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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> R v Secretary of State for the Home Department, ex p. Khan [1984] EWCA Civ 8 (04 April 1984) URL: https://www.bailii.org/ew/cases/EWCA/Civ/1984/8.html Cite as: [1984] EWCA Civ 8, [1984] 1 WLR 1337, [1984] WLR 1337 |
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COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
(Mr. Justice Stephen Brown)
B e f o r e :
LORD JUSTICE WATKINS
and
LORD JUSTICE PARKER
Between:
____________________
THE QUEEN |
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and |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
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Ex Parte ASIF MAHMOOD KHAN |
____________________
MR. D. LATHAM (instructed by the Treasury Solicitor) appeared on behalf of the Respondent/Respondent.
____________________
Crown Copyright ©
"Dear .....
Thank you for your letter of .........; the following information may be of help to you."
It is clearly a letter used by the Home Office to answer enquiries
from those such as the appellant and supplied to Advice Bureaux so that they may use it when enquiries are made of them. The letter then continues:
"There is no provision in the Immigration Rules for a child to be brought to the United Kingdom for adoption. The Home Secretary may, however, exercise his discretion and exceptionally allow a child to be brought here for adoption where he is satisfied that the intention to adopt under United Kingdom law is genuine and not merely a device for gaining entry; that the child's welfare in this country is assured; and that the court here is likely to grant an adoption order. It is also necessary for one of the intending adopters to be domiciled here."
(1) That there was a genuine intention to adopt.
(2) That the child's welfare in this country was assured.
(3) That the Court here would be likely to grant an adoption order.
(4) That one of the intending adopters was domiciled here.
"It is particularly important that the adoption law in this country, which is designed to safeguard the interests of the child and the natural parents and to ensure that the intending adopters are suitable persons to adopt a particular child, is fully satisfied. Also, the law specifically requires that in reaching any decision relating to the adoption of a child, a court must give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood. Because the welfare of a child is at stake, the Department concerned must be satisfied that there are no apparent reasons why a court would refuse to grant an adoption order. They have therefore devised the following procedure which is designed to act as a safeguard for everyone concerned."
"The procedure is for the representatives of the intending adopters in the country where the child is living to apply to the nearest British Government representative for an entry clearance for the child to come here. He will require the documentation and information outlined in Appendix 1 attached to this letter. He will also need to ascertain the child's wishes and feelings having regard to his age and understanding and to see evidence that the child's parents or guardians fully understand what is involved and unconditionally agree to the child coming to the United Kingdom for adoption. He will also be required to confirm that the relevant authorities in the child's present country of residence do not object to the proposal. Further he will be required to prepare, attest and certify documents confirming the information he has given and in some cases will need to translate original documents. The intending adopters will be charged consular fees for this service, which may be substantial."
a) that the Appellant had stated that the child lived with his mother two brothers and paternal grandparents in the grandparents' brick built modern house with electricity and water on tap and the family enjoyed a good standard of living, the natural father remitting funds from Iran.
b) that although legal adoption was not permitted in Pakistan it was not unknown for parents to hand over children to childless close relatives and that this was certainly such a case.
c) that the application was made for the benefit of the childless sponsors rather than the child, which enjoyed a comfortable standard of living in Pakistan.
"When the application is referred to this Department for decision we will require the intending adopters to give an undertaking that as soon as the child arrives here they will inform the Social Services Department of their local authority of their intention to apply to the court for an adoption order. They must also give an undertaking that they will take financial responsibility for the child, including the cost of repatriating the child if for any reason this becomes necessary, for example, the child is not adopted by them. A suitable form specifying the undertakings is attached at Appendix 2. We will then ask the Department of Health and Social Security (or in the case of intending adopters living in Northern Ireland, Scotland or Wales, the relevant Department there) if there are any apparent reasons why a court would refuse to grant an adoption order. The relevant Department will then arrange for appropriate enquiries to be made through the intending adopters' local authority social services department, establish that a suitable home is being offered and ensure that the placement would be in the interests of the child's welfare. It may, in some cases, instigate enquiries into the child's background through a social work agency operating in his country of residence.
It is emphasised that these enquiries are necessary to safeguard both the child's and public interest and are likely to be protracted. It is therefore important that the application for the entry clearance is made as soon as details of the child are known. It is also important that intending adopters do not make arrangements to travel to collect the child or for his journey here or enter any commitments with regard to the child, until they have been informed by this Department that the entry clearance has been authorised."
(1) The Home Office would enquire of the DHSS if there were any apparent reasons why a court would refuse to grant an adoption order.
(2) That department would then arrange for appropriate enquiries to be made through the appellant's local authority's social services department with a view to establishing that a suitable home was being offered and ensuring that the placement would be in the interests of the child's welfare.
(3) In some cases enquiries in the country of origin might be made.
"You have applied to enter the United Kingdom for adoption by Asif Mahmood Khan but you have no claim to admission for this purpose under the Immigration Rules. Furthermore the Secretary of State is not satisfied that serious and compelling family or other considerations make exclusion undesirable."
The relevant part of paragraph 46 reads as follows:
"..... children under 18 ..... are to be admitted for settlement(f) if one parent or a relative other than a parent is settled ..... in the United Kingdom and there are serious and compelling family or other considerations which make exclusion undesirable ..... and suitable arrangements have been made for the child's care.
".... they ought not to depart from it except after the most serious consideration and hearing what the other party has to say and then only if they are satisfied that the overriding public interest requires it. The public interest may be better served by honouring their undertaking than by breaking it ..... they broke their undertaking without any sufficient cause or excuse."
Reference may also be made to Lord Justice Roskill at page 311, where he said:
"It seems to me, therefore, that now to allow the council to resile from that undertaking without notice to and representations from the applicants is to condone unfairness where there is a duty to act fairly."
And to Lord Justice Wilmer at page 313:
"As has been pointed out by Lord Denning M.R. what is now sought to be done can only be regarded as being in flat defiance of the undertaking publicly given by the chairman of the sub-committee at the meeting of the city council, and repeated privately to the applicants through the town clerk's letter. It seems to me that in these very special circumstances, having regard to the history of how this matter had been dealt with in the past, and having regard especially to the giving of the undertaking, the applicants are justified in regarding themselves as "aggrieved" by what I can only describe as unfair treatment on the part of the Liverpool Corporation. Accordingly, it seems to me that this is indeed a proper case in which this court can and should interfere, in order to ensure that a decision is arrived at only after fair discussion and after hearing all proper representations of the parties interested."
The second of the authorities relied on by the appellant is O'Reilly v. Mackman [1983] 2 AC 237. The case is relied on solely for a statement of principle in the speech of Lord Diplock with which all members of the Judicial Committee agreed. It is therefore necessary to state the facts only to the limited extent necessary to render that statement understandable. Four prisoners had been awarded forfeiture of remission by the Board of Visitors. They sought to challenge the decision of the Board on the ground that there had been a failure to observe the rules of natural justice the relief sought being declaratory only.
At page 275 Lord Diplock said:
"It is not, and it could not be, contended that the decision of the board awarding him forfeiture of remission had infringed or threatened to infringe any right of the appellant derived from private law, whether a common law right or one created by a statute. Under the Prison Rules remission of sentence is not a matter of right but of indulgence. So far as private law is concerned all that each appellant had was a legitimate expectation, based upon his knowledge of what is the general practice, that he would be granted the maximum remission, permitted by rule 5(2) of the Prison Rules, of one third of his sentence if by that time no disciplinary award of forfeiture of remission had been made against him. So the second thing to be noted is that none of the appellants had any remedy in private law.
In public law, as distinguished from private law, however, such legitimate expectation gave to each appellant a sufficient interest to challenge the legality of the adverse disciplinary award made against him by the board on the ground that in one way or another the board in reaching its decision had acted out-with the powers conferred upon it by the legislation under which it was acting; and such grounds would include the board's failure to observe the rules of natural justice: which means no more than to act fairly towards him in carrying out their decision-making process, and I prefer so to put it."
The appellant, however, contends that on the basis of the third authority on which he relies, coupled with his first which I have already considered, he is so entitled. That authority is a Privy Council case, Attorney General of Hong Kong v. Ng Yuen Shin [1983] 2 AC 629 which at the time of the hearing before the judge had been reported only in the Times Newspaper. The advice of their Lordships was delivered by Lord Fraser of Tullybelton. The other members of the Judicial Committee were Lord Scarman, Lord Bridge of Harwich, Lord Brandon of Oalbrook and Sir John Megaw. For some years prior to 23rd October 1980 the Government of Hong Kong had adopted a policy under which illegal immigrants from China were not repatriated if they managed to reach the urban areas without being arrested. This was known as the "reached "base policy. On 23rd October 1980 the Government announced that this policy would be discontinued forwith and at the same time issued a new Ordinance which, inter alia gave the Director of Immigration power to make removal orders in respect of illegal immigrants. There was no statutory provision for a hearing or enquiry before a removal order was made. Subsequent to the change of policy there were a series of television announcements stating that all illegal immigrants from China would be liable to be repatriated. Mr. Ng like many others in the Colony, although they had entered illegally from Macau, were of Chinese origin. They were accordingly worried and on 28th October 1980 a group, not including Mr. Ng, went to Government House and submitted a petition.
"Q. Will we be given identity cards? A. Those illegal immigrants from Macau will be treated in accordance with procedures for illegal immigrants from anywhere other than China. They will be interviewed in due course. No guarantee can be given that you may not subsequently be removed. Each case will be treated "on its merits."
It is necessary to cite four passages from Lord Fraser's judgment:
(1) "Legitimate expectations" in this context are capable of including expectations which go beyond enforceable legal rights provided they have some reasonable basis".(p.636 E - F)
(2) "The expectations may be based upon some statement or undertaking by or on behalf of the public authority which has the duty of making the decision, if the authority has, through its officers, acted
in a way that would make it unfair or inconsistent with good administration for him to be denied such an inquiry." (p.637 C - D)
(3) "Their Lordships see no reason why the principle should not be applicable when the person who will be affected by the decision is an alien, just as much as when he is a British subject. The justification for it is primarily that, when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. The principle is also justified by the further consideration that, when the promise was made, the authority must have considered that it would be assisted in discharging its duty fairly by any representations from interested parties and as a general rule that is correct.
In the opinion of their Lordships the principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, is applicable to the undertaking given by the Government of Hong Kong to the applicant, along with other illegal immigrants from Macau, in the announcement outside the Government House on October 28, that each case would be considered on its merits. The only ground on which it was argued before the Board that the undertaking had not been implemented was that the applicant had not been given an opportunity to put his case for an exercise of discretion, which the director undoubtedly possesses, in his favour before a decision was reached." (p.638 E - H)
(4) "Their Lordships consider that this is a very narrow case on its facts, but they are not disposed to differ from the view expressed by both the courts below, to the effect that the government's promise to the applicant has not been implemented. Accordingly the appeal ought to be dismissed. But in the circumstances their Lordships are of opinion that the order made by the Court of Appeal should be varied. The appropriate remedy is not the conditional order of prohibition made by the Court of Appeal, but an order of certiorari to quash the removal order made by the director on October 31 against the applicant. That order of certiorari is of course entirely without prejudice to the making of a fresh removal order by the Director of Immigration after a fair inquiry has been held at which the applicant has been given an opportunity to make such representations as he may see fit as to why he should not be removed." (p.639 E - F)
The emphasis is in each case mine.
"There is no provision in the Immigration Rules for a child to be brought to the United Kingdom for adoption. The Home Secretary may, however, exercise his discretion and exceptionally allow a child to be brought here for adoption where he is satisfied that the intention to adopt under United Kingdom law is genuine and not merely a device for gaining entry; that the child's welfare in this country is assured; and that the court here is likely to grant an adoption order. It is also necessary for one of the intending adopters to be domiciled here."
These terms include the following:
"children under 18 ..... are to be admitted for
settlement
(f) if one parent or a relative other than a parent is settled ..... in the United Kingdom and there are serious and compelling family or other considerations which make exclusion undesirable ..... and suitable arrangements have been made for the child's care.
In this paragraph "parent" includes ..... an adoptive parent, but only where there has been a genuine transfer of parental responsibility on the ground of the original parents' inability to care for the child and the adoption is not one of convenience arranged to facilitate the child's admission."
His general conclusions in response to them were these:
"The submission which Mr. Knott makes is that the letter to which I have referred which gives advice and guidance to prospective adoptive parents ought to be considered as setting out something in the nature of a rule. He submits that in this case all the procedures which that letter envisages have not been carried out. I say at once that I cannot accept that the entry clearance officer did not give proper consideration to the matter on the basis of his affidavit and on the basis of the information which clearly was considered by Mrs. Hewett. It seems to me that the most careful consideration was given to this case, not only by the entry clearance officer, but ultimately by Mrs. Hewett who in fact made the decision.
I am unable to accept the argument that this letter offering guidance could or should be considered as giving any right to or laying down any rule for prospective adopters. This is, as it indicates, a letter designed to help as to how to go about seeking the exercise of the Secretary of State's "exceptional discretion". The letter emphasises in the first paragraph: 'The Home Secretary may, however," (although there is no provision in the Immigration Rules) "exercise his discretion and exceptionally allow a child to be brought here for adoption". In this case, it seems to me that it is impossible to point to any failure on the part of the Secretary of State to consider any relevant matter.
It is not for this court to seek to tell the Secretary of State how to exercise his discretion; this court has the function of judicially reviewing the exercise of discretion, but in this particular sphere the court cannot express its own view as to what ought to be done having regard to the facts of any particular case. I am quite unable to find any ground upon which this application can succeed. It seems to me to indicate what may be a general misapprehension and a growing misunderstanding of the function and powers of the court in relation to these matters. Where there are no rules, it can only be in extreme cases - of bad faith for example - that the court could possibly intervene in the exercise of the Secretary of State's discretion. I am quite unable to find that he has failed to apply correct principles or that he has applied incorrect principles. Indeed it seems to me that this matter has received fair consideration upon its merits."
Although having regard to the arguments addressed to this court by Mr. Knott and Mr. Latham I would express my reasons somewhat differently, I agree with the learned judge. There has, in my judgment, been a fundamental misconception by Mr. Knott of the status of the whole contents of the letter and a misunderstanding of the first paragraph of it which has caused him to endeavour to create an edifice of an argument upon a basis which does not in reality exist. Hence his striving to rely erroneously, in my view, for support upon the principles said to emerge from R. v. Liverpool Corporation Ex parte Liverpool Taxi Fleet Operators Association [1972] 2 QB 299; O'Reilly v. Mackman [1983 2 AC 237 and Attorney General of Hong Kong v. N.G. Yeun Shin [1983] 2 AC 629.
LORD JUSTICE DUNN: The Home Office circular letter states, with accuracy, that there is no provision in the Immigration Rules for a child to be brought into the U.K. for adoption. The letter goes on to assert that the Home Secretary may in the exercise of his discretion, allow children to be brought here for that purpose. Thus, it appears, that the Home Secretary was assuming an administrative discretion the exercise of which is subject to judicial review on the principles which were stated by Lord Greene M.R. in the well-known case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223 at p.228. Such review is concerned not with the merits of a decision but with the manner in which the decision was made (R. v. Entry Clearance Officer ex parte Amin [1983] AC 818 per Lord Fraser of Tullybelton at p.829). If the manner of making the decision is unreasonable, the courts can intervene to quash the decision. As Lord Greene said in Wednesbury's case supra at p.230:
"It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He-must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'".
I would allow the appeal and quash the refusal of entry clearance.
Appeal allowed with costs. Legal aid taxation of appellant's costs. Order below set aside.