Case No: C.00/2847
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HON. MR. JUSTICE SCOTT BAKER

Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 7 December 2000

B e f o r e :

LORD JUSTICE SCHIEMANN
LORD JUSTICE TUCKEY
and 
SIR SWINTON THOMAS
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	ABDUL RAHEEM SHEIKH		Appellant	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	

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(Transcript of the Handed Down Judgment of
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ROBERT JAY Q.C. (instructed by Nicholas Blake, Menon Solicitors,DX 42061 Southhall 1) for the Appellant
STEVEN KOVATS (instructed by Elenor Gray, Treasury Solicitor Queen Anns Chambers, 28 Broardway London SW1H 9SS) for the Respondent

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Schiemann:

Introduction
1.   This is the judgment of the court. This appeal from Scott Baker J raises important issues as to the relief available to a person who alleges that he is being wrongfully detained. In particular what is the court to do if an applicant for relief, having made an unsuccessful challenge by way of judicial review to the legality of his detention, then brings proceedings for Habeas Corpus? In particular, does it make a difference that the challenge by way of judicial review failed because it was made late and the court considered it inappropriate to extend the time?

The factual background
2.   The factual background against which these questions fall for decision is as follows. The appellant is a citizen of Pakistan. He entered this country on 14.2.1994 and obtained a 6 month leave to enter. On 5.8.1994 he applied for asylum. As a result of what was said in subsequent interviews the Home Secretary formed the view that the 6 month leave to enter had been obtained by deception. On 10.7.1995 the appellant was in consequence served with notice that he was an illegal entrant as defined in section 33(1) of the Immigration Act 1971. We refer to the decision upon which this notice was based as “the illegal immigrant decision”. The appellant denies that he obtained leave to enter by deception but he did not challenge the illegal immigrant decision at the time. Instead he awaited the decision on his asylum application. On 17.5.1996 the Home Secretary refused his application for asylum. He appealed against that refusal to the special adjudicator who dismissed his appeal on 6.8.1997. He applied to the Immigration Appeal Tribunal for leave to appeal to that tribunal. This was refused on 7.10.1997. He was detained on 1.6.1998 but released on bail by the Chief Immigration Officer a few days later. He is still on bail. On 11.06.1998 he lodged an application for judicial review of the various decisions relating to his asylum application. He did not, even at this stage, challenge the illegal immigrant decision. 

3.   The application for judicial review of the asylum decisions was listed for hearing before Lightman J on 20.11.1998.  6 days before that the applicant applied to be given leave to apply for judicial review of the illegal immigrant decision. At the hearing before Lightman J, Mr Ian MacDonald Q.C., who appeared for him, abandoned the application to review the asylum decisions but sought permission to challenge the illegal immigrant decision. This was refused. Lightman J said this:-

“My difficulty is that the decision in question was made on 10th July 1995 and there has not been a whisper of a suggestion between that date and the date of this application that there was anything wrong with that determination of 10th July 1995.  I fully accept that in the interim period there has been an asylum application and that has been followed by other efforts on his client’s behalf to secure that his client should be entitled to remain in this country.  But I cannot think that is any justification for the delay since 10th July 1995 in challenging that decision, if that decision is to be challenged.

It seems to me, that it would be quite wrong that a decision of that sort, left outstanding for that period of time, is now to be challenged in judicial review proceedings.... I must therefore refuse leave.”

4.   The appellant did not at that point apply for Habeas Corpus. Instead Mr MacDonald applied to this court (Beldam and Tuckey LJJ and Jonathan Parker J) for leave to move for judicial review of the illegal immigrant decision. This was refused. Beldam L.J. said this:-

“The second point argued by Mr. MacDonald was that, in this case on an application under Order 53 for certiorari, the Court’s approach must be the same as, or akin to, its approach to an application for a writ of Habeas Corpus.  A writ of Habeas Corpus goes as of right, and therefore the Court would have no discretion to refuse the remedy if it was satisfied that the Secretary of State did not discharge the burden of proof to the standard required.  Miss Foster did not specifically address that question, but accepting that the standard of proof was a high one, she said that the Court does have a discretion under Order 53 r. 4 and under Section 31 (6) of the Supreme Court Act 1981 to refuse to extend the time for making this application if it is not made promptly and in any event within 3 months.
.............
The first question which the Court has to decide is whether, in an application made 3 years and 9 months after the decision was made, the Court should extend the applicant’s time to seek judicial review in this renewed application.  For my part, I am satisfied that the Court is entitled to look at the length of delay and the reasons (if any) advanced for it.
But Miss Foster advanced a further consideration which I consider a powerful one.  She says that the length of delay in this case is so long that the documents upon which the decision sought to be challenged was made, are not readily available and it is quite possible that they will not be available.  Secondly, the matter is now so old that recollection may well have faded.
No reasons are given for the delay, save that Mr. MacDonald submits that the application would have been premature if made within the ordinary time.  But Miss Foster says it would not.  Many applications are made in circumstances such as this, and the course which is then adopted is that the application is adjourned to await the outcome of the Secretary of State’s decision on the application for asylum.  For my part I am satisfied that in this case we ought not to grant an extension of time for the renewed application for judicial review.
That makes it unnecessary for the Court to express any opinion on the other two matters, but I should say that, for my part, I have looked most carefully and critically at the Secretary of State’s decision based on the Immigration Officer’s decision to treat the applicant as an illegal entrant.  I am satisfied that the answers the applicant gave were so contradictory to the reasons he gave for seeking entry in the first place that, if it had been necessary to do so, I would have been satisfied that the burden of proof was discharged to a sufficient degree of certainty.  For the reasons I have stated, I would dismiss this application”.

Tuckey L.J. said “I agree” and Jonathan Parker J. said “I also agree”.

5.    While it is clear that consideration was given to the apparent underlying merits (or lack of them) of the challenge to the illegal immigrant decision, we accept the submission on behalf of the appellant that there has been no binding decision on them.

6.   On the day after the Court of Appeal hearing the solicitors then acting for the appellant wrote to the Immigration and Nationality Department of the Home Office as follows:
“Abdul Raheem SHEIKH
The above named’s application for judicial review was refused by the Court of Appeal yesterday, but leading counsel Mr. Ian MacDonald has advised that this decision in no way precludes an application for Habeas Corpus being made, and we are waiting for counsel’s  further advice as to whether or not to proceed with this at the present time..... “

7.   Three weeks later an application for Habeas Corpus was launched by the appellant. This came on for hearing before Scott Baker J on 15.6.2000. He dismissed it on abuse of process grounds.

The interrelation of judicial review and Habeas Corpus
8.   When a person is detained as a result of an administrative action he can challenge the legality of that detention. It is for the detainer to produce legal justification for the detention. In the present case this involves demonstrating that the appellant is an illegal immigrant. 

9.   As our law presently stands the challenge to the legality of the detention can be made by way of judicial review or by way of Habeas Corpus. There were those who attempted to persuade the Law Commission to recommend the abolition of Habeas Corpus on the ground that it was now no longer necessary to retain this ancient procedure but they failed – see Administrative Law : Judicial Review and Statutory Appeals (Law Com No 226 para. 11.4). Whatever procedure is employed, the detainer has to show the legality of the detention. Underlying the difficulties in the present case is a conflict between two principles. The principle underlying Habeas Corpus is that each day’s detention has to be justified and if someone is wrongfully detained the fact that he does not challenge the legality of his detention for 3 years does not prevent him from challenging it thereafter, at any rate whilst he is still detained. The principle underlying judicial review is that if someone wishes to challenge the legality of an administrative action he must do so expeditiously; if he does not, the court, although it can grant him extra time, can refuse him relief simply because he failed to act expeditiously.

10.   The interrelationship of the two remedies was reviewed in judgments delivered in July 1998 in B v Barking Havering & Brentwood Community Health Care NHS Trust [1999] 1 FLR 106.  Lord Woolf M.R. at page 114 said:

“The applicant cannot be criticised for making applications both for Habeas Corpus and judicial review.  However, that this should be thought necessary can cause inconvenience to the parties and the Court and extra expense to the parties.  The procedural reforms to RSC Order 53 which streamlined the procedure on an application for judicial review were not accompanied by reforms to the procedure on an application for the writ of Habeas Corpus.  There are probably two reasons for the unwillingness of reformers to tackle Habeas Corpus.  The first is the relative rarity, until recently, of reliance on Habeas Corpus, a position which is likely to change in the event of the European Human Rights Convention becoming part of our domestic law.  The second is the  veneration which is paid to Habeas Corpus because of its historic role in protecting the liberty of the subject.  This is a veneration which is probably no longer justified in view of the ability of judicial review to provide a remedy equally expeditiously whenever the liberty of the subject is threatened.....

On the surface the difference between the two procedures is total.  There are different prescribed forms for initiating the applications.... there is no leave stage or discretionary bars and no requirement of leave to appeal in the case of Habeas Corpus.  Furthermore the grant of Habeas Corpus is said to be as of right so unlike the prerogative orders available on judicial review its grant is said not to be discretionary (see Sharpe The Law of Habeas Corpus) (Clarendon Press Second Edition, 1989), pp 58-59).  However, in reality the differences are less significant.  The evidence will invariably be the same whether the application is for judicial review or Habeas Corpus, there is usually a two-stage procedure on an application for Habeas Corpus (Order 54, rules. 1 & 2) and at the first stage if the application is without merit it will be dismissed.  If it has merit it will usually be adjourned for an inter partes hearing and as in both cases there is power to grant interim relief the result will be very much the same, though in fact the variety of interim powers on an application for judicial review are (sic) greater than on an application for Habeas Corpus.  On judicial review there is little scope for delay or discretion to play any part if the applicant is being wrongfully detained and the application for judicial review will be expedited if the liberty of the subject is at stake.  While there is the unrestricted right of appeal in the case of Habeas Corpus, the Court of Appeal is now developing its case flow management so that an obviously unmeritorious appeal will be struck out summarily so there will increasingly be less advantage in being able to avoid the filter of leave.  

It is sometimes thought that Habeas Corpus has advantages over judicial review because of the difference in the burden of proof.  However, in practice I suggest this has no practical consequence.  It is always for the custodian to show there is some justification for detention....
I would apply without limitation the words of Lord Wilberforce in R v Secretary of State for the Home Department ex parte Khawaja [1984] 1 AC 74, 99:
“These remedies of judicial review and Habeas Corpus are, of course, historically quite distinct and procedurally are governed by different rules, but I do not think that in the present context it is necessary to give them distinct consideration.  In practice, many applicants seek both remedies.  The Court considers both any detention which may be in force and the order for removal: the one is normally ancillary to the other.  I do not think that it will be appropriate unless unavoidable to make a distinction between the two remedies and I propose to deal with both under a common principle.  Each of the present cases appears, in fact, to be of judicial review”.

.... I would discourage applications for Habeas Corpus unless it is clear that no other relief will be required.....  This is a case where judicial review is the more satisfactory procedure and judicial review should be used in similar situations in the future.  If it is, there would be no justification for also making an application for Habeas Corpus.

I hope in the future it will possible to make an order for Habeas Corpus on an application for judicial review.  Until this is possible if both applications are made again every effort should be made to harmonise the proceedings.  The affidavit should be used for both sets of proceedings.  At any interlocutory and the final hearing both sets of proceedings should be before the Court.  In the event of an appeal the same Notice of Appeal will suffice.”

11.   Lord Justice Hobhouse said at page 117:

“I would like to endorse the need for further consideration and guidance to be given to when an application for the writ or for judicial review is appropriate.  Whilst it is of the greatest constitutional importance that the availability of the right to apply for the writ should in no way be undermined, it may be thought that the present procedural confusion and overlap is undesirable and requires reconsideration and clarification.  The present case has not in my judgment provided us with an adequate opportunity definitively to undertake that task; meanwhile I support all that the Master of the Rolls has said on this subject in the concluding part of his judgment.”

Lord Justice Thorpe also expressed his agreement.

12.   Although not cited in the Barking case, there had been an earlier case to the same effect.  It was R v Leeds Crown Court, ex parte Hunt[1999] 1 W.L.R.841, D.C., which was a case in which a Crown Court judge’s decision to extend the custody time limit was challenged both by judicial review and by Habeas Corpus. Lord Bingham C,J, said :-
“The concurrent application for Habeas Corpus was wholly unnecessary and served only to increase costs unnecessarily. It should not have been made.”

Finality in litigation and justice
13.   In the present case we have to consider a conflict between two further principles which underlie our law - the courts are there to do justice yet there must be finality in litigation. 

14.   The principle that there must be finality in litigation can be found in many legal systems, at least since the times of ancient Rome. Many a litigant, for reasons which are perfectly understandable particularly if he has a weak underlying case, wishes to be able to harry his opponent by repeated legal actions until the latter finally gives up. Such harrying can be attempted by bringing forward new facts each time, or by bringing forward new arguments each time or by using different procedures to test the legality of the administrative action.  Quite apart from the effect as between the parties, where the dispute involves the legality of administrative action such repeated litigation leaves the validity of administrative decisions in doubt and consumes much administrative and judicial time and money. That time and money cannot then be devoted to other more profitable things. That is the argument for insisting that a party must bring forward the whole of his case in one go. 

15.   However, one must realise that such an insistence involves paying a price and may at times involve an injustice. New evidence can come forward or the loser’s lawyers may not have been diligent or astute enough to do all that they could have done. Is a party to be denied justice because he did not put forward the best arguments coupled with the best evidence at the best time by the best procedures? 

16.   This is not a new problem and the courts have frequently addressed it in different contexts. A leading authority in the context of Habeas Corpus is the judgment of the Divisional Court (Lord Widgery C.J., Griffiths and Gibson JJ)  given by Gibson J. in R v Governor of Pentonville Prison ex parte Tarling [ 1979] 1 W.L.R. 1417, 1422-1423, when he said:
“First, it is clear to the Court that an applicant for Habeas Corpus is required to put forward on his initial application the whole of the case which is then fairly available to him.  He is not free to advance an application on one ground, and to keep back a separate ground of application as a basis for a second and renewed application to the Court.  The true doctrine of estoppel known as res judicata does not apply to the decision of this Court on an application for Habeas Corpus .......   there is, however, a wider sense in which the doctrine of res judicata maybe applicable, whereby it becomes an abuse of process to raise in subsequent proceedings matters which could, and therefore should, have been litigated in earlier proceedings...... ...that principle is applicable to proceedings for Habeas Corpus... although no doubt, the stringency of the application of the principle maybe different in cases concerning the liberty of the subject from that in cases concerning such matters as disputes upon property.”

17.   This passage was approved by this court (Sir John Donaldson M.R., Fox and Stephen Brown JJ) in R v Home secretary, ex p. Momin Ali [1984] 1 W.L.R. 663. The Master of the Rolls, with whom the other members of the court agreed on this point, said  at 670:

“....I think that the principles which underlie estoppel and the decision in  Ladd v Marshall, namely that there must be finality in litigation, are applicable, subject always to the discretion of the Court to depart from them if the wider interest of justice so requires.  In expressing this conclusion I find myself in complete agreement, mutatis mutandis, with the judgment of the Divisional Court, given by Gibson J. in R v Governor of Pentonville Prison ex parte Tarling 
[ 1979] 1 W.L.R. 1417

The appellant’s submissions
18.   Mr Robert Jay Q.C., recognises the difficulties which the appellant faces, namely, that, applying the reasoning in Tarling it is clear that the application for Habeas Corpus could and should have been made earlier, at the latest before 
Lightman J.  

19.   However, he reminded the court of the following considerations-
1.	As appears from the Barking and the Hunt cases, the court in general discourages the making of concurrent Habeas Corpus and judicial review applications.
2.	The passing of time, while manifestly a relevant matter in most judicial review cases, is not a relevant matter when considering applications for Habeas Corpus. So long as a person is in prison he is entitled to challenge his continued detention.
3.	Habeas Corpus may be pursued although the applicant has been released from custody and is on bail :In re Amand [1941] 2 K.B.239, at 249
4.	Therefore had an application been made for Habeas Corpus instead of judicial review that application would not have been vulnerable to being dismissed by reason of the passage of time.
5.	Therefore Lightman J and this court erred in striking out for that reason the judicial review application which was but another procedural technique for challenging the validity of the illegal immigrant decision upon which the legality of the detention and imposition of the bail conditions depended. They should have extended the time as a matter of course. Unfortunately their attention was not drawn to Lord Woolf M.R.’s accurate comment in the Barking  case at page 115 “On judicial review there is little scope for delay or discretion to play any part if the applicant is being wrongfully detained.” This court was not bound by the reasoning behind the decision in the instant case to refuse permission to appeal, albeit that it was a decision of this court.  
6.	While it may have been a misjudgement on the part of the applicant’s then advisors not to have launched Habeas Corpus proceedings instead of judicial review proceedings, it was perfectly understandable that they took the view that the court would, in the circumstances of the present case, extend time in the judicial review proceedings.
7.	There has been no proper investigation by a court into the underlying merits of the Home Secretary’s assertion that the applicant is an illegal immigrant.
8.	The burden of making that assertion good lies on the Home Secretary.
9.	As both Tarling and Momin Ali make clear, in cases involving freedom of the person, the court is free to be less stringent in the application to the normal principles which encourage finality of litigation.

20.   He submits that, although at first blush this looks like a case of abuse of process, closer examination reveals that there was no deliberate abuse – at worst a misjudgement – Mr MacDonald had made it perfectly clear throughout that he was relying on what could have been done had the application been made, not by way of judicial review, but by Habeas Corpus.

21.   The Respondent’s submissions.
1.	There is no explanation still less evidence before the court as to why no application for Habeas Corpus was made after the hearing before Lightman J.. In the absence of an explanation this court should treat what appears to be an abuse as an abuse. 
2.	While it was accepted that the merits were not part of the ratio decidendi of the Court of Appeal decision, they were clearly considered and the conclusion on them is influential in the context of an abuse of process case.
3.	The crucial question in the present case is the legality of the decision that the applicant is an illegal immigrant. The general rule is that where a direction is given for the removal of an immigrant on this ground, he is entitled to appeal – At the relevant time the appropriate section was section 16 of the Immigration Act 1971.

Conclusion
22.   On the face of it there was here an abuse of process for which no explanation has been advanced either on instructions or in the evidence. Bearing in mind that the appellant is not in fact in custody, that his asylum application has been found to be groundless, that he has failed to persuade a previous court of appeal or us that the Secretary of State’s conclusion that he is an illegal immigrant is manifestly groundless and that he has a right of appeal once he has left these shores we do not consider that justice requires that we depart from the general principles in relation to finality of litigation to which we have referred earlier in this judgment.

23.	This appeal is therefore dismissed.

Order:  	Appeal dismissed with costs.

(This order does not form part of approved judgment)