M v HOME OFFICE

Administrative confusion and errors in judgment, were the foundations of a refused application for asylum that at first glance appeared false, until professional evidence revealed otherwise.

It was only after a collection of ministerial and administrative mishaps, that the refugee brought civil action against the Home Secretary and the Crown.

In autumn of 1990, an African citizen arrived in the United Kingdom, claiming asylum on grounds that he had been a victim of torture while working as a school teacher in Zaire.

His story, while sounding hard to imagine, was later corroborated by the attending doctor at the Medical Foundation for the Care of Victims of Torture, whose report stated:

“I found nothing in his history or its presentation to suggest that it was in any way unreliable. His description of prison conditions has been confirmed innumerable times by other people who have experienced them. The scars he bears are entirely compatible with the causes he ascribes to them. He is suffering a degree of deafness and spinal trouble quite likely to have arisen from his mistreatment. Psychologically he describes symptoms very likely to arise from the experiences he described. He shows some evidence of depression and his continued detention can only aggravate these symptoms and he could easily become a serious suicide risk.”

Prior to this disclosure, the Home Office had rejected his previous two submissions and plans were set in motion to return him back to Zaire, whereupon he had applied for judicial review; after which time, the deportation arrangements were cancelled in lieu of his appearance before the court.

Two months later, the review application was refused; at which point, the appellant applied to the Court of Appeal. 

Unfortunately, his solicitors failed to lodge the application, therefore it went unregistered, and while the doctor’s report provided sufficient weight to support his claim, it was not received by the Home Office until a day before his planned removal from the country.

By luck rather than judgment, the Court of Appeal had already made time to hear the case on the day of deportation, but dismissed the application while unaware of the report, or that the applicant was changing solicitors, on grounds that his case had been misrepresented, and that a new application for judicial review was being lodged.

Having been heard before Garland J literally thirty minutes before the assigned plane was due to depart, it was decided that there needed to be further provisions in place to evaluate the matter fairly, so proceedings were adjourned in favour of another session the following day.

This led to the cancelling of the flight by the appellant’s solicitor who had telephoned the Home Office accordingly. During this period, Garland J interpreted that the Home Office had expressed permission for the appellant to remain in the country and explained:

 “[T]he application for leave to move for judicial review be adjourned on the undertaking by counsel for the Home Office . . . that the applicant would not be removed from the United Kingdom to Zaire.”

Garland J

For one reason or another, the information was never relayed to those accompanying the appellant and he was deported to Paris en route to his home country.

Around the time the appellant was leaving there had been a meeting between the Parliamentary Under Secretary of State to the Home Office, Home Office officials and the appellant’s representing solicitor, yet no intervening action had been taken with regard to the appellant’s departure.

This culminated in the appellant’s solicitor meeting with Garland J in the midnight hours, whereupon the judge issued a written order requesting the appellant’s immediate return and interim protection.

Notice of this order then reached numerous state departments and their representatives, including the Home Secretary Kenneth Baker who while acting upon legal advice, declared the order beyond the jurisdiction of the judge (ultra vires), and that an appeal would be lodged against the order on grounds that there was insufficient cause for the appellant to receive asylum and return to the United Kingdom.

It was there that the judge held the Home Secretary in contempt of court and declared his actions (or inactions) a breach of statutory duty.

Legal precedence of injunctions or orders served against either the Crown or their representatives dates back to Feather v The Queen, where Cockburn CJ remarked:

“As the Sovereign cannot authorise wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown.”

FEATHER v THE QUEEN

This continued until the Crown Proceedings Act 1947, whereupon section 1 enabled action against the Crown by petition of right, while s.2 allowed tortious claims upon those identifiable under the Crown’s protection.

Section 17 of Part II of the 1947 Act further provided a list of those Ministers and their departments to allow civil claims against the department or the position held by those subject to the action.

Section 21(a) of the 1947 Act also explained that where an injunction or specific performance was sought, the courts would instead allow declaratory rights for those claiming, as to do otherwise would contradict the principle that the Crown can do no wrong.

Under the powers of section 31 of the Supreme Court Act 1981 RSC Ord.53 allowed for judicial review, whereupon section 37(1) of the 1981 Act provided that:

“The High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so.”

Section 37(1) Supreme Court Act 1981

This translated that irrespective of the violations argued by the Home Secretary, the intentions of Ord.53 were such that allowed the courts to grant interim relief where appropriate, as further expressed in The Supreme Court Practice 1993, which read:

“Where the case is so urgent as to justify it, [the judge] could grant an interlocutory injunction or other interim relief pending the hearing of the application for leave to move for judicial review. But, if the judge has refused leave to move for judicial review he is functus officio and has no jurisdiction to grant any form of interim relief. The application for an interlocutory injunction or other interim relief could, however, be renewed before the Court of Appeal along with the renewal of the application for leave to move for judicial review.”

Having appealed against the charge of contempt, the Court of Appeal held that the Crown, a government department or a Minister were exempt from contempt; whereupon the case was presented to the House of Lords.

Here it was declared that Garland J had been acting well within his judicial powers throughout, and that in consideration of the limited knowledge held by the Home Secretary, it was only reasonable that the charge of contempt was applicable to the position held, rather than that of his own personal acts; at which point, the Home Office appeal was dismissed subject to amendments, while the House reminded the parties that:

“[W]hile a citizen is entitled to obtain injunctive relief (including interim relief) against the Crown or an officer of the Crown to protect his interests under Community law he cannot do so in respect of his other interests which may be just as important.”