Sheikh v Secretary Of State For Home Department

Judicial review and habeas corpus are alternative procedures for challenging the legality of administrative detention. The availability of habeas corpus does not permit repeated challenges through different procedures where the applicant could and should have advanced the whole case earlier. Finality of litigation remains applicable in habeas corpus proceedings, although the court retains a discretion to depart from it where the wider interests of justice require. The discretion is applied with appropriate regard to the liberty of the subject. Where an earlier judicial review failed because it was brought late, a later habeas corpus application may nevertheless be an abuse of process if it raises matters that should have been litigated earlier.

The appellant, a Pakistani citizen, was treated as an illegal entrant under section 33(1) of the Immigration Act 1971. His challenges to the asylum decisions proceeded unsuccessfully. A later application for permission to seek judicial review of the illegal-entrant decision was refused because of substantial delay, first by Lightman J and then by the Court of Appeal.

The appellant subsequently applied for habeas corpus. Scott Baker J dismissed the application as an abuse of process. The appeal concerned the relationship between judicial review and habeas corpus, and whether the earlier refusal of judicial review for delay prevented the later application.

1. Appeal dismissed. The court held that the appellant’s habeas corpus proceedings were, on their face, an abuse of process because the challenge to the legality of his detention could and should have been brought earlier.
2. Both judicial review and habeas corpus may be used to challenge administrative detention, and in either procedure the detainer must establish the legal justification for detention. Habeas corpus is not defeated merely by delay while a person remains detained, whereas judicial review is subject to promptness requirements. That procedural distinction does not authorise repeated litigation of the same underlying challenge.
3. The principle in R v Governor of Pentonville Prison ex parte Tarling [1979] 1 W.L.R. 1417 applies to habeas corpus. An applicant must put forward the whole case fairly available on the first application. Although strict res judicata does not apply in the ordinary sense, it may be an abuse of process to raise later matters which could and should have been litigated earlier.
4. The principle of finality is subject to the court’s discretion to depart from it where the wider interests of justice require. The appellant was not in custody, had provided no explanation for failing to apply for habeas corpus after the hearing before Lightman J, and had failed to show that the earlier refusal of judicial review left justice requiring a further hearing on the merits.
5. The earlier Court of Appeal’s observations on the apparent merits of the illegal-entrant decision were not binding, because the refusal of judicial review was based on delay. They nevertheless formed part of the factual context relevant to the abuse-of-process decision. The appeal was dismissed with costs.

• Court of Appeal (Civil Division) — [2000] EWCA Civ 308: appeal dismissed with costs.
• High Court — Scott Baker J dismissed the habeas corpus application as an abuse of process.
• Earlier judicial review proceedings — Lightman J refused permission to challenge the illegal-entrant decision because of delay. The Court of Appeal subsequently refused permission to appeal that decision.