A United States’ citizen was subject to a deportation decision which was held not amenable to judicial review on the ground of national security. He appealed.
Held: Neither a failure to lay rules before Parliament within the allotted time, nor disapproval by negative resolution invalidates them. There was a need for common fairness.
The asylum convention has been given a status superior to the Immigration Rules, but they are not law of the status of a statutory instrument but something rather less.
The immigration rules are ‘a practical guide for the immigration officers’, and ‘a curious amalgam of information and description of executive procedures’.
Lord Denning MR allowed that the public interest in confidentiality can be paramount. He said: ‘When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice’ and ‘The information supplied to the Home Secretary by the Security Service is, and must be, highly confidential. The public interest in the security of the realm is so great that the sources of information must not be disclosed, nor should the nature of the information itself be disclosed, if there is any risk that it would lead to the sources being discovered. The reason is because, in this very secretive field, our enemies might try to eliminate the source of information.’
The Immigration Rules are not law: ‘They are not rules of law. They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the Act. They can be, and often are, prayed in aid by applicants before the courts in immigration cases.
When one bears that in mind, there is no right in the applicant to dictate to the Secretary of State which set of Rules should be applied at the time of the decision of a case. The Rules are essentially rules which have to be regarded at the time of a decision.
The argument of Mr Nathan that in effect this is giving retrospective effect to the Rules, and then by analogy to the interpretation of statutes contending that that was not permissible, is, in my view, a mistaken approach. The Rules and their statutory interpretation depend very largely on vested rights. There were no such rights in the present case.’ and ‘they are not rules in the nature of delegated legislation so as to amount to strict rules of law’
Geoffrey Lane LJ said: ‘if Parliament disapproves of the rules they are not thereby abrogated: it merely becomes necessary for the Secretary of State to devise such fresh rules as appear to him to be required in the circumstances.’
As to the prevailing of public interest over the need for openness: ‘It may well be that if an alien is told with particularity what it is said he has done it will become quite obvious to him from whence that information has been received. The only person who can judge whether such a result is likely is the person who has in his possession all the information available . . If he comes to the conclusion that for reasons such as those which I have just endeavoured to outline he cannot afford to give the alien more than the general charge against him, there one has the dilemma. The alien certainly has inadequate information upon which to prepare or direct his defence to the various charges which are made against him, and the only way that could be remedied would be to disclose information to him which might probably have an adverse effect on the national security. The choice is regrettably clear: the alien must suffer, if suffering there be, and this is so on whichever basis of argument one chooses.’
What is fair cannot be decided in a vacuum.
Lord Widgery CJ said that the ‘principles of natural justice are those fundamental rules, the breach of which will prevent justice from being seen to be done.’ He went on to describe the maxim as ‘one of the rules generally accepted in the bundle of the rules making up natural justice.’
Judges:
Geoffrey Lane LJ, Cumming-Bruce LJ, Lord Denning MR, Lord Widgery CJ
Citations:
[1977] 1 WLR 766, [1977] 3 All ER 452
Cited by:
Cited – Secretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
Cited – Alvi, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimant had entered as a student, and then stayed under a work permit. New rules were brought in, and because his occupation as a physiotherapy assistant was not listed, he was not credited with sufficient points for a permit. The Court of . .
Cited – Regina (Tucker) v Director General of the National Crime Squad CA 17-Jan-2003
The applicant was a senior officer seconded to the National Crime Squad. He complained that his secondment had been terminated in a manner which was unfair, and left him tainted without opportunity to reply. He appealed against rejection of his . .
Lists of cited by and citing cases may be incomplete.
Constitutional, Immigration, Natural Justice
Updated: 02 May 2022; Ref: scu.417813