Odishu 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	7 June 1994
Citation / Document Symbol	[1994] Imm AR 475
Cite as	Odishu v. Secretary of State for the Home Department, [1994] Imm AR 475, United Kingdom: Court of Appeal (England and Wales), 7 June 1994, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b65c20.html [accessed 27 May 2023]
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.

ODISHU v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1994] Imm AR 475

Hearing Date: 7 June 1994

7 June 1994

Index Terms:

Political asylum -- application refused -- Secretary of State proposed to remove applicant to Germany -- appeal dismissed -- adjudicator recommended review by Secretary of State on compassionate (non-asylum) grounds -- case reviewed by senior immigration officer -- removal directions upheld -- whether at all stages pursuant to the Act and rules an asylum case was to be considered by persons who were not immigration officers -- whether applicant had legitimate expectation that would occur. Immigration Act 1971 sch 2 para 1(3): HC 251 paras 75, 180K.

Held:

Renewed application for leave to move for judicial review, following refusal by Morison J. The applicant was a citizen of Iraq whose claim for political asylum had been refused by the Secretary of State who had characterised it as without foundation: he proposed returning the applicant to Germany. An appeal was dismissed by a special adjudicator.

Before the adjudicator it was conceded that the applicant had no claim to asylum: he had no well-founded fear of persecution. His asylum application was a device for securing leave in the United Kingdom where his sister was receiving medical treatment: he wished to look after her. The special adjudicator recommended the Secretary of State to review the case outside the rules on compassionate grounds.

The case was fully reviewed by three immigration officers. The removal directions were upheld.

On application for judicial review it was argued by counsel that it was an error of law for the review to be carried out by immigration officers. The rules envisaged asylum cases being considered by persons who were not immigration officers, and the applicant had a legitimate expectation that that procedure would be followed.

Held

1. Following Oladehinde the point was unarguable.

2. By applying the Carltona doctrine, there did not have to be any formal delegation of powers by the Secretary of State to the immigration officers.

3. There were no circumstances in the case that could have led to the immigration officers being embarrassed in the discharge of their statutory duties.

Cases referred to in the Judgment:

Carltona Ltd v Commissioners for Works [1943] 2 All ER 560. Shamusideen Oladehinde v Immigration Appeals Tribunal [1991] 1 AC 254: [1991] Imm AR 111.

R v Secretary of State for the Home Department ex parte Odishu (unreported, QBD, 3 June 1994).

Counsel:

R Scannell for the applicant; I Burnett for the respondent

PANEL: Balcombe, Hirst, Hoffmann LJJ

Judgment One:

BALCOMBE LJ: This is a renewed application for leave to apply for judicial review, the original application having been turned down by Morison, J on 3 June of this year.

The applicant is an Iraqi citizen and is an Assyrian Christian. He arrived in this country from Germany on 10 March 1994, and claimed asylum upon arrival at Heathrow. In accordance with the rules, his application was not dealt with by the immigration officer on the spot, but sent up to the Home Office, and on 16 March his application was refused.

A letter accompanying the formal refusal stated:

"You have applied for asylum in United Kingdom on the grounds that you have a well-founded fear of persecution in Iraq for reasons of race, religion, nationality, membership of a particular social group or political opinion.

However, Iraq is not the only country to which you can be removed. You arrived from Germany (where you admit you entered clandestinely) and flew to the United Kingdom from Cologne. You are, under [paragraph] 8(1)(c) of Schedule 2 of the Immigration Act 1971 returnable to Germany which is a signatory to the 1951 UN Convention relating to the Status of Refugees.

The Secretary of State, on the basis of his knowledge of the immigration policies and practices of Germany and on previous experiences in returning passengers to Germany has no reason to believe that, in the circumstances of your particular case, the authorities there would not comply with their obligations under the Convention.

Paragraph 180K of the Immigration Rules provides that an application will normally be refused without substantive consideration if there is a safe third country to which the applicant can be sent. The Secretary of State can find no grounds for departing from this practice in your case. He therefore hereby certifies that your claim that your removal from the United Kingdom would be contrary to the United Kingdom's obligations under the Convention, is without foundation as it does not raise any issue as to the United Kingdom's obligations under the Convention."

The applicant does not now seek to contend that this decision by the Secretary of State can be challenged in any way whatsoever.

However, after the receipt of this determination, the applicant tried to invoke compassionate grounds for his staying in this country. He did it in two ways: in the first instance on 13 April 1994 the Refugee Legal Centre on his behalf wrote to the chief immigration officer at terminal two at Heathrow, setting out the condition of the applicant's sister, who is resident in the United Kingdom.

She had first come to this country in December 1991 for medical treatment and was later granted exceptional leave to remain. Her medical condition is set out in a letter accompanying that from a Dr David Poole of the Hurley Clinic, who sets out the applicant's sister's medical history, and in effect says:

". . . it is essential that she has someone staying with her.

I would strongly support any application for her brother, who is clearly caring and involved, to come and live with her.

Another very important issue is that [the applicant's mother] has died of heart disease. [The sister] does not know this yet as it would be a tremendous and traumatic shock to her."

Indeed, the letter from the Refugee Legal Centre goes on to state that in fact the applicant had previously applied for a United Kingdom visa in Turkey in January 1993. His application was refused. It was then that he decided that he must enter the United Kingdom by any means possible in order to be with his sister.

As well as making that application by letter, the applicant also appealed to the adjudicator, but on his appeal, his representative made it clear that he did not seek to challenge the decision to refuse asylum on substantive grounds, but wished to make a submission to the adjudicator with a view to the adjudicator making a recommendation exceptionally, outside the rules, to the Secretary of State to enable the applicant to remain in the United Kingdom. That again was on compassionate grounds relating to the health of the applicant's sister.

The applicant's plea to the adjudicator was successful to this extent, in that the adjudicator concludes her determination and reasons with the following words:

"At the termination of the hearing I indicated that as the appeal had been conceded I had no choice but to find that the certificate was good and as a result of that to dismiss the appeal. As to the matter of a recommendation however it does seem that there are compassionate circumstances in this case which should be taken into account. The information is now before the Secretary of State and I would strongly recommend to the Secretary of State that he considers the compassionate aspects of this claim exceptionally outside the Rules before taking any further action in relation to this particular appellant."

That indeed was done. But, of course, as is only to be expected, the matter was not considered by the Secretary of State in person but was entrusted by him to a civil servant, in fact to more than one civil servant, as we now know from the material that has been put before us. There were three who were involved, a Mrs Hirst, who is apparently a chief immigration officer, not at any airport but at the central office of the immigration service, Lunar House. There was also involved a Mr Taylor, and a Mr Birch.

Again, the decision was taken not to turn down the applicant's application to be allowed to stay on compassionate grounds on paper alone. He was given a further interview by a Mr Harman, also an immigration officer, which was reported on 25 May. We have seen both the manuscript notes of that interview and Mr Harman's report which went back to the other officers, in particular Mrs Hirst, to whom I have already referred.

The upshot of that was that the application was turned down by a letter dated 29 May addressed to the Refugee Legal Centre. The chief immigration officer sets out the position as follows:

"I refer to your letter of 13 April 1994 in which you apply for your client to be granted exceptional leave to remain on compassionate grounds.

As you are aware, the compassionate aspects of your client's adjudication were redirected to the Secretary of State by an Adjudicator in her determination dated 18.04.94. On 20.05.94 your client was interviewed at Campsfield House Immigration Detention Centre but was unable to offer any further information as to why he should not be removed from this country.

The Secretary of State, with the information before him, decided not to allow your client to remain here exceptionally outside the Immigration Rules."

The letter then refers to some internal matters which, although Mr Scannell for the applicant placed some weight on them, do not seem to me to add anything to the matter. It then refers again to the interview, and the contents of the letter with the enclosure from the Hurley Clinic. It says:

". . . the Chief Immigration Officer duly considered your client's fresh application for leave to enter the United Kingdom but decided to refuse the application for the reasons set out in the enclosed copy of a letter which was handed to your client."

That letter is in formal terms, and refers to the initial refusal of leave for asylum on 16 March:

"On 13.04.94 your representatives applied for you to be granted leave to enter on compassionate grounds. You have today confirmed that this is the case and that you wish to enter the United Kingdom in order to be with your sister. You do not hold a valid national passport or other document satisfactorily establishing your identity and nationality nor do you have a visa, as required under the Immigration Rules, for this purpose. Furthermore you do not otherwise qualify for entry under any other provision of the Immigration Rules.

I therefore refuse you leave to enter the United Kingdom."

Then there is a statement that it was proposed to give direction for the applicant's removal to Germany. It was in those circumstances that the application for judicial review was made.

Before Morison, J the application was apparently based on two grounds: one was the ground with which I shall deal in a moment; the second was a submission that the Secretary of State's decision was perverse. That second ground has not been argued before us, and I need say no more about It.

So far as the ground upon which Mr Scannell for the applicant now seeks to rely, it is based upon an alleged distinction between immigration officers on the one hand and civil servants in the Home Office in general on the other. He referred us first to schedule 2 to the Immigration Act 1971, in particular to paragraph 1 sub-paragraph 3 which provides:

"In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given by the Secretary of State",

which undoubtedly considers immigration officers as a particular class of civil servant.

Then Mr Scannell referred us to paragraph 75 of the immigration rules, as contained in the current statement of the rules which appears in HC 251 as amended, and it is in these terms:

"A person subject to immigration control may seek to enter the United Kingdom by applying for asylum as a refugee or may otherwise indicate a fear of being required to return to his country of origin or habitual residence. All such cases are referred to in these rules as 'asylum applications'. Every asylum application made by a person at a port or airport in the United Kingdom will be referred by the Immigration Officer to the Home Office for determination by the Secretary of State in accordance with the provisions of Part XIII of these rules. Until such a case has been determined by the Secretary of State no action will be taken to require the person's departure from the United Kingdom."

The only other provision of the immigration rules to which we were referred by Mr Scannell is rule 180K. That is the rule which in effect incorporates the provisions of the 1951 United Nations Convention about refugees to which this country has adhered. It seems to be common ground that it was observed in the present case.

At the end of the day, Mr Scannell's argument comes down to one comparatively short point. As I said, it is now conceded that all three officers who considered the applicant's compassionate appeal were themselves immigration officers, but not, I hasten to add, immigration officers at a point of entry at the airport. They were all part of the establishment at the central office of the immigration service, Lunar House, which of course is a department of the Home Office.

Essentially, Mr Scannell's point is that, under rule 75, construed in the light of paragraph 1(3) of schedule 2 of the Immigration Act 1971, a person who has applied for asylum is always entitled to have his application at every stage considered by someone who is not an immigration officer. In my judgment that submission is simply untenable, even if it were not for the decision of the House of Lords in Shamusideen Aranji Oladehinde v Immigration Appeal Tribunal [1991] Imm AR 111, which seems to make the point absolutely clear. I refer in particular to the speech of Lord Griffiths at page 118, where, setting the scene for the facts of that particular case, Lord Griffiths says this:

"On 1 August 1988 after the passing of the Act of 1988 the Home Secretary took the decision which gives rise to these appeals. It was decided that the initial decision to deport an immigrant liable to deportation under section 3(5)(a) of the Act of 1971, that is because he has not observed the condition attached to leave to enter or is an overstayer, should in future be taken by an inspector in the immigration service and not by a civil servant in the deportation section."

That is the factual background of that case. At page 120 Lord Griffiths says:

"I turn now to the principal issue. The appellants submit that immigration officers are the holders of a statutory office and as such they are independent of the executive arm of government, and cannot have devolved upon them any of the executive powers. Therefore it is said the Carltona principle cannot extend to cover the exercise of the Secretary of State's powers by an immigration inspector."

Then comes the part which is particularly relevant to the present application:

"Alternatively it is submitted that if immigration officers are civil servants in the Home Office the structure of the Act, which differentiates between the power of the immigration officers which are primarily concerned with entry control and subsequent policing of illegal immigrants, and the powers of the Secretary of State in relation to deportation carries with it a clear statutory implication that the powers of the Secretary of State are not to be exercised by immigration officers.

I cannot accept either of these submissions."

Lord Griffiths goes on to give some detailed reasons, and I can end with a quotation from a paragraph on page 121:

"The immigration service is comprised of Home Office civil servants for whom the Home Secretary is responsible and I can for myself see no reason why he should not authorise members of that service to take decisions under the Carltona principle providing they do not conflict with or embarrass them in the discharge of their specific statutory duties under the Act and that the decisions are suitable to their grading and experience."

It seems to me that that really sums the matter up.

There was no evidence here of any formal delegation by the Secretary of State to the particular immigration officers concerned, but as Professor Sir William Wade says in his book at page 367, in these circumstances there is no need for formal delegation; that indeed is the Carltona principle.

I would like to pay tribute to the forceful and helpful way that Mr Scannell argued his case on behalf of his client. He summarised his grounds as follows: the consideration of the adjudicator's recommendation by the three senior immigration officials at Lunar House was, in the context of any asylum case, unlawful in that (a) it was in breach of the immigration rules -- and I have already indicated that in my view it was not; (b) it was in breach of a legitimate expectation that such recommendation would be considered by the Secretary of State as opposed to immigration officers -- again in my view that is not the case; (c) there is no evidence of any decision by the Secretary of

State to delegate his decision making power to the immigration officers -- and I have already said no such evidence is necessary; and (d) any such delegation would have been caught by Lord Griffiths' caveat in the light of paragraph 1 of the immigration rules. That caveat was "it should not conflict with or embarrass them in the discharge of their specific statutory duties". Nothing in this case would conflict with or could embarrass the three officers concerned in the discharge of their statutory duties.

In my judgment there is not even here an arguable case for granting leave to apply for judicial review and I would therefore dismiss this application.

Judgment Two:

HIRST LJ: I agree.

Judgment Three:

HOFFMANN LJ: I also agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Winstanley-Burgess, London EC 1; Treasury Solicitor