Sakala v. Secretary of State for the Home Department

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	6 December 1993
Citation / Document Symbol	[1994] Imm AR 227
Cite as	Sakala v. Secretary of State for the Home Department, [1994] Imm AR 227, United Kingdom: Court of Appeal (England and Wales), 6 December 1993, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b62928.html [accessed 27 May 2023]
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SAKALA v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1994] Imm AR 227

Hearing Date: 6 December 1993

6 December 1993

Index Terms:

Adjudicator -- political asylum appeal -- dismissed -- recommendation to Secretary of State that applicant be granted period of exceptional leave -- Secretary of State did not follow adjudicator's recommendation -- whether there was a legitimate expectation on the basis of ministerial statements that the Secretary of State would always follow an adjudicator's recommendation.

Judicial review -- applicant's representative in reliance on adjudicator's recommendation made no application to Tribunal to appeal against adjudicator's dismissal of appeal -- attempt to challenge adjudicator's determination on the merits by way of judicial review -- whether an abuse of the process of the court.

Held:

Renewed application to move for judicial review following refusal by Latham J. A special adjudicator had dismissed the applicant's appeal against the refusal by the Secretary of State to grant her asylum. Albeit the adjudicator had dismissed the appeal, he had, unusually, recommended that the Secretary of State grant the applicant a period of leave, exceptionally, outside the rules. The Secretary of State did not follow the adjudicator's recommendation. Counsel argued that on the basis of ministerial statements made during the passage of the 1988 Act, the applicant had a legitimate expectation that the Secretary of State would follow an adjudicator's recommendation unless it were perverse.

In reliance on the adjudicator's recommendation the applicant's representatives had not applied, within the time-limit, to appeal to the Tribunal. Counsel sought to challenge the substance of the adjudicator's determination by way of the application for judicial review. The court considered that that might be an abuse of the process of the court.

Held

1. It was clear from the wording of the ministerial statements that there was no undertaking that the Secretary of State would invariably follow an adjudicator's recommendation: no legitimate expectation arose that he would do so.

2. It could not be argued that the adjudicator had misdirected himself in law. However, even if he had the court would not have been likely to have granted leave on that basis, where the time-limit had been allowed to lapse for pursuing the issue by way of a statutory remedy.

Cases referred to in the Judgment:

Secretary of State for the Home Department v Sivakumaran and ors [1988] 1 AC

958: [1988] Imm AR 147.

R v Immigration Appeal Tribunal ex parte Secretary of State for the Home Department [1990] Imm AR 166.

R v Secretary of State for the Home Department ex parte Sakala [1994] Imm AR 142.

Counsel:

Miss S Henderson for the appellant; R Jay for the respondent

PANEL: Sir Thomas Bingham MR, Rose, Waite LJJ

Judgment One:

SIR THOMAS BINGHAM MR: This is a renewed application for leave to move for judicial review following the refusal of leave by Latham J on 25 November of this year. The applicant is aged 26 and a citizen of Malawi. In about August 1992 she left Malawi for Zambia and remained in Zambia for some ten-and-a-half months or so. In July of this year she left Zambia and arrived in the United Kingdom on 9 July when she sought, but was refused, leave to enter the country as a visitor. Three days later, on 12 July, she claimed political asylum. That led to an interview which took place on the following day, on 13 July, and in due course led to a refusal of asylum by the Secretary of State on grounds that were communicated in a letter of 27 August 1993. Put very shortly the basis of the Secretary of State's refusal was that he did not accept that the applicant had a fear of persecution and moreover thought that there was no ground for such a fear having regard to the applicant's personal history and the state of affairs in Malawi, particularly in the light of changes which had occurred since she left.

The applicant appealed against the refusal of asylum. That appeal was heard by a special adjudicator on 11 October. He delivered his decision on 19 October and dismissed the applicant's appeal. He did not dismiss it on the basis that the applicant herself did not subjectively entertain a fear of persecution. He found that she was a truthful person and that she did entertain such a fear but felt obliged to hold that her fear was not well-founded. He said in the first full paragraph on the last page of his adjudication:

"However, I take the view that the position in Malawi is much too fluid at present for one to be able to state with any authority that objectively as against subjectively, that fear is well-founded. Applying the tests in Sivakumaran and a lower standard of proof, I am nevertheless not inclined to take the view that the appellant has shown a well-founded fear of persecution other than subjectively upon the basis of the evidence before me."

He then, however, went on to adopt what he described as an extremely unusual course but one in his judgment that was justified by all the circumstances. That course was strongly to recommend to the Secretary of State that pending the resolution of the situation in Malawi the applicant should be granted, in the first instance, one year's exceptional leave to remain in the United Kingdom outside the rules and that no action should be taken to return her to Malawi until the Secretary of State had had time to consider that strong recommendation. He went on to say that the recommendation was not made lightly but if recommendations were made frequently that would undermine their force:

"But, having had the opportunity to read all the documents and hear all the evidence personally in respect of this appeal which would have succeeded had the Secretary of State not set out the changes in Malawi which have occurred in recent months, it would, in my view, be premature to assume that those changes will necessarily occur at a rate fast enough to take away the objective danger as against the subjective fear of the appellant in this case.

Thus, although with some regret, the appeal is dismissed, the recommendation is made in the strongest possible terms."

The evidence shows that that recommendation was considered at a high level in the Home Office but the decision was taken not to accede to it. The Secretary of State's decision was communicated to the applicant in a letter of 9 November 1993 in which it was said that the Secretary of State had carefully considered the recommendation but did not believe that he would be justified in accepting it. The letter went on to refer again to the changes which had occurred in the political situation in Malawi since the applicant had left and the Secretary of State could see no reason to believe that the applicant risked any kind of harassment. He added that he could find no other reason to justify allowing the applicant to remain exceptionally. It was in the light of that decision that the applicant sought leave to apply for judicial review. The basis upon which that application was made was that statements had been made in Parliament which led to a legitimate expectation that recommendations made by special adjudicators would be followed unless they were bad in law or perverse. In particular, reliance was placed on a passage in the committee proceedings of the Immigration Bill on 12 January 1988 when the responsible minister of the Home Office in the course of a number of answers said:

"I am therefore telling him" -- and other members of the Committee -- "of Home Office experience. Adjudicators decide a case on the rules, of course. But if they refuse the appeal they then may make an informal recommendation to the Home Secretary on the basis of compassionate circumstances."

Then after reference to matters that I can omit he continued:

"Appeals such as variation of leave appeals, to which he referred, must be decided on the basis of the rules, but the adjudicator may make any informal recommendation that he sees fit about future action by the Secretary of State, for example, to vary or extend leave, and this may have reference to special compassionate factors.

I do not for a second deny that the practice between one adjudicator and another may differ. But adjudicators are not appointed by the Home Office; they are appointed by the Lord Chancellor's Department and are independent of the Home Office. And, like judges, they may well take a slightly different approach. But such informal recommendations are always carefully considered at the Home Office. They are not necessarily acted upon, if the case then proceeds to deportation, compassionate factors are taken into account by the Secretary of State before he decides whether to make the deportation order.

I was asked about statistics for the number of occasions on which adjudicators have made informal recommendations drawing attention to compassionate circumstances. I do not have any such statistics, but our impression is that they make such recommendations frequently, and when a recommendation has been made the Home Office almost invariably acts upon it unless it is perverse or against the law. That is the practice."

Our attention has also been drawn to further answers given on 16 February 1988 when the Bill came before the House. On that occasion the same Home Office minister referred to a letter that he had written to the United Kingdom Immigrants Advisory Service in which he had said, (and he quoted on the floor of the House) the following:

"Moreover, the Home Office's experience is that the appellate authorities do make use of their freedom to recommend the use of the Secretary of State's discretion. If a recommendation is made on compassionate grounds the instructions to the immigration department's case workers are quite explicit in stating that the normal practice should be to comply with that recommendation. Such matters are treated very seriously indeed and any decision not to accept an adjudicator's recommendation must be taken at senior level."

Then lastly for present purposes reference was made in the course of the same speech by the minister to the following extract:

"The next case, which I did not mention because I wanted to save the time of the House, concerns a Miss M, who arrived in the United Kingdom in July 1986. The written determination of the adjudicator formally dismissed her appeal, but he recommended that the Secretary of State should exercise his discretion in her favour exceptionally outside the rules. That recommendation has been accepted.

That is the common working practice in the Home Office. Recommendations come up from cases within the rules to the Home Office. They are seriously considered and, in many cases, are accepted."

It is on the basis of that material that Miss Henderson, for the applicant, submits that the statements by the minister in Parliament gave rise to a legitimate expectation that recommendations would be followed unless they were perverse or unlawful. She acknowledges that there is no statutory jurisdiction of the adjudicator to make any recommendation at all in such circumstances but says that in the light of the minister's statement they must be followed unless those exceptional circumstances apply.

Mr Jay, for the Secretary of State, points out that these remarks must be understood in context. The debate took place in the context of a proposal by the Government to restrict the rights of immigrants, in certain circumstances, to appeal against deportation orders. It was in that context that the minister, while acknowledging the restrictions on rights of appeal, emphasised that the Home Office would, where recommendations were made, give them very serious consideration. Mr Jay points out that in the present case the applicant did indeed enjoy full rights of appeal and, therefore, it is said that the context is not that to which the minister was referring. But quite apart from that it is submitted by Mr Jay that even taken at their strongest, and treating the remarks as directly applicable to the situation, nothing that the minister said, fairly read, could give rise to the expectation which is alleged. At the very highest he said that recommendations would be very seriously considered but nothing gave rise to an expectation that they would be accepted. Indeed, it is said that the minister made it clear that while they usually would, they would not necessarily, be followed. On my reading of what the minister said that is a correct submission. In my judgment the minister never said that recommendations would invariably be accepted unless they were perverse and unlawful. He indicated that they would be given very serious consideration and that great weight would be attached to them. In this instance, unhappily for the applicant, the Secretary of State has seen fit not to accept the recommendation, and in my view he was entitled not to do so, and did not betray any promise made on behalf of the department in so doing.

In renewing this application for leave to move Miss Henderson has sought to raise a point which was not raised before the learned judge to whom application was made but which has been succinctly argued before us without objection from Mr Jay. Following the decision of the adjudicator the applicant did not take steps to appeal against his decision within the time limit because, as one readily accepts, those acting for the applicant expected the recommendation to be accepted. Thus it was that the non-extendable time limit expired before notice of appeal was given. Accordingly, on behalf of the applicant, Miss Henderson seeks leave to move for judicial review challenging the adjudicator's decision. She submits that the special adjudicator misdirected himself in the passages that I recited earlier. She acknowledges that he made reference to the correct tests laid down in Sivakumaran and was entitled to conclude, if so persuaded, that there was no well-grounded basis for the applicant's fear of persecution but she says that he went on, in the concluding sentence of the long paragraph, to say:

"It would . . . be premature to assume that those changes will necessarily occur at a rate fast enough to take away the objective danger as against the subjective fear of the appellant in this case . . ."

Thus, he misdirected himself.

I do not myself find that sentence a very easy one to read. It may be that he meant to say that the circumstances would not change fast enough to remove her subjective fear, as opposed to the objective danger. That would seem to me more consistent with his earlier observation and indeed it is difficult to understand it sensibly any other way. But, be that as it may, I am not for my part persuaded that there is any indication here that the special adjudicator, having stated the right approach, then applied a wrong approach. I do not, therefore, conclude, on the merits, that the applicant has made good her criticism.

There is, however, a further objection to the course adopted here which is that it does seem to me to be an abuse of process in principle for an applicant, having allowed a time-limit to expire, then to seek to challenge by judicial review that which should have been challenged by way of appeal. In describing it as an "abuse of process" I do not mean to be understood to be saying that it can never be right to follow that course. I can imagine circumstances in which it could and it may be that R v Immigration Appeal Tribunal ex parte Secretary State for the Home Department [1990] Imm AR 166 is an example of such a case. It is unnecessary to decide whether that is so or whether on that occasion too low a threshold test was applied. In my judgment the two cases are distinguishable. There the error was to address a notice of appeal by a clerical mistake to the wrong address with the result that notice of appeal was not formally given within the period, whereas here there was, albeit on mistaken grounds, what has to be regarded as a deliberate decision not to appeal when giving such notice would have been a sensible precaution in the light of the recommendation that had been made.

I do not, therefore, think that on procedural grounds this is an application that this court should be at all ready to entertain but I would not put the decision on that ground but on the ground that even if the application was entertained it is one that would not succeed. I, therefore, would refuse leave to move for judicial review on either of the grounds argued.

Judgment Two:

ROSE LJ: I agree.

Judgment Three:

WAITE LJ: I agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Shan & Co, South Harrow; Treasury Solicitor