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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
    1. Cooper v Wandsworth Board of Works [1863] 143 ER 414
    2. R v Metropolitan Police Commissioner, ex parte Parker [1953] 2 All ER 717
    3. Ridge v Baldwin and others [1963] 2 All ER 66
    4. Re K (H) (an infant) [1967] 1 All ER 226
    5. Schmidt and Another v Secretary of State For Home Affairs [1969] 1 All ER 904
    6. McInnes v Onslow Fane and another [1978] 3 All ER 211
    7. R v Hull Prison Board of Visitors, ex parte St Germain and others (No 2) [1979] 3 All ER 545
    8. Attorney-General of Hong Kong v Ng Yuen Shiu (Privy Council) [1983] 2 W.L.R. 735; [1983] 2 A.C. 629
    9. R v Secretary of State for the Home Department, ex parte Khan [1985] 1 All ER 40
    10. R v North East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850
    11. Regina v Secretary of State for Education and Employment, ex parte Begbie (CA) [2000] 1 W.L.R. 1115
    12. R (on the application of Bibi) v London Borough of Newham; [2001] EWCA Civ 607; [2002] 1 WLR 237 (CA).
    13. R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd (HL) [2002] UKHL 8; 2002] 4 All ER 58.
    14. Metropolitan Properties Co (F G C) Ltd v Lannon and Others [1968] 3 All ER 304
    15. R v Gough [1993] 2 All ER 724
    16. R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577
    17. Taylor v Lawrence [2003] QB 528
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v Secretary of State for the Home Department, ex parte Khan [1985] 1 All ER 40

PARKER LJ:.... The applicant is by birth a citizen of Pakistan. He is settled in this country; having been given indefinite leave to remain, notwithstanding his original illegal entry in October 1972, under an amnesty of 28 February 1975. His wife was given indefinite leave to remain on her arrival in February 1976. He and his wife have been married for some six years and have been informed that for medical reasons they are incapable of having a child of their own. They desire to adopt one Shehzad who was born in Pakistan on 10 October 1978.... In the autumn of 1981 the applicant, whose brother and sister-in-law were willing for their child to be adopted, went to the Dalston citizens' advice bureau to seek advice about the procedure for adoption. He was there handed a letter issued by the Home Office explaining the system. That letter is the foundation of the applicant's case and it is necessary to set out certain parts of it.....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.'Anyone reading this paragraph would have no difficulty in understanding that a child could not be brought in for adoption under the Immigration Rules and that if a child was to be allowed in for such a purpose it would only be at the discretion of the Home Secretary and in exceptional cases. Such cases would arise only where the Home Secretary was satisfied of the four matters specified, namely: (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. The paragraph does not say that on the Home Secretary being satisfied as to such four matters the child will be allowed in, although a reader might well infer that this would be the likely result.....

The entry clearance officer at Islamabad, having interviewed the applicant, the natural mother and the child on 22 October 1981, sent a report with the necessary documentation attached to the Home Office on 11 November 1981. No complaint is made about that report. It includes certain statements which must be mentioned. They are (a) that the applicant 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.

The applicant, having been told that his application for entry clearance would be referred to the Home Office, returned to this country on 7 November 1981 and waited.

I now return to the Home Office letter which sets out, or purports to set out, what would happen when the entry clearance application was referred to the department. It is in the following terms:

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.... 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....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. (Emphasis as in letter.)

In fact the undertakings in App 2 had been duly signed on the visit to Pakistan and were forwarded by the entry clearance officer with his report. According to the Home Office letter the procedure to be adopted on receipt of the report was therefore as follows: (1) the Home Office would inquire of the Department of Health and Social Security if there were any apparent reasons why a court would refuse to grant an adoption order; (2) that department would then arrange for appropriate inquiries to be made through the applicant'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 inquiries in the country of origin might be made.

In the case of the applicant the above procedure was not however initiated...[T]he Islamabad entry clearance officer issued a refusal of the application made on behalf of the child in the following terms:

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".

In the light of the Home Office letter the terms of the second sentence are a little surprising. The applicant took legal advice. An appeal on behalf of the child was launched but it is common ground that this must fail because it is clear that no case under the Immigration Rules can be made out. The applicant, however, also applied for judicial review of the refusal of the application for entry clearance and an order of certiorari to quash it.....

In opposition to the application an affidavit sworn by a senior executive in the Home Office, one Daphne Hewett, was filed on behalf of the Secretary of State. She deposed that the discretion of the Secretary of State to allow entry to a child for adoption is exercised on closely analogous principles to those laid down in the Statement of Changes in Immigration Rules (HC Paper (1979(80) no 394), para 46, and that guidance in very general terms for prospective adopters is given in the Home Office letter to which I have referred.

The relevant part of para 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....

If this was the policy, the 'guidance' given in the Home Office letter is grossly misleading, as was frankly accepted by counsel on behalf of the Secretary of State....

The applicant relies on three authorities on the basis of which he contends that the refusal of entry clearance should be quashed. The first of these cases is Re Liverpool Taxi Owners' Association [1972] 2 All ER 589. In that case the corporation had statutory powers to license such numbers of Hackney carriages or coaches as they thought fit. The corporation gave public and private undertakings that no licences in addition to the existing number (300) would be issued until proposed legislation had been enacted and come into force. Notwithstanding the undertakings, which were given on 4 and 11 August 1971, the corporation in December resolved to increase the number of licences to 350 from 1 January 1972, to 400 from 1 July 1972 and thereafter without limit. The proposed legislation was expected to be in force in early 1973. The Court of Appeal prohibited the corporation from acting on the resolution to increase the numbers without first hearing any representations which might be made by interested persons and any other matters relevant thereto including the undertaking of 11 August.

The form of the order was the result of the decision that the undertaking was binding so long as the performance of it was compatible with the corporation's public duty....

In that case there was a specific undertaking, whereas here there is not; the corporation had a statutory power, whereas here the power of the Secretary of State is a common law power; and the matter complained of was a positive act, whereas here the complaint is a refusal to act. There can, however, be no doubt that the Secretary of State has a duty to exercise his common law discretion fairly. Furthermore, just as, in the Liverpool Taxi Owners case, the corporation was held not to be entitled to resile from an undertaking and change its policy without giving a fair hearing so, in principle, the Secretary of State, if he undertakes to allow in persons if certain conditions are satisfied, should not in my view be entitled to resile from that undertaking without affording interested persons a hearing and then only if the overriding public interest demands it.

The...third authority is a Privy Council case, A-G of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346....For some years prior to 23 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 23 October 1980 the government announced that this policy would be discontinued forthwith 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 inquiry 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, was of Chinese origin. They were accordingly worried and on 28 October 1980 a group, not including Mr Ng, went to Government House and submitted a petition. There, there were read out a series of questions and answers prepared in the office of the Secretary for Security which dealt with the position of such persons and the action they should take. One of such questions, with its answer, was:

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.

Although Mr Ng was not present he did see a television programme on the subject on the evening of the same day.

On 31 October a removal order was made against him. This he challenged and eventually on 13 May 1981 the Court of Appeal of Hong Kong made an order of prohibition prohibiting the Director of Immigration from executing the removal order before an opportunity had been given to Mr Ng of putting all the circumstances of his case before the director. The Attorney General of Hong Kong appealed to the Privy Council.

The High Court and the Court of Appeal in Hong Kong had both held that Mr Ng had no general right to a fair hearing before a removal order was made against him and the Judicial Committee assumed, without deciding, that they had rightly so decided. It was concerned only with the narrow question whether what had been said outside Government House entitled Mr Ng to such a hearing. It is necessary to cite four passages from Lord Fraser's judgment:

"'legitimate expectations' in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis". (My emphasis.)

"The expectations may be based on 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 in unfair or inconsistent with good administration for him to be denied such an inquiry". (My emphasis.)

"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 respondent, along with other illegal immigrants from Macau, in the announcement outside Government House on 28 October 1980, that each case would be considered on its merits...." (My emphasis.)

"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 respondent 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 31 October against the respondent. 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 respondent has been given an opportunity to make such representations as he may see fit as to why he should not be removed".

That case is, of course, not binding on this court but is of high persuasive authority. In my view it correctly sets out the law of England and should be applied.

I have no doubt that the Home Office letter afforded the applicant a reasonable expectation that the procedures it set out, which were just as certain in their terms as the question and answer in Mr Ng's case, would be followed, that if the result of the implementation of those procedures satisfied the Secretary of State of the four matters mentioned a temporary entry clearance certificate would be granted and that the ultimate fate of the child would then be decided by the adoption court of this country. I have equally no doubt that it was considered by the department at the time the letter was sent out that if those procedures were fully implemented they would be sufficient to safeguard the public interest. The letter can mean nothing else. This is not surprising. The adoption court will apply the law of this country and will thus protect all the interests which the law of this country considers should be protected. The Secretary of State is, of course, at liberty to change the policy but in my view, vis--vis the recipient of such a letter, a new policy can only be implemented after such recipient has been given a full and serious consideration whether there is some overriding public interest which justifies a departure from the procedures stated in the letter.....

I would only add this. If the new policy is to continue in operation, the sooner the Home Office letter is redrafted and false hopes cease to be raised in those who may have a deep emotional need to adopt, the better it will be. To leave it in its present form is not only bad and grossly unfair administration but, in some instances at any rate, positively cruel.