In re Serif Maybasan, Filit Cobantay, Sultan Basanmay, Rifat Oral, Nusret Bakgitar, Mehmet Taycur, Huseyin Maybaskarn
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 10 September 1990 |
| Citation / Document Symbol | [1991] Imm AR 89 |
| Cite as | In re Serif Maybasan, Filit Cobantay, Sultan Basanmay, Rifat Oral, Nusret Bakgitar, Mehmet Taycur, Huseyin Maybaskarn, [1991] Imm AR 89, United Kingdom: High Court (England and Wales), 10 September 1990, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6818.html [accessed 4 November 2019] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
Queen's Bench Division
[1991] Imm AR 89
Hearing Date: 10 September 1990
10 September 1990
Index Terms:
Bail -- refusal of leave to enter -- detention pending examination of applications for political asylum -- whether applicants were detained under paragraph 16(1) or paragraph 16(2) of the second schedule to the 1971 Act -- whether an adjudicator was correct to hold he had no jurisdiction to grant bail -- whether the detention was lawful -- whether an application for habeas corpus was the appropriate way to challenge the detention of the applicants. Immigration Act 1971 sch 2 paras 8, 16(1), 16(2), 18(4), 22.
Removal directions -- stayed by order of the court -- whether applicants were then persons who could be detained while applications for asylum were considered. Immigration Act 1971 (as amended) sch 2 para 8.
Held:
The applicants for habeas corpus were Kurds, Turkish nationals, who had arrived at Dover from Belgium and had claimed political asylum. They had been refused leave to enter and directions had been given for their return to Belgium where their applications would be considered. The applicants sought leave to challenge the Secretary of State's refusal to consider their applications on the merits. In granting leave to move for judicial review, Webster J stayed the removal directions. The Home Office, because of the delays in returning the applicants to Belgium and accepting that Belgium would no longer receive them, decided to examine the applications on the merits. The applicants were consequently detained, pursuant to the provisions of the second schedule to the 1971 Act, while their claims were investigated. An application for bail was made to an adjudicator. The Chief Adjudicator concluded that the applicants, having been refused leave to enter, were detained under paragraph 16(2) of the second schedule and accordingly he had no jurisdiction to grant bail. An application was then made for habeas corpus. For the Secretary of State it was argued that the application was misconceived: the detention under the Act was lawful and the appropriate challenge to the Chief Adjudicator's ruling was by way of judicial review. For the applicants it was argued that in any event they were detained under paragraph 16(1) of the 1971 Act. The removal directions had been stayed by Webster J and consequently the immigration officer had no power to detain the applicants under paragraph 16(2), that paragraph relating only to those to whom removal directions might be given under paragraph 8 of the same schedule. It was also argued that the applicants had been detained for an unreasonable time. Held: 1. It was inappropriate, in the events which had happened, to apply for habeas corpus. The detention of the applicants was lawful pursuant to paragraph 18(4) of the second schedule to the 1971 Act. The Chief Adjudicator's refusal to grant bail should have been challenged by way of judicial review. 2. However, on the facts and the applicants having been refused leave to enter, the court concluded that the detention was under paragraph 16(2) and not 16(1): it followed that the Chief Adjudicator had no power to grant bail. 3. Although the removal directions had been stayed by order of the High Court, the applicants were still persons to whom such directions could be given as provided by paragraph 8(2) of the second schedule (as amended). 4. There was also power, under paragraph 16(2) to detain the applicants while their claims for asylum were considered: the powers contained in paragraph 16(2) were not limited to detaining a person pending the giving of removal directions, R v Immigration Appeal Tribunal ex parte Secretary of State for the Home Department followed. 5. Looking at the sequence of events, the applicants could not be said to have been detained for an unreasonable time.Cases referred to in the Judgment:
R v Immigration Appeal Tribunal and an Immigration Appeal Adjudicator ex parte Secretary of State for the Home Department [1990] 1 WLR 1126; [1990] Imm AR 492.Counsel:
IA Lewis for the applicants; D Pannick for the respondent PANEL: Otton JJudgment One:
OTTON J: These are applications by seven Turkish Kurds for leave to apply for writs of habeas corpus. The applicants all arrived together at Dover on 10 July. They were found by customs officials in the back of a lorry when the vehicle had arrived at Dover Eastern Docks on a ferry from Belgium. When they came to the notice of the officials all the applicants claimed asylum in the United Kingdom, stating that they feared persecution in Turkey. Their claims were all referred to the Home Office, who decided that it would not be necessary to consider any of the asylum claims because Turkey was not the only country to which the applicants could be returned; they could be properly returned to Belgium from whence they had come. On the following day each of the applicants were served with a notice of refusal of leave to enter. This was on the basis, first, that they did not hold a valid national passport or other documents satisfactorily establishing their identity and nationality and secondly, that their asylum claim did not need to be considered for the reasons which I have given. Removal directions to Belgium were set for a week later (18 July). However, on 17 July the applicants applied to Webster J for leave to move to challenge the decision of the Home Office declining to consider the substantive asylum claims. Webster J granted leave to move and imposed a stay on the removal. The effect of that order has a considerable bearing in this application. At that stage the Home Office, in view of the grant of leave to move and the delay which was then bound to occur before any substantive hearing, decided that there was then no prospect of returning the applicants to Belgium because the Belgium authorities would simply not have been prepared to receive them. The Home Office accordingly decided to consider the substantive asylum claims for each of these applicants, and their solicitors were so advised. The applicants were interviewed in relation to their asylum claims in mid-August, and I am informed in the affidavit put in today on behalf of the respondent that the matter is now with the Home Office Specialist Refugee Unit for decision. A decision is expected in about three to four weeks in respect of each of the applicants. The affidavit continues: "5. Since they came to notice the applicants have been detained pursuant to paragraph 16 of Schedule 2 to the Immigration Act 1971 as amended, initially under paragraph 16(1) and since refusal of leave to enter under paragraph 16(2). They are currently held in Canterbury Prison . . .". In the meantime their cases are being considered. Paragraph 16 reads as follows. It is headed: "Detention of persons liable to examination or removal (1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter. (2) A person in respect of whom directions may be given under any of paragraphs 8 to 14 above may be detained under the authority of an immigration officer pending the giving of directions and pending his removal in pursuance of any directions given." Paragraph 8 reads as follows: (1) Where a person arriving in the United Kingdom is refused leave to enter, an immigration officer may, subject to sub-paragraph (2) below -- (a) give the captain of the ship or aircraft in which he arrives directions requiring the captain to remove him from the United Kingdom in that ship or aircraft; or (b) give the owners or agents of that ship or aircraft directions requiring them to remove him from the United Kingdom in any ship or aircraft specified or indicated in the directions, being a ship or aircraft of which they are the owners or agents." The rest of that sub-paragraph is not relevant. The matter was considered by an adjudicator, and today a copy of his adjudication has been provided. It came before him by way of applications for bail and the provisions of paragraph 22 of the second schedule to the 1971 Immigration Act. He considered these matters on 4 September. The applicants were fortunate to be represented by Mr Lewis of counsel, who has been able to give me considerable assistance in prosecuting this application today. When the adjudicator considered this matter he recorded as follows: "Counsel for the applicants submitted that, since his clients were being detained pending examination of their claim to asylum, they were entitled to apply for bail under the provisions contained in paragraph 22(1) of the second schedule . . . as read with paragraph 16(1)." Mr Lewis would want me to emphasise subsection (1). "Mr Hebden, however, submitted that, since a decision had been taken to refuse the applicants leave to enter the United Kingdom, I had no jurisdiction to consider their applications for bail under paragraph 22 of the schedule. After hearing further argument I accepted Mr Hebden's submission stating that I would give my reasons in writing . . .". He then goes on to set out the relevant parts of paragraph 16(1), (2) and 22(1). He concludes as follows: "I must find that my jurisdiction to grant bail to persons other than appellants is strictly limited by the provisions of paragraph 22(1) set out above. I accept that the present applicants have been detained for periods considerably in excess of seven days and that, had no decision been taken to refuse them leave to enter, they would be entitled to bail. However I must accept that all seven applicants are the subject of current and valid decisions refusing them leave to enter and that directions for their removal to Belgium are still in force. The fact that the Secretary of State has directed that they be further examined in regard to their claim to asylum cannot extend my jurisdiction to grant bail whilst these decisions to refuse the applicants leave to enter and to give directions for their removal to Belgium are still in force. The applicants are accordingly detained under the provisions of paragraph 16(2)" -- my emphasis -- "and not paragraph 16(1)" -- my emphasis -- "of the second schedule to the Act and I must therefore find that I have no jurisdiction to consider the present applications under paragraph 22(1)." Mr Pannick on behalf of the Home Office takes a preliminary point. He submits that an application for habeas corpus in circumstances such as this is wholly inappropriate. The essence of the writ for habeas corpus is that the application is based upon an assertion and establishing that the applicant is being held unlawfully. The thrust of the case on behalf of the applicants is that the adjudicator erred in holding that he was acting under paragraph 16(2) and that in reality, and in law, the applicants are in fact being held under 16(1). In my judgment there is really no doubt that the detention here is anything other than lawful. Indeed when one looks at paragraph 18(4) of the same schedule one finds: "A person shall be deemed to be in legal custody at any time when he is detained under paragraph 16 or is being removed in pursuance of sub-paragraph (3) above." In those circumstances the point made by Mr Pannick is, in my judgment, well-founded. Mr Lewis has tried with great skill to get around that fundamental hurdle but, in my judgment, to no avail. I am satisfied that the writ of habeas corpus is not appropriate in this situation. By virtue of paragraph 18(4) these applicants are deemed to be in legal custody because they are being detained under paragraph 16. It follows that it is in this respect immaterial whether they are being held under sub-paragraph (2), as the adjudicator found, or under sub-paragraph (1), as Mr Lewis contends. It seems to me, therefore, that the only possible course for these applicants to take, if they wish to continue this line of argument, is not to seek a writ of habeas corpus but to seek leave to apply for judicial review of the adjudicator's decision. This would be on the basis that he misdirected himself on a material point of law, namely, whether he proceeded erroneously on the basis of sub-paragraph (2) and that these persons were more accurately detained under sub-paragraph (1), which would have had the effect that he would have had power to grant bail. He was therefore in error in holding that he had no jurisdiction to consider the matter as they were being held under sub-paragraph (2) only. However in defence to the argument put forward by Mr Lewis, and in case too that I should be wrong on the finding on the preliminary point, it is right that I should return to the arguments advanced on behalf of the applicants. In paragraph 8 of the affidavit, on their behalf, it is stated as follows: "I respectfully submit to this Honourable Court that the continuing detention of the applicant(s) is unlawful and unreasonable on the following grounds: (i) The power to detain under . . . paragraph 16(2) is only available in respect of those to whom directions may be given under paragraphs 8 to 14 of schedule 2. It is submitted that there is no such power to give directions to the applicant under paragraphs 8 to 11 because of the . . . order of Webster J, and no such power to give directions under paragraphs 12 to 14 as they are only applicable to seamen and aircrews. Accordingly it is submitted that there is no power to detain the applicant under paragraph 16(2)." Of course Mr Lewis is absolutely right in saying that paragraphs 12 to 14 are of no relevance. I am satisfied that the only relevant paragraph is paragraph 8, to which I have referred. I have come to the conclusion that I cannot accept that contention. The effect of Webster J's order did not deprive the authorities of the power to make or give directions. The effect of the executive action at the port of entry was that they were refused leave to enter, and that is their status notwithstanding any order by the court granting leave for judicial review. To take the matter shortly, notwithstanding the stay pending the determination of the asylum application, there is still power for such directions to be given. Each applicant is still a person under paragraph 8 to whom such directions may be given. If the application for judicial review were to fail then the situation may change. But at the moment there is nothing to stop the anticipatory steps being taken. Indeed paragraph 9 of the schedule to the 1988 Act, to which I was referred, clearly, in my judgment, allows for anticipatory directions to be given. The paragraph provides: "At the end of paragraph 8(2) of Schedule 2" -- that is the 1971 Act -- "there shall be inserted the words 'except that directions may be given under sub-paragraph (1)(b) or (c) after the end of that period if the immigration officer has within that period given written notice to the owners or agents in question of his intention to give directions to them in respect of that person'." That clearly envisages that an immigration officer may still have the intention to give directions, and that intention has not been in any way abrogated by the order of Webster J. It follows that there is nothing to prevent those steps being taken. The Home Office today through counsel has given an indication, indeed an assurance, that no steps will be taken to implement such directions pending the determination of the application for political asylum. I was invited by Mr Pannick to discharge the order of Webster J; but in all the circumstances, in view of the sensitive nature of these applications, in the exercise of my discretion I decline to take that course and the stay will remain in place until the appropriate time. The second substantive point taken by Mr Lewis is as follows. I return to paragraph 8(ii) of the affidavit. "The power to detain under . . . paragraph 16(2) is only available pending the giving of directions and pending the removal of a person. It is submitted that the reality of the situation is that the applicant is being detained for other reasons, namely the consideration of his application for asylum." I can deal with this point very briefly. I consider on a proper construction of paragraph 16(2), and in the light of the adjudicator's approach to these matters and the evidence before me, that the detention is in fact in reality and in law under paragraph 16(2). One of the purposes of the detention is to allow the consideration of the application for asylum. Without going into authorities, they show that it is lawful to detain a person pending a determination of an application for political asylum. I refer to the most recent decision of the Court of Appeal in R v Immigration Appeal Tribunal & anr ex parte Secretary of State for the Home Department [1990] 1 WLR 1126 and the express approval given by Stuart-Smith LJ to the judgment of Auld J in a similar situation when he had occasion to consider the effect of paragraph 16(1) and (2) of schedule 2. The judgment of Auld J is set out at page 1133 D to G -- and it is quite clear that the Court of Appeal agreed that the argument to the contrary was misconceived and that they could not improve upon the way that Auld J had approached the matter -- where he said: "First, where an unsuccessful applicant has been detained under paragraph 16(2), an immigration officer does not need to exercise his powers of detention under paragraph 16(1) while he conducts an examination under paragraph 2 of schedule 2 of any further application. The applicant is not entitled to be detained under paragraph 16(1) as soon as he makes a further application. He does not, therefore, necessarily bring himself within paragraph 16(1) by making a further application. Accordingly, he need not become subject to any conflict that there might be between the possibility of being granted bail under paragraph 16(1) but not under paragraph 16(2). Secondly, an applicant who has been refused leave to enter and detained under paragraph 16(2), and whom an immigration officer on a further application might unnecessarily choose to detain under paragraph 16(1), does not become entitled to release on bail on a successful application under paragraph 22 when he makes a further application, any more than a man committed for trial in custody on one offence becomes entitled to release on bail if committed for trial on bail for another offence. The bail, if granted on the second application, would simply not be operable. The reality is that an adjudicator would not grant it, knowing that the applicant was also a person detained under paragraph 16(2) as one who had been refused leave to enter on his original application and who was subject to removal directions." I gratefully adopt that reasoning and apply it to this case. I regret that I must reject the second substantive ground advanced by Mr Lewis. I turn to the third point, which is contained in the affidavit as follows: "It is submitted that the power of detention is subject to an implied time limit, a period that is reasonably necessary for the purposes of the detention. It is submitted that this time period has elapsed. Further or alternatively it is submitted that the aforementioned Chief Immigration Officer is not likely to make any directions as to removal within a reasonable period, and accordingly he should not exercise his power of detention." These applicants arrived as recently as 10 July. The process was interrupted by the order of Webster J on 17 July, and thereafter the Home Office decided to carry out interviews for the purposes of determining the claim for political asylum. Today is 10 September, and the affidavit predicts a decision within the next three weeks or so. In my judgment, there is nothing anywhere approaching a delay which is unreasonable. The timetable, if anything, is remarkably expeditious. In those circumstances I consider any criticism based upon an unreasonable period of time having elapsed to be wholly unfounded. I would reject that submission also. Paragraph 8(iv) avers: "One Mehmet Akbas who arrived at Dover at the same time as the applicant, and who was initially detained was granted temporary leave to enter on 22 July 1990. It is submitted that there is no material difference in the applicant's circumstances not to release him from detention." It is of course not known upon what basis Mr Akbas was granted temporary leave to enter or whether there were any material circumstances which were different from those of any of these applicants. It is not for me to explore that matter, and certainly on its own it would not amount to a ground for asserting that the current detention was in itself unlawful, which is of course the basis of any application for habeas corpus. It may be that there are special circumstances which justify that course taken by the authorities; it is not for me to speculate what they might be. Each case must be considered on its merits, and I have no reason to doubt that the authorities acted properly and judicially when considering each of these applications in turn. Accordingly, I find no force in that submission and must reject it. Mr Lewis mounted other attractive arguments, but I do not think, that in the circumstances of the case I am required to set them out in any detail. Suffice it to say that interesting as they were, they were without substance. Having reconsidered the matter I am satisfied that I would not be justified in granting this application for leave to apply for a writ of habeas corpus based on such arguments. They may, however, be more appropriate and carry more force if an application for judicial review were to be mounted hereafter, about which of course I make no further comment. In those circumstances I refuse each of these applications.DISPOSITION:
Applications refusedSOLICITORS:
Daykin Carr, London, E8; Treasury SolicitorCopyright notice: Crown Copyright
