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Cite as: [2000] EWHC Admin 383

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SECRETARY OF STATE FOR HOME DEPARTMENT EX PARTE ABDUL RAHEEM SHEIKH, R v. [2000] EWHC Admin 383 (28th July, 2000)

Case No: CO/2023/99

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 28 July 2000

B e f o r e :
THE HON MR JUSTICE SCOTT BAKER

	REGINA
	- v -
	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE ABDUL RAHEEM SHEIKH

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Nicholas Blake QC (instructed by Messrs Menon & Co for the Applicant)
Miss K Grange (instructed by Treasury Solicitors for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©

MR JUSTICE SCOTT BAKER:
The Applicant, Abdul Raheem Sheikh, seeks the issue of a writ of habeas corpus. He has a long immigration history which can be summarised as follows. He was born in Pakistan in 1950. On 14 February 1994 he entered the United Kingdom with six months leave as a business visitor. Nine days before his leave expired, on 5 August 1994, he applied for asylum. Following the normal procedure, he filled in a questionnaire and was in due course interviewed. On 10 July 1995 he was served with notice that he was an illegal entrant. He was an illegal entrant because, so the Immigration Officer decided, he obtained entry into the United Kingdom by deception. On 10 July 1996 he was refused asylum and served with removal directions. He appealed against refusal of asylum and the special adjudicator dismissed his appeal on 18 July 1997. On 7 October 1997 the Immigration Appeal Tribunal refused him leave to appeal against that decision. On 1 June 1998 he was detained, but on 4 June 1998 the Chief Immigration Officer granted him bail with two sureties.
Notwithstanding the refusal of leave by the Immigration Appeal Tribunal, the Applicant made further representations to the Secretary of State. These were rejected. On 11 June 1998 the Applicant applied for judicial review. This was initially directed to the refusal of the Tribunal to grant leave and the Secretary of State's rejection of the further representations. However, when the application came before Lightman J, Mr McDonald QC, who appeared for the Applicant, made it clear that what he really wanted to challenge was the decision of 10 July 1995 to the effect that the Applicant was an illegal entrant. Put shortly, his argument was that the decision that the Applicant was an illegal entrant was vitiated by error of law by the Secretary of State. A person may be declared to be an illegal entrant where there has been a deception, but the burden of proof of deception is on the Secretary of State. His argument was that the burden had not been discharged.
Lightman J refused leave on 20 November 1998 on the ground that the application was long out of time and there was no justification for the delay. The Applicant appealed and his renewed application was dismissed by the Court of Appeal on 30 April 1999. Beldam LJ, giving judgment, with which both of the other members of the Court agreed said:
"The first question that the Court has to decide is whether in an application made three years and nine months after the decision was made, the Court should extend the Applicant's time to seek judicial review in this renewed application. For my part, I am satisfied that the Court is entitled to look at the length of the delay and the reasons (if any) advanced for it.
But Miss Foster advanced a further consideration which I consider a powerful one. She says that the length of the delay in this case is so long that the documents upon which the decision sought to be challenged is made, are not readily available and it is quite possible they will not be available. Secondly, the matter is now so old that recollections may well have faded.
No reasons are given for the delay, save that Mr McDonald submits that the application would have been premature if made within the ordinary time. Miss Foster says it would not. Many applications are made in circumstances such as this, and the course which is then adopted is that the application is adjourned to await the outcome of the Secretary of State's decision on the application for asylum.
For my part I am satisfied we ought not to grant an extension of time for the renewed application for judicial review."
Miss Grey for the Secretary of State says that the present application raises two issues:
(i) whether a writ of habeas corpus should issue when the applicant has already sought, and failed by way of judicial review, to challenge the underlying decision on which the detention is based, namely that the applicant is an illegal entrant;
(ii) whether the applicant is in fact an illegal entrant.
The starting point is that only a person who is in fact an illegal entrant can be detained and removed under the procedure provided for by paragraphs 9 and 16 of schedule 2 to the Immigration Act 1971. Mr Blake QC for the Applicant says this is a matter of precedent or jurisdictional fact to be determined in the case of challenge by the Court. It is not a question of administrative discretion reviewable under Wednesbury principles.
It is common ground that an application may be made by the Applicant for a writ of habeas corpus notwithstanding he has been detained and then bailed. See Sharpe on Habeas Corpus 2nd edition p165.
It is accepted by the Respondent that, generally, a person detained pursuant to paragraph 16 (2) of schedule 2 may apply for a writ of habeas corpus if he asserts he is not an illegal entrant. Where the power to detain is dependant upon the existence of a particular state of affairs ("a precedent fact") and the existence of that fact is challenged by or on behalf of the person detained, a challenge to the detention may be mounted by means of a application for a writ of habeas corpus even if there are alternative procedures available. See R -v- Secretary of State for the Home Department ex parte Muboyayi [1992] 1QB 244, 255. Habeas corpus is the traditional remedy for challenging the jurisdiction of the executive to interfere with liberty. Habeas corpus examines the jurisdiction to act or continue to act in a way interfering with liberty, whereas judicial review examines the legality of an apparently intra vires discretionary act.
But the position in this case is that the Applicant has already unsuccessfully tried to attack the precedent fact ( i.e. that he is an illegal entrant) in judicial review proceedings and the issue is whether in these circumstances he can try again by the habeas corpus route.
Mr Blake's argument is that habeas corpus, unlike judicial review, is not a discretionary remedy and furthermore does not have to be made within a certain time of the decision complained of. Habeas corpus relates to a continuing interference with liberty and is concerned with the present existence of jurisdiction to remove the applicant. Where interference with liberty is purely historic, the remedy is to sue the detaining authority for damages (subject to the six year limitation period). Also, an administrative decision to remove and detain may have been valid at the time it was made but may become invalid as a result of change of circumstance (e.g. the grant of British citizenship).
The question is, argues Mr Blake, whether there is authority to do what the immigration service are now doing and propose to do. The writ of habeas corpus issues as of right, where grounds for it exist. It cannot be refused on discretionary grounds or because it would be inconvenient. See Sharpe p58. In the present case the jurisdictional fact on which the decision to remove and detain is based i.e. that the Applicant is an illegal entrant has not been examined by the Court to see whether in truth it provides a firm foundation. In the proceedings before Lightman J and the Court of Appeal the Applicant sought to do so by way of judicial review but was not permitted to because his application was so long out of time. Delay is no bar to habeas corpus. Had the application to Lightman J been for habeas corpus, the Court could not have refused leave on the ground that the application was out of time, it would have had to consider and adjudicate upon the lawfulness of the decision that the Applicant was an illegal entrant.
No Court, argues Mr Blake, has ever adjudicated upon the lawfulness of the determination on 10 July 1995 that the Applicant was an illegal entrant.
It is necessary for a moment to return to Beldam LJ's judgment. He made it clear he was disposing of the judicial review application on the ground it was out of time. He went on to say it was unnecessary to go further. However he added that he had as it happens looked most carefully at the Secretary of State's decision based on the immigration officer's decision to treat the Applicant as an illegal entrant. That decision was justified. The Applicant had given contradictory reasons for seeking entry in the first place and the conclusion that he had sought leave to enter on a wholly false basis and in breach of the immigration laws was wholly justified. The burden of proof was discharged to a sufficient degree of certainty.
It is Mr Blake's argument that Beldam LJ's observations are nothing to the point because they formed no part of the Court of Appeal's decision. It is his case that the Applicant has a right to the issue of the writ of habeas corpus because there is an unresolved question as to the continuing validity of the proposed illegal entry removal. Accordingly, it cannot be an abuse of process to make the present application just because the previous application for judicial review failed because it was out of time.
There has been some discussion recently about the inter relationship between habeas corpus and judicial review and the desirability or otherwise of applying for both remedies. For example in R -v- Manchester Crown Court ex parte McDonald [1999] 1WLR 832, a custody time limit case, Lord Bingham CJ said:
"The concurrent application for habeas corpus was wholly unnecessary and served only to increase costs unnecessarily. It should not have been made."
In a lecture given to the Administrative Law Bar Association on 23 November 1999 Simon Brown LJ said:
"In short, I can think of no circumstances today in which relief obtainable by habeas corpus would not also be available by judicial review. I believe therefore that the time has come when instead of having, as presently we do, two distinct procedures available to challenge the legality of detention - one resonant with history but old fashioned and thoroughly circumscribed, the other modern, flexible and all embracing - there should be but one. Judicial review should prevail and habeas corpus should cease to operate as an independent process and become instead simply an order for release available within the review jurisdiction."
A little later he said:
"I readily accept that a power is more likely to be held subject to proof of precedent fact if its exercise will result in the deprivation of liberty. Such a holding is in reality a mechanism whereby the Court assumes a more intensive review jurisdiction and, unsurprisingly that is something it will tend to do in detention cases. But it does not always adopt that approach. Take for example the detention and deportation of refused asylum seekers. The House of Lords in 1987 in Bugdaycay (before ever there was any right of appeal in such cases) held that whether someone is a refugee is a question of fact to be left to the authorities; it is not a jurisdictional fact. Once a power to detain is held to depend on precedent fact, then of course anyone subjected to it can properly invoke habeas corpus. But that is not to say that habeas corpus must be regarded as available when anyone wants to challenge the underlying basis of his detention."
Lord Woolf MR, as he then was, considered the relationship and comparison between habeas corpus and judicial review in R -v- Barking NHS Trust [1999] 1FLR 106 and concluded by saying at 117:
"I hope in the future it will be possible to make an order of habeas corpus on an application for judicial review. Until this is possible if both applications are made again every effort should be made to harmonise the proceedings. The same affidavit should be used for both sets of proceedings. At any interlocutory and the final hearing both sets of proceedings should be before the Court. In the event of an appeal the same notice of appeal will suffice."
In these circumstances it seems to me regrettable, to say the least, that the Applicant should be permitted by habeas corpus to attack once again the decision of the Secretary of State to treat him as an illegal immigrant notwithstanding his failure in the earlier judicial review proceedings. Before the Court of Appeal Mr McDonald, who was then acting for the Applicant, argued that the court's approach, notwithstanding it was a judicial review application, ought to be the same as or akin to its approach for habeas corpus. With that approach the Court had no discretion to refuse the remedy if satisfied the Secretary of State had not discharged the burden to the high standard required to establish that leave to enter was obtained in the first place by deception. Accordingly, it cannot be said the Applicant's advisors did not have habeas corpus in mind when the case was previously before the Court.
Having read and re-read the judgment of Beldam LJ I am satisfied the reason why the application for judicial review failed was because it was so long out of time. But it is also clear that he carefully considered the merits including Mr McDonald's argument that the approach should be the same as for habeas corpus. He was satisfied the Secretary of State had discharged the burden on this basis, albeit his observations were unnecessary for the decision. The other members of the Court appear to have agreed with Beldam LJ's observations.
Miss Grey for the Respondent says first that she is entitled to rely on the decision of the Court of Appeal to justify the decision to detain the Applicant. Secondly, she says it would be an abuse of process in the circumstances of this case now to allow a second bite of the cherry by way of habeas corpus.
The starting point for her first argument is that the Court of Appeal decided that as between the Applicant and the Respondent the decision of 10 July 1995 was a legal one that could not be challenged. That decision, she contends, is the answer to the request for the issue of a writ of habeas corpus. The underlying decision must be treated as a legal one. It is well settled that a writ of habeas corpus will only be issued where there are proper grounds. Were a writ now to be issued the High Court would be undermining the decision of the Court of Appeal. Certainty and finality are essential in litigation. R -v- Governor of Pentonville Prison ex parte Tarling [1979] 1 WLR 1417, (see in particular Ralph Gibson LJ at p1422) shows the Court's attitude to repeated applications for habeas corpus and the position is comparable here. This is not a case where the Applicant begins to make out an argument on Ladd -v- Marshall grounds that fresh evidence is now available that could not have been put before the Court on the judicial review application.
Miss Grey argues that what is relevant in the present case is the decision of the Court of Appeal rather than the basis for it. Thus the Applicant might have lost because he was badly represented or because he failed to appear at the hearing. What matters is what is on the face of the order, namely that the application for judicial review was refused. The Court of Appeal has in effect said that the decision of the Secretary of State (on which the detention is based) stands. That is enough to justify the detention.
Strictly speaking I do not think the Court of Appeal disposed of the application for judicial review on the merits, although it seems to me pretty clear what the decision would have been had it done so. The application was refused because it was long out of time. Had there been before the Court an application for habeas corpus delay in itself could not have proved fatal, for delay is not bar to the issue of a writ of habeas corpus. Accordingly, argues Mr Blake, the Court of Appeal's decision is nothing to the point. No Court has ever examined, to the extent of making a decision upon it, the jurisdictional fact upon which is founded the decision to detain. It seems to me that the logical extension of Mr Blake's position is that someone in his client's shoes has an unfettered right to have the Court examine and adjudicate upon that jurisdictional fact regardless of how long the fact has been treated as undisputed and regardless of what has occurred in the meantime.
In these circumstances, runs Mr Blake's argument, the Court can now revisit the basis of the decision to detain with a view to the issue of a writ of habeas corpus. Mr Blake contends that the decision to detain has never had validity in the absence of lawful justification for it. The mere disposal of the judicial review application on the ground that it was out of time does not clothe the underlying decision that the Applicant is an illegal entrant with a validity that it does not otherwise have. Whether or not there was and is lawful justification is something that can only be resolved by examination of the immigration officer's decision that the Applicant was an illegal entrant because he obtained entry by deception. The merits of that decision have never been examined by the Court and must be.
I am unable to accept Mr Blake's argument. In my judgment, the fundamental reason why this application fails is abuse of process. As Lord Woolf said in the Barking case, every effort should be made to harmonise judicial review and habeas corpus proceedings. That seems to me especially important in a case such as this where both are directed at the same target and, as Mr McDonald argued before the Court of Appeal the standard of proof on consideration of the merits is or ought to be the same. There is no reason whatever why an application for habeas corpus should not have been made before Lightman J and the Court of Appeal. Any necessary evidence could have been obtained that time and, as a matter of convenience and expense, everything should have been dealt with at the one hearing. If the facts of the present case do not amount to an abuse of process, the consequence seems to me to be that an unscrupulous applicant will start with judicial review and if that fails make a second attack on the Immigration Officer's same decision by way of habeas corpus.
In my judgment the writ of habeas corpus should not issue. The Applicant is an illegal entrant. That has been affirmed by the Court of Appeal in refusing permission to attack the basis of the decision. Accordingly the application must fail.
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MISS GRANGE: My Lord, I appear on behalf of the respondent and I ask for the Respondent's costs.

MR. BLAKE: My Lord, I cannot resist that. This is a case where issues of some importance in principle were determined by my Lord. We do intend to appeal this matter. I think the position is that it is habeus corpus and not judicial review and I do not need my Lord's permission to appeal.

MR. JUSTICE SCOTT BAKER: If you do, you can have it.
MR. BLAKE: I am much obliged. In respect of costs, ,may I have a stay on those to be payable until disposal of any appeal?
MR. JUSTICE SCOTT BAKER: Yes, and I thank both sides very much for their assistance.