Singh, R (on the application of) v Secretary Of State For Home Department

The Immigration Rules approved by Parliament establish the broad policy, but the Secretary of State may create a discretionary exception for religious ministers lacking appropriate entry clearance. That policy is complied with when the application is considered, rather than necessarily granted. In reviewing the exercise of that discretion, the court will not require every enquiry suggested by the applicant or substitute its assessment of the evidence. The principle that an illegal entrant is not an outlaw does not make refusal of a discretionary exception a penalty. Nor does consideration of false passport endorsements, without proof of the applicant’s involvement in fraud, necessarily place the decision outside the law.

The applicant, a Sikh priest, challenged removal directions and a ministerial decision maintaining the refusal to admit him to the United Kingdom. He had previously overstayed, lacked the required visa, and presented a passport containing counterfeit Home Office endorsements. Representations were made that his removal would disrupt the Sikh community, but enquiries indicated that other priests could perform his duties.

Richards J refused permission to apply for judicial review, and Buxton LJ refused permission on paper. The renewed application before Schiemann LJ concerned whether the Secretary of State had properly applied the 1982 policy on exceptional consideration of religious-minister applications, and whether the decision-making process was otherwise unlawful.

The renewed application for permission to apply for judicial review was refused. Permission to appeal was also refused.

1. Immigration policy and discretion. The Immigration Rules, approved by Parliament, set the broad policy governing entry. The Secretary of State’s 1982 policy recognised a residual discretion to consider applications for religious positions even where the applicant lacked appropriate entry clearance. It did not require admission. The material showed that the Secretary of State had considered whether to make an exception on a broad basis and had therefore complied with the policy.
2. Relevant considerations. The applicant argued that undue weight had been given to the false endorsements in his passport. The court recognised the force of the argument, but found no basis for concluding that the Secretary of State had acted unlawfully in considering the circumstances of the application. The applicant had not been prosecuted and his personal involvement in procuring the false endorsement had not been established, but refusal to exercise a discretion in his favour was not a penalty.
3. Community enquiries. The adequacy and extent of enquiries into the effect of removal on the Sikh community were matters for the Secretary of State. The court had no sufficient basis to conclude that the enquiries or the reliance placed on departmental advice took the decision outside the law.
4. The fact that an illegal entrant is not an outlaw did not entitle the applicant to the discretionary exception. Since the Secretary of State had applied the Parliamentary rules, considered the relevant policy and reviewed the community implications, there was no realistic prospect of a successful appeal.

• High Court, Administrative Court: Richards J refused permission to apply for judicial review.
• Court of Appeal (Civil Division): Buxton LJ refused permission on paper. Schiemann LJ refused the renewed application and permission to appeal.