England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th October 2002

Mr Justice Forbes :

1. Introduction. As originally framed, these proceedings were for appropriate relief by way of judicial review in respect of the first and second Race Relations (Immigration and Asylum) Authorisations (hereafter called “the first Authorisation” and “the second Authorisation”) respectively made by the Defendant (“the Secretary of State”) on 27^th March and 23^rd April 2001 pursuant to the relevant provisions of the Race Relations Act 1976 (“the 1976 Act”), as amended by the Race Relations (Amendment) Act 2000 (“the 2000 Act”). However, on 11^th June 2002, the second Authorisation was revoked by the Secretary of State. In the event, therefore, these proceedings are concerned only with the Claimant’s challenge to the lawfulness of the first Authorisation.
2. The Claimant is a non-profit making company run by Tamils as a resource centre and library that is concerned with the welfare of Tamils and, in particular, their equality under the law. Most of the individuals who are involved with the Claimant originate from Sri Lanka, but their number also includes Tamils who are nationals of other countries, including India, the USA and various European countries. It is worth noting that it is common ground that, in all the circumstances, the Claimant does have a sufficient interest to make this claim for judicial review and there is and has been no suggestion to the contrary effect made by or on behalf of the Secretary of State.
3. The Statutory and Legal Framework. Section 1 of the 2000 Act amended the 1976 Act (inter alia) by the insertion of new sections 19B to 19F. The amendments effected by the 2000 Act came into force on 2^nd April 2001. So far as material, the relevant provisions of the 1976 Act, as amended, are as follows:

“1 Racial discrimination

(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if:

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or

(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but:

(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic origins of the person to whom it is applied; and

(iii) which is to the detriment of that other because he cannot comply with it.

3 Meaning of “racial grounds”, “racial group” etc

(1) In this Act, unless the context otherwise requires:

“racial grounds” means any of the following grounds, namely colour, race, nationality or ethnic or national origins;

“racial group” means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person’s racial group refer to any racial group into which he falls.

(2) The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of this Act.

(3) In this Act:

(a) references to discrimination refer to any discrimination falling ` within section 1 or 2; and

(b) references to racial discrimination refer to any discrimination falling within section 1,

and related expressions shall be construed accordingly.

19B Discrimination by public authorities

(1) It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination.

(2) In this section “public authority”:

(a) includes any person certain of whose functions are functions of a public nature;

(5) This section is subject to sections 19C to 19F.

Exceptions or further exceptions from section 19B for judicial and legislative acts etc

(4) Section 19B does not apply to any act of, or relating to, imposing a requirement, or giving an express authorisation, of a kind mentioned in section 19D(3) in relation to the carrying out of immigration and nationality functions.

19D Exception from section 19B for certain acts in immigration and nationality cases

(1) Section 19B does not make it unlawful for a relevant person to discriminate against another person on grounds of nationality or ethnic or national origins in carrying out immigration and nationality functions.

(2) For the purposes of subsection (1), “relevant person” means -

(a) a Minister of the Crown acting personally; or

(b) any other person acting in accordance with a relevant authorisation.

(3) In subsection (2), “relevant authorisation” means a requirement imposed or express authorisation given:

(a) with respect to a particular case or class of case, by a Minister of the Crown acting personally;

(b) with respect to a particular class of case:

(i) by any of the enactments mentioned in subsection (5); or

(ii) by any instrument made under or by virtue of any of those enactments.

(4) For the purposes of subsection (1), “immigration and nationality functions” means functions exercisable by virtue of any of the enactments mentioned in subsection (5).

(5) Those enactments are:

(a) the Immigration Acts (within the meaning of the Immigration and Asylum Act 1999 but excluding sections 28A to 28K of the Immigration Act 1971 so far as they relate to offences under Part III of that Act);

…”

4. It is common ground that the 1976 Act must be construed purposively; i.e. that it should be construed “according to its legislative purpose, with due regard to the result which it is the stated or presumed intention of Parliament to achieve and the means provided for achieving it”: see the judgment of Waite L.J. in Jones v. Tower Boot Co. Ltd (1997) ICR 254 at pages 261 and 262 and the opinion of Lord Bingham in Anyanwu v. South Bank Student Union (2001) ICR 391 at pages 392 and 393. It was therefore the submission of Mr Allen QC on behalf of the Claimant that any provision that purports to exclude or limit the effect of the Act must be construed narrowly (i.e. the obverse of a purposive construction of the Act) and I did not understand Mr Fordham to put forward any submission to the contrary effect on behalf of the Secretary of State.
5. The First Authorisation. The first Authorisation came into force on 2^nd April 2001 It is entitled “Race Relations Act 1976 – Section 19D Ministerial Authorisation” and commences with the words “I make the following authorisation under section 19D(3)(a) of the Race Relations Act 1976”. In the course of his submissions, Mr Allen made it clear that the Claimant’s challenge in these proceedings was directed at part only of the first Authorisation, not its entirety (see paragraph 12 of Mr Allen’s written skeleton argument). So far as material, the first Authorisation provides as follows:

“PART II

DISCRIMINATION JUSTIFIED BY STATISTICS AND INTELLIGENCE

Examination of passengers

3. (1) This paragraph applies where a person is liable to be examined by an immigration officer under paragraph 2 of Schedule 2 to the Immigration Act 1971.

(2) If one or more of the conditions in paragraph 6 are satisfied, the immigration officer may, by reason of the person’s nationality:

(a) subject the person to a more rigorous examination than other persons in the same circumstances;

(b) exercise powers under paragraphs 2(3), 2A, 4 and 21 of Schedule 2 to the Immigration Act 1971;

(c) detain the person pending his examination under paragraph 16(1) of Schedule 2 to the Immigration Act 1971;

(d) decline to give the person’s notice of grant or refusal of leave to enter in a form permitted by Part III of the Immigration (Leave to Enter and Remain) Order 2000; and

(e) impose a condition or restriction on the person’s leave to enter the United Kingdom or on his temporary admission to the United Kingdom.

Persons wishing to travel to the United Kingdom

4. (1) This paragraph applies where a person is outside the United Kingdom but wishes to travel to the United Kingdom.

(2) If one or more of the conditions in paragraph 6 are satisfied, an immigration officer or, as the case may be, the Secretary of State may, by reason of the person’s nationality;

(a) decline to give or refuse the person leave to enter before he arrives in the United Kingdom; and

(b) exercise the powers to seek information and documents under articles 7(2), 7(3) and 13(8) of the Immigration (Leave to Enter and Remain) Order 2000.

Removal Directions

5. Persons responsible for giving directions under section 10 of the Immigration and Asylum Act 1999 or under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 may give priority to the setting of directions for the removal of persons of a particular nationality if one or more of the conditions in paragraph 6 are satisfied.

Conditions

6. The conditions are that:

(a) there is statistical evidence showing a pattern or trend of breach of the immigration laws by persons of that nationality;

(b) there is specific intelligence or information which has been received and processed in accordance with the IND Code of Practice for the recording and dissemination of intelligence material and which suggests that a significant number of persons of that nationality have breached or will attempt to breach the immigration laws.”

6. The evidence filed on behalf of the Secretary of State includes the witness statement, dated 15^th May 2002, of Mr Timothy Paul Woodhouse, a Policy Official in the Immigration and Nationality Policy Directorate of the Home Office. In his witness statement, Mr Woodhouse deals specifically with the first Authorisation in paragraphs 12 to 15, from which it is convenient to quote the following passages:

“13. I understand the thrust of the Claimant’s complaints to be that the conditions in paragraph 6 of the Authorisation are vague and should involve listed nationalities, or that in the absence of relevant and adequate evidence of immigration abuse, there may be unjustified discrimination. The Secretary of State has responded in his grounds of opposition (lodged at the permission stage) paragraph 7 by outlining various submissions which he will advance at the hearing but which I will not repeat. In terms of evidence, I would wish to endorse what is said in paragraphs 8 and 9 of that document, namely that:

(1) Paragraph 6 of the First Authorisation reflects the fact that Ministers recognised the advantages of formulating criteria, as opposed to delegating an open-ended discretion. In the Second Authorisation, Ministers went further and retained personal responsibility for a list of national and ethnic origins, to be kept under constant review. Paragraph 6 also reflects the fact that it was considered important to retain a sufficient degree of flexibility. Ministers were striking a balance, in identifying the nature of the circumstances which would justify recourse to the power, by making the power conditional …

(2) It is important to recognise the internal co-ordination and liaison which accompany the consideration of evidence and information. As has been explained, in Lord Rooker’s letter to the Immigration Law Practitioners’ Association:

“it is necessary for the Immigration Service to demonstrate that there is specific intelligence or statistical evidence showing a pattern or trend of breach of the immigration laws by persons of that nationality. The Immigration Service has put in place appropriate arrangements for the collection and circulation of relevant, detailed statistical information to staff, and these systems will become more sophisticated as they are refined in the light of experience. This approach has the benefit of being workable in practice in a highly pressurised operational environment, whilst imposing a real discipline on immigration staff to avoid unfair, unjustified differential treatment.”

(3) The response is intended to be a measured one, in the context of a deliberate legislative exception based on the interests of proper immigration control. There are a number of important protections. The authorisations are designed to be kept under review, with an independent monitoring role on the part of the Race Monitor. There is the right of statutory appeal on human rights grounds, in which the Immigration Service will have to justify its approach, and whereby any human rights issues can be considered against the facts of a particular situation.

14. It may be helpful for me to say a little more about this, and give a practical illustration. Given the need for flexibility in the day to day operation of the port control, Ministers have delegated the assessment of the statistical evidence or intelligence of breaches of the immigration laws to officials. Each month, the Immigration Service circulates a risk assessment to all immigration officers, detailing the relevant nationalities that present the greatest risk in terms of immigration breaches, and the statistical and intelligence basis for that assessment. An abridged copy of an example of the Home Office Risk Assessment Statistics utilised by Immigration Officials is exhibited (hereto). The table demonstrates the range of statistical information used to determine the risk posed to United Kingdom controls by persons of each nationality, listed in descending order of risk. The table covers detected immigration breaches and other contextual background information for the month of January 2002. Various case events aggregate to give the total number of immigration breaches for each nationality per month. These include the detection of forged documents presented on arrival in the United Kingdom, arrival without travel documents, refusal of leave to enter or asylum at a United Kingdom port of entry, service of notice as an illegal entrant, action taken against those overstaying their leave or working in breach of their conditions of leave, and those serv(ed) with deportation orders. A separate Intelligence Assessment concerning nationalities and ethnic groups is also provided to immigration officials, the public disclosure of which could prejudice the effective administration of the United Kingdom immigration control. The intelligence material in question provides information to immigration officials about the known activities of document forgers and people traffickers around the world which impinge on the United Kingdom immigration control.

15. I will say a little about other components of the First Authorisation:

(1) One aspect relates to persons wishing to travel to the United Kingdom. This aspect of the First Authorisation is necessary to ensure a proper alignment between the flexibility provisions in the Immigration and Asylum Act 1999 and the Immigration (Leave to Enter and Remain) Order 2000 on the one hand and the extended Race Relations Act on the other. The authorisation provides that immigration officers are not under an obligation to give or refuse leave to enter before arrival in the United Kingdom if their reason for not doing so is based on grounds of nationality supported by statistical evidence or intelligence of breach or attempted breach of the immigration laws. The effect of this provision is to place persons wishing to travel to the United Kingdom in the same position in relation to the authorisation as persons who have arrived at a United Kingdom port and sought leave to enter.

(2) As to removal directions the authorisation allows the prioritisation for removal on the basis of nationality of persons who do not enjoy a lawful basis of stay in the United Kingdom, where there is statistical evidence showing a pattern or trend or breach of the immigration laws by persons of that nationality.

(3) The asylum work streaming provision enables the Secretary of State to give priority to the consideration of claims for asylum from persons of a particular nationality (or) ethnic or national origin if there are a significant number of claims for asylum from persons of that nationality or ethnic or national origin which are unfounded or which raise similar issues in relation to the 1951 UN Convention relating to the Status of Refugees or the European Convention on Human Rights. This is necessary to enable the Immigration and Nationality Directorate to manage its resources effectively, deliver the Government’s asylum targets, and to respond promptly to rising numbers of claims of a particular type from certain groups. All applications continue to be considered on the basis of their individual merits in accordance with the United Kingdom’s international obligations.

…”

7. The Parties’ Submissions. As is clear from its title and opening words (see above), the first Authorisation was made by the Secretary of State, pursuant to his powers under section 19D of the 1976 Act. It was therefore Mr Allen’s submission that the proper construction of section 19D of the 1976 Act was central to the Claimant’s case in these proceedings. Mr Allen described a “relevant authorisation” made or given pursuant to that section as constituting, in effect, a licence to discriminate. He submitted that it was therefore unsurprising that the power under section 19D, to make or give such a “relevant authorisation”, has been given to a very limited class and that the exercise of such a power is (to use Mr Allen’s words) a “high level process”, i.e. only Parliament and a Minister of the Crown (somebody who is answerable directly to Parliament) are empowered to make or grant a “relevant authorisation” to do an act which constitutes discrimination.
8. Mr Allen also pointed out that, although there is no defined procedure for exercising the power to make or give such an authorisation, the Minister is specifically required by the express words of section 19D(3)(a) to act personally, words upon which Mr Allen placed great emphasis. He therefore stressed that neither the Immigration Service nor its officers are empowered to make or give any authorisation to discriminate. I did not understand this particular submission to be contentious and it is worth noting that it is entirely in line with relevant ministerial statements made during the passage of the Bill through Parliament: see, for example, the statement of the Parliamentary Under-Secretary of State for the Home Office, Mr Mike O’Brien, made to the House of Commons on 30^th October 2000, as follows:

“…(the Member for Leyton and Wanstead) … asks whether junior civil servants have the ability to take unto themselves the exemption. The answer is no: a junior civil servant has no ability to say, “I have decided that, in that case, such a course of action is no longer discriminatory,” nor does a senior civil servant, or the chief immigration officer. Immigration officers will operate under the guidance issued by Ministers, which is, by and large, in the public arena. My hon. Friend will be able to ascertain the criteria by which such decisions are made and the way in which they are reached.

In no sense does the Bill create an exemption that gives a civil servant broad discretion to discriminate. Civil servants will be able to discriminate properly and lawfully only when there is a clear instruction from the Minister to do so in specific circumstances, and those circumstances are mainly in the public arena. … We do not accept that any official is entitled to discriminate in a way that is unacceptable to the Government.”

9. Mr Allen submitted further that it is clear from the words of section 19D that, to be valid, the “licence to discriminate” that results from a ministerial authorisation given under section 19D(3)(a) must also come within and thus satisfy the following conditions:

(i) the “relevant authorisation” must be in respect of a specified act by a particular person, who can thus be said to be “acting in accordance with” the authorisation in question (see section 19D(2)(b)); and

(ii) the “relevant authorisation” must be given with respect to a certain case or class of case (see section 19D(3)(a)) .

10. It was therefore Mr Allen’s submission that, in order to constitute a valid “relevant authorisation” within the meaning of section 19D(3)(a) of the 1976 Act, the purported “licence to discriminate” must satisfy the following conditions:

(i) the authorisation in question must be given by the Minister, acting personally; and

(ii) it must be clear from the terms of the authorisation in question what act or acts in respect of what case or class of case are rendered lawful, despite constituting discrimination against another person on the grounds of nationality or ethnic or national origins.

11. Mr Allen drew attention to the second Authorisation (now revoked) and submitted that the terms of that Authorisation did sufficiently identify the particular circumstances in which discriminatory acts were authorised (see pages 92 and 93 of the Court bundle of documents). He submitted that this was in dramatic contrast to the terms of the first Authorisation and, in particular, to paragraph 6 thereof - which paragraph Mr Allen contended is wholly uncertain in meaning and unclear on its face, because it is not possible to say from its terms how and/or when either condition is or will be satisfied. Mr Allen submitted (correctly, in my view) that, although the general nature of the material and/or intelligence considered to be relevant for the purposes of paragraph 6 is referred to in Mr Woodhouse’s evidence (see above), there is nothing in that evidence which gives any indication as to the appropriate threshold or standard (if any) that has to be met before either of the conditions is satisfied and the discrimination in question duly brought within the compass of paragraph 3(2) of the first Authorisation and thus made permissible.
12. Mr Allen pointed out that paragraph 6 of the first Authorisation did not actually specify who is to determine the trend or evaluate the relevant evidence/information, to which reference is made in the conditions, for the purposes of deciding whether, in any particular case or class of case, either of the paragraph 6 conditions has been satisfied, except to the extent that there is no suggestion that this important aspect of the matter is to be decided by the Secretary of State. Mr Allen emphasised that it was not any part of the Secretary of State’s case that he was the person who has to make that decision – a decision of fundamental importance, because it is that decision that triggers the Authorisation and thus makes the discrimination in question permissible. In this regard, Mr Allen also pointed out that, in paragraph 14 of his witness statement (see above), Mr Woodhouse confirmed that the Secretary of State has “delegated the assessment of the statistical evidence or intelligence of breaches of the immigration laws to officials".
13. Mr Allen pointed out that, in order to bring the relevant act or acts of discrimination within the scope of the first Authorisation, it is necessary to decide whether one or other of the conditions in paragraph 6 has been satisfied, because only then are the various acts of discrimination set out in paragraphs 3, 4 and 5 of the Authorisation duly authorised. Mr Allen submitted that, as confirmed by the contents of paragraph 14 of Mr Woodhouse’s witness statement, in practice this will be done by an immigration officer making an assessment of the statistical evidence and/or intelligence material and deciding whether, in respect of persons of a particular nationality, one or other of the conditions specified in paragraph 6 is, in fact, satisfied.
14. Mr Allen suggested (correctly, in my view) that this necessarily means that the effective decision to authorise discriminatory acts in respect of persons of a particular nationality will actually be made by a person other than the Minister, albeit that such a person will make that judgment within the limits of the Secretary of State’s broadly defined criteria. Mr Allen submitted that such must be the case, because it will be the immigration official who actually decides whether either of the paragraph 6 conditions has been satisfied in respect of persons of a particular nationality and, most importantly, he will do so by applying to the evidence and/or information such standard and/or threshold as he considers to be appropriate in the circumstances of the case and not by reference to any standard or threshold that is defined and/or specified in paragraph 6 itself (and, thus, specified by the Minister). In my opinion, that submission is correct.
15. Mr Allen therefore suggested that the effect of the first Authorisation is to give authority to persons other than the Minister to set and apply the standards and/or the threshold for compliance with the paragraph 6 conditions and thus to empower them to decide whether the discrimination in respect of persons of a particular nationality comes within paragraph 3 of the first Authorisation. Mr Allen submitted that, when analysed in this way, it can be seen that paragraph 6 of the first Authorisation, in effect, involves an impermissible delegation of the Secretary of State’s power to authorise when discriminatory acts will be lawful, and is therefore ultra vires and invalid.
16. Mr Fordham submitted that this case is concerned with a division between, on the one hand, the power of the Secretary of State personally to promulgate an Authorisation under section 19D of the 1976 Act and, on the other, the application of that Authorisation in practice by immigration officials. He acknowledged that any class of persons to whom the first Authorisation applies will be defined by nationality and accepted that, in effect, the Authorisation empowers immigration officials to decide when the paragraph 6 conditions are satisfied in respect of persons of any particular nationality. However, he submitted that this was a perfectly legitimate way in which to achieve the key objective of “a flexible intelligence-led immigration control”: see the Home Office Minister’s letter to the Immigration Law Practitioners’ Association, dated 18^th July 2001, and paragraph 9 of Mr Fordham’s written skeleton argument.
17. Mr Fordham submitted that, in making the first Authorisation, the Secretary of State’s approach had been to give his personal authorisation to immigration officials to do various discriminatory acts within certain clearly expressed criteria, which authorisation thus enables those officials to achieve that which was intended by Parliament, namely an intelligence-led and flexible approach to dealing with immigration abuse. He submitted that this been done by the carefully expressed terms of the first Authorisation (in particular, by the terms of paragraph 6), that this approach was plainly within the ambit of the Secretary of State’s power under section 19D and that, accordingly, the first Authorisation is lawful in its entirety.
18. I have come to the firm conclusion that Mr Allen’s submissions on this aspect of the matter are correct. As he argued in reply to Mr Fordham’s submissions, it is clear that, for it to be a valid authorisation under section 19D(3)(a), the first Authorisation must have been given by the Minister acting personally and so given in respect of a particular case or class of case. I also agree with Mr Allen that much of Mr Fordham’s argument was one of convenience and to the effect that immigration officials can properly be empowered by the Minister’s authorisation to identify an appropriate case or class of case and to define its boundaries and extent by making their own assessment of the relevant evidence and/or information. In my view, that argument is wholly inconsistent with the clearly expressed statutory requirement that the authorisation in question must be an authorisation given by the Minister acting personally in respect of a particular case or class of case.
19. In the present case, as it seems to me, although he has given some widely defined criteria for the identification of appropriate cases or classes of case, the Secretary of State has delegated the essential task of actually identifying and defining any such case or class of case entirely to the decision-making of immigration officials and, what is more, by reference to their standards and/or thresholds rather than his own. In my view, this approach is clearly ultra vires section 19D of the 1976 Act, as amended. I agree with Mr Allen that a licence to discriminate, such as that envisaged by section 19D, can be expected to be subject to strict control and that, in the present case, Parliament has made it clear by the express terms of the section that the necessary control is to be by the democratic process, namely by every essential aspect of the power being clearly exercised personally by a minister accountable to Parliament.
20. Conclusion. Having regard to the firm conclusion that I have reached on the first way in which Mr Allen put the Claimant’s case (see paragraphs 31 to 33 of the Grounds), I do not consider that it is necessary to go on and consider his alternative argument based on the Human Rights Act 1998 (see paragraphs 34 to 38 of the Grounds). Accordingly, for the foregoing reasons and to the extent indicated, I am satisfied that this application succeeds. I will hear further submissions from Counsel for the parties as to what form of relief is appropriate in all the circumstances.

- - - - - - - - - - - - -

MR JUSTICE FORBES: Mr Allen and Mr Tam, you have both received a copy of the judgment. I apologise for the fact that somehow my clerk managed to put the wrong Secretary of State on it. I do assure you that I did have in mind the correct one. It was some mysterious result of transferring my draft to the judicial template. I have adopted all the corrections suggested by both of you, all of which were minor. They have been incorporated into the form of judgment you have received. Have either of you have anything further you wish to raise - before I give the appropriate direction - with regard to the content of the judgment?

MR ALLEN: Absolutely not, no.

MR JUSTICE FORBES: I direct that the written judgment which I handed down this morning is to stand as the transcript of my judgment in this matter.

MR ALLEN: Unfortunately, the disputes do not stop with your Lordship's judgment. The applicants ask for costs. I understand that that is not the subject of dispute insofar as your judgment is concerned. We also ask for costs on the application. I shall explain what I mean about that in a second.

The second point is in relation to the form of order. There is something of a dispute in relation to that. It may be a dispute as to form rather than substance, but this may be an area where form is important.

MR JUSTICE FORBES: It is because I was aware of that that I left the matter open in my concluding paragraph in the judgment.

MR ALLEN: The third point is that I understand the Secretary of State wishes to seek leave to appeal. I will let him make his own application in relation to that, but it will be resisted in due course.

Can I deal with the first two and in the reverse order because it is probably appropriate to do that. If you go to the authorisation in the bundle or in your judgment - it is best in the bundle - the authorisation with which we were concerned was the first authorisation at page 88 in the bundle. The dispute is this: the respondents will seek to argue that you should only order the quashing of Part 2 paragraph 6, not the whole of Part 2. Our submission is that the proper approach is to quash the whole of Part 2 because it has an integrity. Merely to quash Part 6 is to leave in place an authorisation which has no sense and no integrity. We are not to be taken in that submission as saying that some of the words used in Part 2 could not be used in some subsequent and remedial authorisation, but that it is appropriate in a case such as this where the whole of the process hangs together in one text that the whole of that text should be quashed if it is held to be ultra vires. That is the point. Put simply, the respondent says strike out only paragraph 6. We say no, 6 has no meaning without the whole of paragraphs 3, 4 and 5 and that therefore the Minister should go away and think again about how he is to do it in the light of your judgment. That is the first point. I do not know if you want to hear argument.

MR JUSTICE FORBES: Yes, I think that will be helpful. I will deal with that first.

MR TAM: It is a simple point. The criticisms made by the claimant and which your Lordship accepted in judgment are directed to paragraph 6.

MR JUSTICE FORBES: The trouble with limiting the effect of the order to that paragraph alone is that it leaves each of the other paragraphs in Part 2 tainted by the criticisms of paragraph 6. Each of paragraphs 3, 4 and 5 are expressly stated to be, in effect, triggered by paragraph 6.

MR TAM: Yes, but what we say is this: suppose the challenge had failed and you had held the conditions in paragraph 6 were fine none of the remainder of the challenge was directed towards the other paragraphs in Part 2. One of the things that comes over from the evidence is that those paragraphs express a limit to the permitted discrimination to matters of process rather than matters of actual decision making. In that sense one can see why the challenge made was directed purely to the breadth of the delegation under paragraph 6. If paragraph 6 on its own is quashed we accept that Part 2 could have no effect without it, but what could happen is that the Secretary of State could substitute a new paragraph 6 with, hopefully, permissible and lawful conditions therein and then paragraph 2 can operate as one integral whole in the way that my friend describes. To quash the whole of Part 2 because one paragraph offends a statute would be taking matters too far. If the Secretary of State, on considering how he is going to replace paragraph 6, decides he ought to tinker with paragraphs 3, 4 and 5 as well he can revoke those and make new authorisations in whatever terms he then thinks fit. But in terms of giving effect to this judgment in paragraph 6, we submit that paragraph 6 alone should be quashed.

MR JUSTICE FORBES: Is there anything more you want to say about paragraph 6?

MR ALLEN: No, my Lord.

MR JUSTICE FORBES: I think the appropriate order is to quash the whole of Part 2 of the authorisation. It has been made clear by Mr Allen that that will not prevent the Secretary of State, if so advised, to adopt passages from paragraphs other than paragraph 6 of the original Part 2 for the purposes of any fresh authorisation if the Secretary of State feels it is appropriate to make such an authorisation although I can see the point that Mr Tam seeks to make on behalf of the Secretary of State, namely that the only paragraph which I have specifically identified as giving rise to the impermissible delegation on behalf of the Secretary of State is paragraph 6 and that therefore only that paragraph should be deleted. It seems to me perfectly clear from the text of Part 2 that each of the other paragraphs is dependant upon the offending paragraph 6, and if only that paragraph is deleted then it will leave in place paragraphs which, as Mr Allen says, do not make sense in the absence of paragraph 6 and do not have, as Mr Allen expressed it, integrity on their own. I think that is correct.

In my view, the appropriate order to make at this stage is to quash the whole of Part 2 of the first authorisation which leaves in place the balance of the authorisation, namely Parts 1 and 3. I make the order accordingly.

MR ALLEN: The second point is in relation to costs. The argument you heard was directed solely to the first authorisation. Your Lordship will have read the papers and realised that the attack in the original application was in relation to both the first and second authorisations. If one turns to page 1 in the bundle one sees that immediately from section 3, which identifies the decisions of the proposed judicial review as the first and second authorisations. I am not proposing to take you through the entire bundle, but it is patently the case that the bundle deals with both the first and second authorisations, the arguments for and against .....

MR JUSTICE FORBES: As did your skeleton.

MR ALLEN: As did our skeleton. The position was this. The Secretary of State withdrew the second authorisation the day before the hearing in front of your Lordship.

MR JUSTICE FORBES: "Revoked", I think, is the expression used.

MR ALLEN: I think that may be right, yes, revoked it. Our argument is simply this that we should have the costs of the application in whole including the hearing in front of you and including all the preparation, and it should not only be in relation to the debate on the first authorisation. I can deploy more points about it by taking you through the bundle and showing you the extent to which we have had to address the second authorisation. It is clear, we would submit, that the only proper inference to draw is that the litigation provoked the revocation.

MR TAM: In this jurisdiction the mere fact that litigation prompts or is a factor in the decision under challenge being looked at again, or revoked or withdrawn or whatever the appropriate term is for that particular decision, does not necessarily entitle the claimant to costs. There is authority - I think it is a local authority case before Lord Justice Simon Brown - that set out some principles and said that where the permission has been granted but the matter is not eventually heard and determined that the usual course should be no order as to costs unless there is some strong reason to believe the challenge would have succeeded.

The second authorisation is not in that class of case. There are arguments both ways. There is no way of knowing without arguing the point before your Lordship whether the claimants would have succeeded or failed. In that respect we say that the costs order relating to the second authorisation should be no order for costs. It may turn out that it is a relatively small proportion of the costs at the end of the day. We could not possibly argue against the claimant's application for costs in relation to the first authorisation.

MR JUSTICE FORBES: I think it is unrealistic to try and split the costs in a case such as this. In my view, the appropriate order for costs is that the defendant is to pay the claimant's costs to be assessed on a standard basis unless agreed.

MR TAM: The final matter is my application for permission to appeal. This is a difficult and sensitive area in which Parliament has expressly permitted discrimination to take place subject to conditions.

MR JUSTICE FORBES: There is no challenge to the statute, no suggestion that the statute is incompatible and no challenge to the balance of the first authorisation.

MR TAM: No. However the consequence of your decision is that there is a real issue which was argued between the parties as to the meaning of the relevant section of the statute and how much delegation is permitted by the statute to the immigration officer or, to put it another way, what the proper division of function is between the Minister personally and his officials. Clearly, some decision making has to be made by the official before he knows whether or not the process of discrimination that is contemplated can be carried out. The Minister has to make some decisions and the official has to make some decisions. The question is where is that dividing line. That is an important issue in terms of how the Secretary of State manages his department and how authorisations are to be made. The consequence of your Lordship's judgment is that there is, we submit, a real issue about the meaning of the words. If you look at page 85 in the bundle, it is Section 19 (d). The issue is clearest if you look at subsection 3 (a) because there the authorisation is defined as an express authorisation given -

"(a) with respect to a particular case"

that would be an individual case

"or class of case, by a Minister of the Crown acting personally;"

The effect of your judgment is that the words "class of case" is defined very narrowly, that is to say, the Minister must effectively give description or identify the classes of case by specific description.

MR JUSTICE FORBES: In some appropriate way I have tried hard not to prescribe anything that suggested that there was a specific way of doing it.

MR TAM: Obviously, that is right. Either by identifying in the case of this authorisation specific nationalities or by setting a test which is only capable of being answered one way or the other, and it leaves officials with no decision making scope, on one reading of your judgment, as to what nationalities fall within a described class of case or not.

We say that there is a real issue involved here as to whether or not the statute is so narrowly defined. It is an important one because it will greatly affect the way in which the department conducts its business and conducts the authorisation of these matters. We say that it is an arguable point, argued at some length before you, which is fit to be considered by the Court of Appeal in the light of the fact that there is more than one way of reading this and the effects are important.

MR JUSTICE FORBES: Is there anything you want to say, Mr Allen?

MR ALLEN: We say your judgment was right and it was clearly right and this is not a case where permission should be granted.

MR JUSTICE FORBES: Is there anything else, Mr Tam?

MR TAM: No.

MR JUSTICE FORBES: There may be other cases involving these authorisations of this type which may give rise to a point which is more arguable with more prospect of success than in this case. In this case I have come to the firm conclusion that there is no reasonable prospect of success and, given the circumstances of this case, I do not believe that there is any other exceptional reason for giving permission to appeal. Accordingly, permission to appeal is refused.

I shall in a moment read back to you so you have a note of it what I propose to enter on the appropriate form. (Pause) I have written -

"(1) No reasonable prospect of success in the circumstances of this case,"

and

(2) on the particular facts of this case no other exceptional reason for granting permission to appeal."

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