Khalil (AP), Re Application For Judicial Review [2001] ScotCS 255 (8 November 2001)

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The right of appeal against such a decision was to an adjudicator under section 15. In its original form there were no restrictions on the right to appeal from the type of decision under consideration here. In dealing with such an appeal, the 1971 Act provided that :

Section 20 permitted appeals from an adjudicator to the Immigration Appeal Tribunal and the Tribunal was given power to affirm the determination or make any other determination which could have been made by the adjudicator.

[3] On 6^th March 1998 the petitioner was interviewed by one of the respondent's immigration officers. This was at Aitkenhead Road Police Station, Glasgow following upon the petitioner's detention, along with six other males, at a flat in Pollokshields. At the interview [No. 6/2 of Process Annex A Form App104A], the petitioner said that he had entered the country in April 1997 on a permit for a visitor lasting only six months. He said he was from Pakistan. Immediately after that interview, the respondent served upon the petitioner a notice of intention to deport. In the notice intimating the decision to make a deportation order [Pro. 6/2, Annex A Form App 104], the reason was given as :

The petitioner appealed against the deportation on the grounds that the "decision is unfair and unjust" [Pro. 6/2, Annex B Form App 11]. By letter dated 14^th September 1998 [Pro. 6/2, Annex C], served on the petitioner on 30^th November 1998, the respondent gave notice that he proposed to give directions for his removal on deportation to Pakistan. On 14^th January 1999, the respondent sent an explanatory statement [Pro. 6/2] to the petitioner which said that the decision had been made for the reasons in the original notice because the respondent was satisfied that the petitioner was remaining in the United Kingdom without leave. This statement also drew attention to the respondent's view that, because of the statutory restriction, the petitioner's appeal fell to be determined on whether on the facts there was in law power to make a deportation order for the reasons stated in the notice.

[4] On 28^th April 1999 the appeal was heard by an Adjudicator in Glasgow. There was no evidence led but there was a written submission for the petitioner and an oral submission from the respondent. The petitioner's submission, in so far as it is narrated in the Adjudicator's determination [Pro. 6/1], was a thorough and lengthy document largely concerned with the effect of section 5 of the 1988 Act. It maintained that the respondent had no power in law to make a deportation order which was vitiated by procedural error, here stated to be the giving of inadequate reasons. Two Tribunal decisions (Dharam Singh v Secretary of State for the Home Department [1998] Imm AR 428; and Indra Bahadur Raj (G0058), which had followed the English Court of Appeal and House of Lords Decisions in respectively R v Secretary of State for the Home Department ex parte Malhi [1991] 1 QB 194 and R v Secretary of State for the Home Department ex parte Oladehinde [1991] 1 AC 254) were apparently referred to but the argument in the submission had been rejected by both Tribunals. A section of the determination relative to section 5 in the latter case of Indra Bahadur Raj (supra) was quoted in the Adjudicator's decision as follows :

With these observations in mind, the Adjudicator held that he could not have regard to any alleged procedural irregularities but had to approach the matter in the manner set out in Indra Bahadur Raj (supra).

[5] The submission also raised a question as to whether it had been established that the petitioner had overstayed his leave. However, as the Adjudicator found, the petitioner had admitted this to the immigration officer. The submission questioned whether there was adequate understanding between the petitioner and the interpreter who was present at interview, the fitness of the appellant to be interviewed and his attitude to the accuracy of the record of the interview. However, none of these questions was supported by any evidence which contradicted the apparent position outlined in the documents as founding the basis for the immigration officer's decision. In these circumstances, the Adjudicator held:

He was therefore satisfied on that basis that the petitioner was liable to deportation.

[6] The petitioner sought leave to appeal to the Immigration Appeal Tribunal on grounds, similar, in part, to those advanced before the Adjudicator. This was refused [Pro. 6/3] on 5^th July 1999 because the Adjudicator had, inter alia, "dealt with the procedural and jurisdictional points in detail, based on the relevant law which falls to be applied."

[7] The present petition was lodged on or about 21^st July 1999, well over two years ago. It limped along until eventually sisted pending the outcome of an appeal to the Inner House against the decision in Dharam Singh v Secretary of State for the Home Department (supra). That appeal did not proceed, counsel advising the Court on the day of the Summar Roll hearing that he did not consider it arguable. Notwithstanding the reason for the sist and the outcome, a decision to proceed was made in this case and it eventually came before me for a hearing on 8^th August 2001.

[8] The argument for the petitioner echoed part of that outlined in the petition and was that originally argued before the Adjudicator. This was first that the evidence before the Adjudicator was insufficient for him to conclude that the relevant facts necessary for the making of a deportation order had been established. Secondly, the Adjudicator erred in law in determining that he could not consider an appeal based on a procedural error. Thirdly, had he considered such an appeal, he would have seen that such an error existed, namely inadequacy of reasons. In relation to the refusal to grant leave, it was said that the Immigration Appeal Tribunal had also erred because it ought to have noticed the Adjudicator's errors or at least taken the view that there was an arguable case. It was not contended, as it had been in the body of the petition, that the Tribunal had not given adequate reasons for its decision.

[9] The petitioner focused first on the second point, namely whether the Adjudicator had erred in law in determining that he could not consider an appeal based on a procedural error because of the restriction purportedly imposed by the 1988 Act. In an elaborate and detailed analysis, the petitioner maintained that the English Court of Appeal case of R v Secretary of State for the Home Department ex parte Malhi (supra) should not be followed because the reasoning given by the judges in it was flawed. That reasoning was threefold. First, both Dillon (205) and Stuart-Smith (211) LLJ had formed the view that Parliament would not have intended to give an adjudicator powers to review the decisions of the respondent which were co-extensive with those of a court in a judicial review since this would simply cause duplication. However, it was argued, Parliament frequently allowed administrative and other tribunals powers equivalent to judicial review even although the courts also retained those powers in the same situation (R v Immigration Appeal Tribunal ex parte Baktaur Singh [1986] Imm AR 352, Lord Bridge at 360; Secretary of State for the Home Department v Abdi [1996] Imm AR 148, Peter Gibson LJ at 157; Chief Adjudication Officer v Foster [1993] AC 754 Lord Bridge at 766 under reference to Bugg v Director of Public Prosecutions [1993] QB 473; Boddington v British Transport Police [1999] 2 AC 143, Lord Irvine LC at 161; R v Wicks [1998] AC 92, Lord Nicholls at 109; Lord Hoffman at 119-122; see an article by Satvinder Juss: "Review and appeal in administrative law" 1996 Legal Studies 364). Therefore, it was maintained, the reasoning of Dillon and Stuart-Smith LLJ was erroneous. Secondly, the third judge, Mustill LJ had based his reasoning upon a restrictive view of the word "power" (207 F-H) which no longer existed in administrative law (see e.g. De Smith, Woolf & Jowell's Principles of Judicial Review, paras 4-039 et seq. on "jurisdictional and non-jurisdictional error"). It was clear now that a procedural error in arriving at a decision rendered it as unlawful as one regarded as ultra vires in the traditional sense. Thirdly, in relation to all three judges, they founded upon the actual wording of the statute in reaching their conclusions on construction (Dillon LJ at 205; Mustill LJ at 207; Stuart-Smith LJ at 211). However, the words "power" and "law" used in section 5 of the 1988 Act were not unambiguous. Had the Court of Appeal looked at Hansard to aid the construction of these words, as would now be permissible, it would have become clear that all that had been intended by the section was the termination of an adjudicator's power to review the discretion of immigration officers (see the annotations by Professor DC Jackson to 1988 Current Law Statutes p 14-7). It had not been intended to remove an adjudicator's ability to look at procedural errors. It was ultimately argued that I was, in all the circumstances, entitled to reach the view that the decision of the House of Lords in R v Secretary of State for the Home Department ex parte Oladehinde (supra) was wrong especially given the changes in the law since that decision.

[10] The next leg of the petitioner's argument was that there had been a procedural failure on the part of the respondent in that his officer had failed to give adequate reasons for his decision. Although reasons had been given, which were not dissimilar in extent to those approved in Swati v Secretary of State for the Home Department [1986] Imm AR 88 (Donaldson MR at 93-94) and Mensah v Secretary of State for the Home Department 1992 SLT 177 (Lord Coulsfield at 181), in these cases full statements of fact had been anticipated thereafter. Here the respondent's explanatory note had not expanded on the original reasons at all. The petitioner had been deprived of knowing whether the respondent had considered all relevant factors before reaching his decision (R v Secretary of State for the Home Department ex parte Doody [1993] 3 WLR 154, Mustill LJ at 173).

[11] Finally, the petitioner maintained that there had been a further error in that the respondent did not have sufficient evidence upon which to base his conclusion that the appellant was an "over-stayer". There was only a typed report paraphrasing what was alleged to have been said during his interview. This, as distinct from a verbatim contemporaneous record, could not be relied upon. The petitioner did not maintain the argument that it had not been demonstrated that the petitioner had understood what had gone on at the interview standing the reference to the presence of an interpreter (Punjabi) albeit that the petitioner's appeal notice appeared to request different interpretation (Urdu).

[12] The respondent focused first on the facts relied upon in determining to deport the petitioner. These were: (i) the petitioner was not a British citizen; (ii) he had entered the country on a permission of limited leave to remain; (iii) the limits of that permission had expired; and (iv ) he was still in this country. These facts all emerged from what the petitioner had himself said at interview and it was difficult to envisage what further facts required to be found in order to provide a basis for deportation. None of these facts had been contradicted or retracted before the Adjudicator. Indeed no evidence at all was presented, only a submission challenging the reliability of the interview from which the facts had been gleaned. The Adjudicator had been entitled to make the findings he did make.

[13] The reasons given had been in terms of the Immigration Appeals (Notices) Regulations 1984 (SI 1984/2040) and had been adequate in terms of the guidance given by Donaldson MR in Swati v Secretary of State for the Home Department (supra) and Lord Coulsfield in Mensah v Secretary of State for the Home Department (supra). Both the petitioner and the informed reader would have been left in no real or substantial doubt about what the reasons for the decision to deport were and what material considerations were taken into account when reaching it (Wordie Property Co. v Secretary of State for Scotland 1984 SLT 345, Lord President (Emslie) at 348). The petitioner had not sought to contradict the factual content of the reasons (see Lord Coulsfield in Mensah v Secretary of State for the Home Department (supra) at 182).

[14] On the issue of the construction of section 5 of the 1988 Act, it was submitted that the Adjudicator and this Court were bound by the decision of the House of Lords in R v Secretary of State for the Home Department ex parte Oladehinde (supra). What was being construed was primary legislation in a statute of United Kingdom application. The wording of the section was not ambiguous. It had been clearly explained by Lord Griffiths in that case (at pp 304-305) that the effect of it is that an adjudicator will not be concerned with the mode of exercise of a power to deport by an immigration officer but solely with whether on the facts such a power existed. The judges of the Court of Appeal in R v Secretary of State for the Home Department ex parte Malhi (supra) had also founded upon the clear or natural meaning of the words (Dillon LJ at 205; Mustill LJ at 208 and Stuart-Smith LJ at 211) and should be followed. The arguments in this judicial review had been rejected by the Immigration Appeal Tribunal in Dharam Singh v Secretary of State for the Home Department (supra). There the Tribunal had been right, as the Adjudicator had been here, to reject considerations of procedural error in determining an appeal. Such considerations were open to analysis only upon a judicial review. The Adjudicator had addressed himself to the proper issues, made an accurate statement of the statutory provisions and current applicable case law and reached the correct decision for the right reasons. He did not err in law nor did the Immigration Appeal Tribunal in rejecting this case as one suitable for appeal.

[15] The English Court of Appeal in R v Secretary of State for the Home Department ex parte Malhi (supra) gave a clear judgment on the effect of section 5 of the 1988 Act on the appeal process from the respondent's immigration officer to an Adjudicator. This is well expressed by Mustill LJ where he said (208 G-H):

As I read the opinions of Dillon (205 D-G) and Stuart-Smith (211 D-E) LLJ, they too regarded the wording of the statute as the primary reason for their decisions. It is true that they appear to find confirmation for their views by wondering why Parliament would have left an adjudicator with a similar jurisdiction to that of the High Court in England but this is because, unsurprisingly, they would have regarded it as strange for a provision intended to limit appeals in effect to permit the appellate body the wide ranging powers of review (including reasonableness) carried out generally by the courts. It is also true that Mustill LJ prefaced his conclusion by an analysis of what was meant by the word "power" and seemed to base part of his thinking on the strength of that analysis. I doubt whether that analysis would have been legitimate if carried out using the principles traditionally applied by the Scottish courts in reviewing the actions of administrative or quasi judicial tribunals or bodies. But, in any event, I do not consider that Mustill LJ's digression materially affects the fundamental basis for his conclusion on the wording of the section.

[16] I agree with the interpretation put upon the statutory provisions by the Court of Appeal and especially the expression thereof by Mustill LJ (supra). I do not consider that the fact that other administrative bodies and tribunals have, under other statutory schemes, in other contexts or even under sections of the 1971 Act unaffected by the 1988 restriction, power to make decisions which involve issues of whether certain administrative acts are valid, adds or detracts from the Court of Appeal decision on the particular wording of primary legislation under consideration here. Equally I do not think that the law relating to the ability of an accused in a criminal trial to challenge subordinate legislation has any bearing on the current case. Indeed, I am not persuaded that a detailed exploration of the roots and development of the English courts' approach to judicial review is of material assistance in the context of a Scottish court seeking to interpret the terms of an Act of Parliament.

[17] In R v Secretary of State for the Home Department ex parte Oladehinde (supra), R v Secretary of State for the Home Department ex parte Malhi (supra) was expressly approved and Lord Griffiths made it clear (304 D-F) that the ratio of Malhi (supra) was that:

I also agree. In any event, that approval is contained in a decision of the House of Lords on a statute of United Kingdom application. Even if I had an inclination to disagree, I do not think that it would be open to me to implement any such inclination. In particular, I am unable to detect any material differences in the approaches of Scots and English Law to the construction of statutes which could justify a different result in this jurisdiction. I am also unable to find that there has been any relevant and substantial change in the law affecting this case between the date of R v Secretary of State for the Home Department ex parte Oladehinde (supra) and the decisions made here by the immigration officer, the Adjudicator or the Immigration Appeal Tribunal. I notice that in Dharam Singh v Secretary of State for the Home Department (supra) the Immigration Appeal Tribunal, one of whose members was the same as refused leave to appeal here, reached the same conclusion. I agree with the Tribunal where it said (p 436) that:

It follows that I do not consider that there is any merit in the challenge to the Adjudicator's decision based upon his interpretation of the statute.

[18] In Wordie Property Co. v Secretary of State for Scotland (supra) the Lord President (Emslie) said (at p 348):

In this case, the respondent's immigration officer was considering deportation under section 3(5)(a) of the 1971 Act. The power to deport under that section existed only if certain facts were found, namely that: (i) the potential subject was not a British citizen; (ii) he had entered the country with only a limited leave to enter or remain; and (iii) he had remained beyond the time limited by the leave. If such a set of facts was found to have existed then, in the absence of any other relevant and substantial considerations, that provided an adequate reason for any decision to deport. The petitioner at interview told the immigration officer that: (a) he was a national of Pakistan; (b) he had entered the country on a permission containing a six month limit on the leave to remain; (c) he had entered the country ten months previously. The immigration officer, not surprisingly, concluded that the matters set out at (i) to (iii) above existed and decided upon deportation because the petitioner was, as was stated as the reason: "admitted on or about April 1997 and [had] overstayed a limited leave to enter or remain". This simple, straightforward statement could have left neither the petitioner himself nor any other informed person in any doubt about why the deportation was to occur and the considerations taken into account. It has left the Court in no such doubt. I am therefore of the view that the submission concerning the inadequacy of reasons fails.

[19] The petitioner's remaining point concerned whether the immigration officer and Adjudicator had a sufficient basis to make the findings which they did. However, none of the critical matters were disputed as facts at any stage of the proceedings. All that was mounted was an unconvincing attack upon the reliability of the material produced from the interview. As Lord Coulsfield said in Mensah v Secretary of State for the Home Department (at 181-2):

It would equally be for a petitioner challenging a finding in fact to set out what he maintains the true factual position is. No attempt to do that was done here, no doubt advisedly so. In such circumstances, there is no substantial ground for maintaining that the petitioner's answers at interview could not be relied upon to base the facts which in turn provided the reason for the decision to deport him.

[20] There is accordingly no valid basis for challenging successfully the decisions of the immigration officers or the Adjudicator. In these circumstances and given the Immigration Appeal Tribunal's previous decisions on the same points of criticism, there is also no basis for challenging successfully its decision on leave to appeal. I will therefore repel the first to fourth pleas-in-law for the petitioner, sustain the second plea in law for the respondent and refuse the prayer of the petition.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Khalil (AP), Re Application For Judicial Review [2001] ScotCS 255 (8 November 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/255.html Cite as: [2001] ScotCS 255

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