s.21 or the criteria which he should adopt, nor to attempt critically to analyse word by word a number of phrases employed in the course of correspondence. He submitted, however, that the case of Bello does not prevent this Court from telling the Secretary of State what the law is, despite that disclaimer of the desire to give guidance to the respondent, and he submitted, secondly, that the decision of Judge J does not differ in substance from the one before me.

The last case to which Mr Gallivan referred me was again unreported and this time only available in the note of counsel involved in the case. It is R-v-Secretary of State for the Home Department ex parte Khaldoun, decided only this month on 8th November. It was a renewed application for leave to move for judicial review. In it the Master of the Rolls said this:

"In the light of the material the Special Adjudicator dismissed the applicant's appeal. There then followed a flurry of correspondence which began with a letter written to the Secretary of State for the Home Department on behalf of the applicant on 20th October 1995 enclosing additional material and inviting the Secretary of State to refer the matter back to the Adjudicator.

At a speed which is unprecedented in official circles the Home Office answered on the same day saying that it had considered the additional material, and set out the basis upon which it approached matters The letter says:

'Ordinarily, the Secretary of State this exercise can be performed administratively without it being appropriate to refer the matter to the Adjudicator for assistance and advice under s.2 1. In certain cases, however, particularly those where the Secretary of State perceives the merits to be finely balanced and the Adjudicator's further advice on credibility is considered valuable, a s.21 referral may be deemed appropriate. It is to be emphasised that each case is considered on its merits'.

In that case, the letter went on, the Secretary of State had considered and remained of the opinion that removal would not be contrary to his Convention obligations.

There then followed a third letter of 20th October on behalf of the applicant from the Home Office enclosing a volume of further material and asking the Secretary of State for referral back to the Adjudicator. Again the Secretary of State declined to refer the matter back, in a letter of 24th October 1995, which said that the Secretary of State had previously seen the documents referred to in the letter, had considered them, and on the basis for all the evidence he was satisfied that Italy was safe.

The point which Miss Harrison makes with considerable force is that after the hearing before the Special Adjudicator in this case there was a hearing in another case, and another decision by the same Special Adjudicator in which the additional material was placed before him. In that case he referred the matter back to the Secretary of State. Miss Harrison submits that if the Secretary of State had referred this matter to be Adjudicator it might have affected his mind, and that therefore the Secretary of State should have referred the matter back and therefore the decisions not to of 20th and 23rd October are open to challenge".

The Master of the Rolls set out the words of s.21 and at page 4 began to deal with the point which is important in the instant case. He said:

"Miss Harrison reads the section as meaning that if the Special Adjudicator has dismissed the application and there was material before the Secretary of State which might have affected the decision of the Special Adjudicator if it had been before him at the time then the Secretary of State should refer the matter back to the Special Adjudicator. I have to say that seems to me to be an impermissible restriction of a discretion conferred by s.21(1) in broad terms and fortified by the analysis of Judge J in ex parte Bello. In that case, having read the section, he said, 'the beneficial purpose of this provision is obvious and needs no elaboration. It means that notwithstanding that all the appropriate procedural steps had been exhausted, if fresh relevant material becomes available, the Secretary of State may have refer material that was not before the Adjudicator (or the Tribunal) for the report.

However, the reference, if made, does not create or result in a second appeal. The Adjudicator's obligation is to report his opinion on the fresh material if it is referred to him. The decision whether to accept or reject and the weight to be attached to the report remains with the Secretary of State".

The Master of the Rolls then went on to say this:

"The Secretary of State is not obliged to make any reference merely because fresh material becomes available. He is entitled not to do so and to evaluate the material. for himself in each individual case, bearing in mind that the case being considered is an application for asylum with the grave potential consequences that can arise if an incorrect decision is reached.

In other words, the Secretary of State asks himself under the section 'Do I need the benefit of a report from the Adjudicator before making a final decision in the light of the new material, or am I in the position that despite the new material I am in a position to form a judgment of any own?'

It is a decision which is not beyond the reach of judicial review if the Secretary of State fails to refer where clearly he should have done, or makes a decision in the light of the material which is unsuitable. But it seems to me difficult in relation to this decision to attack the exercise of the Secretary of State's discretion as one beyond the scope of a reasonable Secretary of State. He described himself as being already familiar with this material, and did not in all the circumstances see any benefit in referring the matter to the Adjudicator, and speaking for myself I conclude without hesitation that the applicant cannot show that the decision not to refer was unreasonable according to the high test to be applied".

I have read large parts of the decision in Khaldoun because they will become relevant later on in my judgment.

From the law, Mr Gallivan turned to the material that was available to the respondent and could have been referred to the Special Adjudicator or the Tribunal. The five documents were the letters of Dr Gupta of 16th February 1993 on the medical issue which is found at page 103 and the letters in relation to Nigeria at pages 132, 133, 135 and 155 in the bundle. Those four letters relate to events happening in Nigeria which I shall call "the Nigerian letters" and are concerned with what is said to be happening in Nigeria at the time and in particular to the applicant's father. Two of them originate from solicitors to the Owalabi family, those dated 27th February and 10th April. One that is dated 25th February comes from the applicant's cousin in England and the fourth letter which is undated comes from the applicant's sister in London, N16.

The letter from the solicitors contained at page 132 states:

"As at the time of writing this letter, the whereabouts of Justice Owalabi is unknown and all efforts to trace him has proved abortive. There is every indication that he may be dead, but this is yet to be confirmed".

Those from the relatives say that the applicant's father is not dead, but is in hiding. The second letter from the solicitors said that the applicant's uncle has been "picked up from his clinic by the security operatives and taken to the Federal Capital Territory for questioning". That letter, which is addressed to the applicant said:

"You are a prime target of arrest and nobody knows what will happen to you if you are apprehended".

The Nigerian letters and the medical position are dealt with in three letters from the respondent, dated 31st March, 10th April and 25th April. The middle paragraph of the letter of 31st March deals with the medical position. It says:

"The Secretary of State is therefore of the opinion that both you and Mr Owalabi were given ample time and opportunity to obtain a medical certificate and/or provide a satisfactory explanation yet it was over two months after the original appeal hearing before Dr Gupta's medical report dated 16th February 1995 was produced. Moreover, from the Adjudicator's comments in his determination, it would appear that Dr Gupta did not actually see Mr Owalabi. The Secretary of State is also therefore not totally satisfied of the authenticity of the medical report and is not prepared to exercise his discretion and refer this 'new medical evidence' to the Appellate Authorities for further consideration unders.21(1) of the 1971 Immigration Act".

Mr Gallivan submits that this shows a flagrant error of law in that the respondent is taking the view that material coming late is the only way a s.21 reference can come into question. He says that simply because the material comes late it is not a proper reason for not exercising the discretion.

The letter of 10th April at 154 deals with both the medical position and the Nigerian letters. The second paragraph deals with the medical position and the late sending of Dr Gupta's letter and the third paragraph deals with the Nigerian letters. That reads:

"As stated in his letter of 29th March 1995, the Secretary of State has not accepted a fresh application for asylum from your client, nor is he prepared to do so, because he is of the view that your further representations merely amplify the grounds of your client's original claim and therefore did not constitute a fresh application. The documentary evidence submitted thus far is, as has been pointed out, uncorroborated and vague and has not led to the conclusion that the original decision was incorrect. The Secretary of State therefore considers it would be inappropriate for him to refer such information to the Appellate Authorities for consideration under s.21(1) of the 1971 Immigration Act".

Mr Gallivan submits that as to those letters the respondent's use of the words "uncorroborated" and "vague" is misconceived. He accepts that the letters are inconsistent about the applicant's father but he says the question that should have been asked was, was the material capable of being believed? The letter of 25th April at 159 deals with the Nigerian letters and it is necessary to read it in full. It said:

"The Secretary of State has noted you believe he has taken an incorrect approach in his refusal to refer the additional documentary evidence you submitted on behalf of your client to the Appellate Authorities under section 21(1) of the Immigration Act. He is fully aware of the discretion conferred on him to refer any matter relating to the case which was not before the Adjudicator.

Such a referral would not enable the Adjudicator to re-hear the appeal but simply to report his opinion on the new evidence to the Secretary of State and he would not necessarily make use of Section 21(1) in every case where 'new' evidence has come to light.

The Secretary of State's practice is to consider such evidence himself in the first instance and to evaluate whether a well-founded fear of persecution exists despite the Adjudicator's adverse determination. In most cases the Secretary of State considers that this exercise can be performed administratively without it being appropriate to refer the matter to the Adjudicator for assistance and advice under Section 21(1). In certain cases, however, particularly those where the Secretary of State perceives the merits to be finely balanced and the Adjudicator's further advice on credibility is considered valuable, a Section 21(1) referral may be thought to be appropriate. It is to be emphasised that each case is considered on its own merits.

The further documentary evidence you submitted was considered by the Secretary of State but, for the reasons set out in his letter of 10th April, he remains of the view that Mr Owalabi has not established a well-founded here of persecution in Nigeria. The Secretary of State's view has not been changed following your letter of 21st April with which you submitted additional documentary evidence from Emeka Nwokoro and Company. The Secretary of State notes that no evidence has been submitted to corroborate the statements in the letter and, as he made clear in his letter to you of 29th March 1995, he is not prepared on the basis of such vague and unsubstantiated information to either reverse his decision to refuse Mr Owalabi's original asylum application or accept that a fresh application has been made.

The Secretary of State has considered your request that Mr Owalabi's removal directions be deferred pending the outcome of the judicial review hearing in the case of Fatai Adebisi Bello in which the issue of referral under Section 21(1) of the Immigration Act 1971 has been raised. The Secretary of State is of the opinion, however, that the Bello case turns on its own facts and has no bearing on any other case including that of Mr Owalabi".

I can legitimately cease reading that letter at that point. Mr Gallivan says that this letter sets out too many obstacles in the path of the applicant and it is in this connection that he makes his submission that the respondent has failed to balance the hardship in this case in relation to the consequences of exercising the discretion. He further said that the respondent's decision was Wednesbury unreasonable and relied in this connection on the case of Bello. What his argument really amounts to is that there is no real distinction between the case of Bello and the instant case.

Miss Grey in her submissions on behalf of the respondent takes as a starting point the test which Mr Gallivan had propounded for deciding whether or not the Secretary of State should exercise his discretion under s.21 of the Immigration Act 1971. That test as set out in the grounds was whether or not the additional material is reasonably capable of belief and if believed might affect the outcome of the applicant's appeal. She said that it is entirely the wrong test because, in looking at the outcome of the applicant's appeal, it is requiring the respondent to focus on whether the Adjudicator's decision might reasonably be altered, not on whether the respondent should himself change his own mind and whether or not the respondent would be assisted in reaching such a decision by an additional opinion from the Adjudicator.

Miss Grey draws attention to the fact that Mr Gallivan relies in support of that submission on a suggested analogy with the test adopted in ex parte Hickey which deals with the Secretary of State's discretion to refer a conviction back to the Court of Appeal under s.17 of the Criminal Appeal Act 1968. She points out that the test, in fact, applied by the respondent is set out more fully in the letter of 25th April and in its second, third and fourth paragraphs which I have read recently. She submits that the decision whether to grant or refuse asylum on the basis of new material submitted by the applicant remains the decision of the respondent and is not conferred upon the Special Adjudicator. Thus, though any referral would require the Adjudicator to report his opinion, the weight to be attached to that opinion, and the decision as to whether or not to accept it, remains with the respondent.

She submits that it could not sensibly be argued that such an approach is unlawful. The approach addresses quite properly the circumstances in which the respondent would be assisted by receiving the Adjudicator's report and recognises that the Adjudicator's role is an advisory one. She went for support for the correctness of that approach to the case of Bello and the judgment of Judge J where the approach of the respondent and the suggested analogy of the s.17 of the 1968 Act were considered and criticism was made of the Secretary of State's general approach. She accepts that on the facts in Bello the Court considered that the opinion of the Special Adjudicator should have been sought

She, for her part, points to the fact that Mr Gallivan accepts that the thrust of the submissions of the applicant's counsel in Bello and Mr Gallivan's own arguments in the instant case are the same. She submits that it cannot be right in those circumstances to regard Bello as being merely a case in which the Court declined to give general guidance on use of s.21 and equally it cannot be right to argue that Bello is not inconsistent with the test proposed by Mr Gallivan in this case. She says that it is apparent that the Court in Bello was invited both to criticise the respondent's policy which is the same policy which was applied here and to adopt the same test as is now proposed by Mr Gallivan, but that the Court declined to do either.

She submits that there is an implicit rejection of that test in Bello in that the Court noted that the analogy with the s.17 powers was "incomplete" and that the Secretary of State's powers are very different "his responsibility in asylum cases is far wider". In s.17(1)(a) cases the decision to quash a conviction is that of the Court of Appeal and so the respondent's role must be to filter out those cases where fresh evidence could not reasonably be thought to be such as might lead the Court of Appeal to quash the conviction.

Miss Grey argues that that exercise necessarily and inevitably involves the Secretary of State in considering the likely view and the decision of the Court of Appeal. However, in this case it would be wrong to concentrate on whether the Special Adjudicator's decision might be altered by the fresh evidence. This is to accord a primacy to the Adjudicator's decision which is not accorded by the Immigration Act 1971 or by the Asylum and Immigration Appeals Act of 1993.

As to the case of McMahon she says it does not assist on the proper test to be applied by the respondent in exercising the 17(1)(b) discretion since it is quite apparent that the Court of Appeal was not addressing that issue. The fact that the respondent chose to ask a tentative question does not mean the threshold for a s.17(1)(b) referral is a low one. Further, it was erroneous to say that the Court in Bello was in substance adopting the same approach as Mr Gallivan has advocated here.

The Court in Bello directed itself by reference to R-v-Secretary of State for the Home Department ex parte Cleeland and Wednesbury and concluded that "where some important aspects of his evidence were disbelieved there is now material which may suggest that he may have been an accurate witness". The Court concluded that "the evidential issues that now arise in this particular application cannot fairly, proper or fully be questioned without a reference to an Adjudicator".

This, Miss Grey, submitted, was far from being the same as requiring the respondent to ask whether or not the material might reasonably be such as to have made a difference to the tribunal's making its decision.

Miss Grey relied heavily upon the authority of Khaldoun submitting that this Court was bound by it to reject the applicant's construction of s.21. She said that the only point before the Court of Appeal in Khaldoun was the s.21 point and that the submission made for the applicant was the same in Bello as it was in the instant case and that it had failed.

The construction put forward in Khaldoun was rejected in paragraphs which formed part of the ratio of the case. It followed from the fact that this was a renewed application for leave in the Court of Appeal and that the construction put forward by the applicant in Khaldoun was recorded as unarguable.

She said that Mr Gallivan was not able to argue successfully that this Court was free to depart from such a case whether on the suggested basis that it was interlocutory or on the basis that it was an extemporary judgment or that the matter was not fully argued. There was no authority that this Court was not bound by an interlocutory judgment and indeed the fact that the Court of Appeal regarded the submission as unarguable should give the decision added force. She referred to Manvinder Singh unreported and to Boyes and Chaplain (1968) 2 QB 23C to F, as to the nature the judgment, and said that although Mr Gallivan had referred to Haley-v-LEB (1964) 3 All ER 185, that concerned the House of Lords attitude to the decision of a lower court.

Miss Grey then turned to the Nigerian letters and submitted that if the approach adopted by the respondent was lawful the decision he reached may only be challenged on the basis that his attitude to the new material was Wednesbury unreasonable and she submitted that it could not successfully be argued that this was the case. The Nigerian letters comprise two from the applicant's lawyers, one from his cousin and one from his sister: the cousin and sister being in England could have been available to give evidence in December 1994 but were not called.

The letters were vague in, for instance, the references to the law enforcement agents and the suggestion that the applicant had certain information in respect of his father's activities and the allegations concerning his father's death. They were uncorroborated or substantiated by any independent source. Miss Grey submitted that the reference to hearsay at page 138 of the respondent's letter should be seen in that context. The letters were also contradictory in that some referred to the applicant's father being detained and others to his being in hiding.

Miss Grey submitted that it could not be appropriate to draw parallels between that Nigerian material and the factual material which was before the Court in the case of Bello. She disputed Mr Gallivan's submission that the new material was corroborated or capable of being corroborated by the applicant's own evidence of what was known to be the situation in Nigeria, since save for the claim that his father had been detained over a year ago, it related to matters which were said to have occurred since the applicant left Nigeria. In any event such a submission made the assumption that the applicant would be entitled to a re-hearing but had there been a referral the Special Adjudicator would only have been asked to give his opinion on the new material. Further, as to the suggestion that it was capable of being corroborated by what was known to be the situation in Nigeria, she said that specific material was not submitted and the respondent could be taken as being informed as to the general position in Nigeria.

As to Mr Gallivan's submission that no proper criticism could be made of the applicant or his adviser for failure to submit further medical evidence within the time limits before 7th February or before the tribunal, Miss Grey said that the submission made by the applicant on this point was considered by the respondent and dealt with in the letter of 10th April at paragraph 2. The respondent considered that sufficient time had been given. In any event it was not accepted that the applicant's solicitors could not be subject to criticism because the chronology revealed gaps.

Further, she submitted, it was not accepted that the applicant was unfit to attend the hearing. Miss Grey referred to the findings of the Special Adjudicator that he could not accept that a simple seasonal cold would prevent the applicant from attending the hearing and it was clear from the letter at 145 that the respondent was fully aware that the medical certificate from Dr Gupta was a certificate from a doctor who had not actually seen the applicant at the relevant time.

As to Mr Gallivan's submission that the respondent had misrepresented himself in law in concluding the applicant had sufficient time to obtain further medical evidence Miss Grey said that the submission that the respondent had misdirected himself in law was erroneous. The respondent merely gave reasons for his refusal to refer the medical evidence back to the Special Adjudicator which was a perfectly understandable view in the light of the fact that the medical evidence touched only upon a procedural matter. In relation to the contention that the respondent failed to balance the hardship arising from his failure to exercise his discretion under s.21 in respect of the medical evidence and the Nigerian letters with the consequences of exercising the discretion, Miss Grey submitted that there was no evidence to support that suggestion, and the respondent must be taken to have this in mind at all times.

Further, Miss Grey said that if Mr Gallivan were right s.21 would be used in a very high proportion of cases since the hardship argument would always be likely to outweigh the administrative delay in relation to convenience and expense of a reference.

Finally, Miss Grey dealt with Mr Gallivan's submission that the respondent was in error in concluding that because the documentary evidence "has not led to the conclusion that the original decision was incorrect" it would "therefore" be inappropriate to exercise the discretion under s.21. She said that such a submission as to the 10th April letter at page 154 was too minute a reading. The word "therefore" relied on by Mr Gallivan did not refer merely to the fact that the material had not led to the respondent changing his mind, it also referred to the fact that the documentary evidence submitted, as has been pointed out, was uncorroborated and vague. Further that letter expressly drew attention to the respondent's view already communicated before that letter and was to be read in conjunction with the later letter of 25th April 1995 in which the policy attitude adopted by the respondent was set out. It would thus be wrong to suggest that the word "therefore" was indicative of the respondent's approach.

Mr Gallivan, in his reply insisted that the respondent's approach as to the documents being vague and uncorroborated as part of his reasoning indicated the respondent in this case was applying a test which was Wednesbury unreasonable. He said that Miss Grey could not look at the letter at page 159 and pray that in aid because, as in the letter at 154, he had applied the wrong test in law.

He drew attention to the determination of this case at page 62 and to the two factors that there was no oral evidence and no documentary evidence before the Adjudicator. He submitted that, if the Special Adjudicator had had the Nigerian documents which provided corroboration of the claim to asylum, those matters would quite possibly have weighed with the Adjudicator.

As to Bello, he said that the analogy with s.17(1)(a) of the Criminal Appeal Act was not rejected by the Court but just not found to be complete. He said that the decision in Hickey showed the relatively low threshold of that case.

Dealing with Khaldoun he did not agree that he had submitted to me that I should not be bound by the ratio. He accepted that I was bound by the ratio of the Court of Appeal decision on a renewed application for leave but he said his submission was rather directed to what the ratio was, in fact, in the case of Khaldoun. He submitted that the only ratio in the case were the words on page 6

"but it seems to me difficult in relation to the decision to attack the exercise of the Secretary of State's discretion as one beyond the scope of a reasonable Secretary of State".

He submitted that was the only ratio and that I was not therefore bound by any words of the Master of the Rolls on the previous page, page 5. In relation to the fresh material that was before the Court in the case of Bello he said much of it could well be subject to the same criticism the respondent makes in this case. He did, however, concede that the evidence in Bello was stronger but said it was not that much stronger.

In the face of these contrary contentions as to the discretion conferred on the respondent by s.21 of the Immigration Act 1971, I now state my findings. I accept on the authority of Padfield that a discretion conferred in subjective, apparently unfettered terms is, in the words of Lord Reid, "not unlimited" and that it is the Minister's duty not to act so as to frustrate the policy and objectives of the Act. That policy and those objectives can only be construed from the statutory provisions. The Court can interfere if the Minister in exercising his powers and duties acts unlawfully. As Lord Upjohn said at page 1058:

"The Minister in exercising his powers and duties, conferred on him by statute, can only be controlled by a prerogative writ which will only issue if he acts unlawfully. Unlawful behaviour by the Minister may be stated with sufficient accuracy for the purposes of the present appeal: (a) by an outright refusal to consider the relevant matter, or (b) by misdirecting himself in point of law, or (c) by taking into account some wholly irrelevant or extraneous consideration, or (d) by wholly omitting to take into account a relevant consideration".

Again, as Lord Reid says in his speech at 1030C:

"In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act".

In construing the Act I do not accept that the statutory context of the Act, as Mr Gallivan submits, strongly suggests that Parliament intended that the respondent should or must exercise his discretion to refer when there is fresh material reasonably capable of belief which is relevant to the issues which arise in connection to the claim to asylum and which if believed, might reasonably have made a difference to the decision of the Adjudicator or the tribunal. I consider that the exercise of the discretion is accurately set out in the words of the Master of the Rolls in Khaldoun where he said on page 5:

"The Secretary of State is not obliged to make any reference merely because fresh material becomes available. He is entitled not to do so and to evaluate the material for himself in each individual case, bearing in mind that the case being considered is an application for asylum with the grave potential consequences that can arise if an incorrect decision is reached. In other words, the Secretary of State asks himself under the section 'Do I need the benefit of a report from the Adjudicator before making a final decision in the light of the new material, or am I in the position that despite the new material I am in a position to form a judgment of my own?'."

I consider the ratio of the case includes those words as well as the words on the next page "I conclude without hesitation that the Applicant cannot show that the decision not to refer was unreasonable according to the high test to be applied". I am satisfied, despite Mr Gallivan's arguments, that the authority of ex parte Khaldoun is binding on me and that that is the ratio which is binding on me.

Again, despite Mr Gallivan's submissions to the contrary, I do not consider that the decision in Pepper-v-Hart entitles me to look at Parliamentary material in this case. In addition to the words of the speech of Lord Browne-Wilkinson already cited I remind myself also of the passage from Lord Bridge at 617 to which, again, I have already referred. Bearing those speeches in mind, I have to say that I do not consider that s.21 of the Immigration Act 1971 is either ambiguous or obscure or that the literal meaning of it leads to an absurdity.

I am fortified in that view by what was said of the language at the section both by Judge J in Bello and McCullough J in Noor Uddin. I do not consider this case as an appropriate one for the Court to be referred to or to have regard to the Parliamentary material. It follows that I do not refer to the passages to which I was taken de bene esse.

If that view were wrong, those extracts do not in any event support the attack being made on the exercise by the respondent of his policy or the attack that the respondent in exercising his discretion was doing so in a way not contemplated by the under-Secretary of State who was promoting the Bill.

As to the case of Bello I find that the fresh material in that case was much stronger than the material in the case before me. In Bello the decision before the Adjudicator "proceeded on the basis that the applicant was not found to be a credible witness". One aspect of his credibility concerned references to his passport. At 4F there is the passage:

"In his evidence, for the first time Mr Bello claimed that he had left Nigeria on a false passport (which he had destroyed on the aircraft) bearing the name of Mr TA Akende, the same name on his ticket produced in court and that this was the reason for him not encountering problems at the airport in Lagos".

At page 7G it is made clear that the position now is that:

"The Secretary of State accepts that your client used the Nigerian Airways ticket in the name of Mr TA Akande for his flight to the United Kingdom in Nigeria on 4th January 1994 and that it is, consequently probable that he also travelled on a false passport in the same name containing a genuine or forged United Kingdom visa".

It is abundantly clear from that passage that the new information could have had a vital effect on the decision as to the applicant's credibility. There were other important factors one of which was the new availability of a police interim report from the Nigeria police force which is referred to at 5H.

It is plain that what Judge J was referring to was, in his own words, the fact that:

"In August 1994 a report, expressly regarded as genuine by the Secretary of State, was submitted. It concerned the arrest of the Applicant's parents. It was described as a Police Interim Report from the Nigeria Police Force and it refers to one Chief Hamed Bello, home address in Aghede Street,

'... was brutally beaten with his family by some men fully dressed in Army Uniform and were carried away to an unknown destination in a Military Land Rover.

All efforts to locate him and his family proved futile'.

Thereafter police forms 'a missing person' were included. These referred to the Applicant's mother and sister".

It is plain that Judge J came to the view that "the evidential issue which now arises in this particular application cannot fairly or properly or fully be considered without a reference to an Adjudicator". I accept the limitations recognised in Bello on assistance given by the case of Hickey. Equally, I respect the stance taken by the learned judge in disclaiming any desire to give guidance to the respondent about how he should exercise his discretion under s.21. The judge's words at 16B, which I accept and respectfully adopt I have already read, but they merit repeating:

"On the basis of the facts in this case, notwithstanding the attractive submission by Miss Harrison, on behalf of the Applicant, it would not be helpful to attempt to suggest any general guidance to the Secretary of State about how he should exercise his discretion under Section 21, or the criteria which he should adopt, nor to attempt critically to analyse, word for word, a number of phrases employed in the course of correspondence as fresh material became available and was served piecemeal. Beyond underlining that there are bound to be occasions when fresh material should be referred to the Adjudicator for his report, any further analysis derived from the specific facts of this particular case would serve to inhibit or complicate the Secretary of State's task".

Judge J declined to attempt to analyse word by word a number of phrases employed in the course of correspondence and said that any further analysis derived from the facts of Bello would serve to inhibit or complicate the Secretary of State's task.

That is an approach with which I am fully in accord in this case in relation to the detailed analysis which Mr Gallivan has made of the three letters from the Secretary of State and in particular to the use in them of the word "therefore". I am satisfied that to attempt analytically and critically to extract words used in the decision letters in this case would be to embark upon a task which involved too minute a reading of the words used in those letters.

At the end of the day, the report of Dr Gupta of l6th February 1995 was a letter from a doctor who had not, in fact, seen the applicant on 1st December, which simply gave the view that, as the applicant "had a seasonal cold, he was unfit to attend the immigration appeal on that day". The Special Adjudicator at the time of the hearing had seen and digested the doctor's letter of 3rd December 1994 at page 54 which said the medical certificate stated that the applicant was suffering from "upper respiratory tract infection, a simple seasonal cold, and is unable to attend work for one week".

The Adjudicator found at page 60 "it still had not been said that the appellant could not attend the hearing and I cannot accept that a simple seasonal cold would prevent him". I am entirely satisfied that the respondent's decision not to refer that fresh medical material to the Adjudicator was one to which he was perfectly entitled to come and which it cannot be said was Wednesbury unreasonable. If he had asked himself the question posed by the Master of the Rolls in Khaldoun namely "do I need the benefit of the report from the Adjudicator before I make a final decision in the light of the new material or am I in the position to dispute the new material or am I in a position to form a judgment of my own?" The answer would inevitably have been that he did not need a report from the Adjudicator and was in a position to form a judgment of his own.

I am equally satisfied that such is the position in relation to the four Nigerian letters and again the Secretary of State's decision not to refer them to the Special Adjudicator was one to which he was entitled to come and cannot be said to be Wednesbury unreasonable. Again, if he had asked himself what I will call the Khaldoun question again the answer would have been the same. Mr Gallivan in the submissions he has made has argued bravely on the applicant's behalf, but I am forced to the conclusion that, where counsel's submissions are in conflict, those of Miss Grey are to be preferred. It follows that this application for judicial review of the Secretary of State's decision must fail and accordingly I dismiss it.

MISS GREY: In those circumstances, I would ask for an order that the application be dismissed.

JUSTICE HIDDEN: Yes, you may have that order.

MR GALLIVAN: I have two applications. The first is the usual application for Legal Aid Taxation.

MR JUSTICE HIDDEN: Yes, certainly.

MR GALLIVAN: The second is leave to appeal.

MR JUSTICE HIDDEN: I think you will have to seek leave from the Court of Appeal.