C/2002/1763
Neutral Citation Number: [2002] EWCA Civ 1571                                               
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
APPLICATION FOR PERMISSION TO APPEAL AND
 AN EXTENSION OF TIME
(IMMIGRATION APPEAL TRIBUNAL)
Royal Courts of Justice 
Strand 
London, WC2 

Thursday, 3rd October 2002
 
B E F O R E:

LORD JUSTICE BUXTON
 
 LORD JUSTICE KEENE 

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SINGH and Another 
Applicant 
‑v‑
 
SECRETARY OF STATE FOR THE HOME DEPARTMENT 
    Respondent 

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(Computer‑Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
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MR R DE MELLO (instructed by Harban Singh & Co of Handsworth, Birmingham) appeared on behalf of the Applicant
The Respondent was not represented and did not attend 

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J U D G M E N T
1.	LORD JUSTICE BUXTON: This is a renewed application for permission to appeal from the determination of the Immigration Appeal Tribunal brought by Mr Bakhtawar Singh.  He has had the advantage throughout these proceedings of representation by Mr de Mello, who has addressed us carefully and in detail on this renewed application.  
2.	The very brief background is that Mr Bakhtawar Singh first encountered the immigration machinery of this country as long ago as 1980 when he applied for entry clearance at New Delhi but then withdrew that application.  In 1986 he entered this country as a visitor under an alias.  His permission to enter was extended until the end of December 1986.  Nothing appears to have happened until he applied for asylum in February 1990, equally giving an alias.  His true identity was not vouchsafed to the authorities until 1992 when he was interviewed by immigration officers.  His asylum claim was refused in 1995 and his appeal in that respect was  dismissed in 1996, he having sought unsuccessfully to appeal on that basis the Immigration Appeal Tribunal.  Regrettably it was not until 2000 that removal directions were set for his return to India.  He made an application for exceptional leave to remain.  That was refused.  
3.	It was not until December 2000 that representations were made in respect of Mr Bakhtawar Singh's interests under the European Convention on Human Rights.  Eventually an appeal was lodged, but distinctively under Section 65 of the Immigration and Asylum Act which is, in my view, limited to issues arising under the Convention.  The Convention rights said to be infringed by his removal to India are twofold: first, during his very lengthy stay in this country, which I accept seems to have been unreasonably extended by failures rapidly to implement immigration policy, he had acquired a number of businesses, developed a family life here and had raised and brought up two children.  Secondly, Mr Bakhtawar Singh is an important member and teacher in the Sikh religion and is a leading light in the Gudwara, or Sikh Temple, in Wolverhampton.  It was contended, first, that his removal to India would impede his ability to manifest his religion under Article 9; and, secondly, that by being deprived of his services the Gudwara itself would be limited in the way in which it and its members could, in their turn, manifest their religion under Article 9.  
4.	The adjudicator, in a very careful and detailed adjudication, rejected the claim under Article 8.  He went through all the factors affecting that claim and came to the conclusion, making the balance that is required under that article and in particular bearing in mind the United Kingdom's interest in maintaining immigration control, that removal of the applicant to to India would not be a disproportionate exercise of the powers of immigration control.  However in respect of the Article 9 claim he reached a different conclusion.  He was influenced by Section 13 of the Human Rights Act 1998 which places emphasis (without going into detailed wording at this stage) on the interests of religious organisations.  He held as follows with regard to Mr Bakhtawar Singh's role in the life of the Gudwara (paragraph 72): 
"No one is indispensable, however, and in due course, if he left the scene, no doubt a satisfactory replacement would come forward, even if not, possibly, of the same quality.  Unquestionably, however the disruption to the Gurdwara and its congregation if the services of Bakhtawar Singh were no longer available would be very great.  In view therefore of the principle in Bakhtaur Singh but especially of the requirement on me as laid down by section 13 of the Human Rights Act, to pay particular regard to the importance of the right of the Gurdwara and its members collectively under Article 9, I find that these considerations tip the balance of proportionality in favour of Bakhtawar Singh."
5.	The Secretary of State appealed to the Immigration Appeal Tribunal on that latter point.  The Immigration Appeal Tribunal took a view that the decision of the House of Lords in Bakhtaur Singh [1986] Imm AR 352 did not apply to cases which were not appeals against deportation, a point to which I will return.  But paragraph 11 of its determination differed from the assessment of the adjudicator.  It pointed out the size of the Gudwara at Wolverhampton and the number of worshippers, and said:
"The adjudicator himself made the point that `No one is indispensable', and it cannot be argued that removal of this one particular illegal entrant, however useful, would disrupt the gudwara's  activities seriously enough to make that a disproportionate way of achieving the objects permitted by article 9.2.  Indeed the only bases on which the adjudicator felt able to find that it would be were Bakhtaur Singh, which as already  explained can have no direct application, in s 13 of the 1998 Act." 
6.	I deal first with the specific findings with regard to the Convention, in respect of which the appeal under Section 65 is brought.  Although there was some uncertainty as to whether the Article 8 point was in issue before the Immigration Appeal Tribunal it would in any event have been impossible to go behind the careful and reasoned decision of the special adjudicator, and no attempt was made to do so in front of Immigration Appeal Tribunal.  
7.	So far as Article 9 is concerned, it was in my view entirely open to the Immigration Appeal Tribunal, looking at the findings of primary fact which have not been contested in the court below, to find, first, that removal to India would not affect the applicant's freedom to manifest his religion:   as a member of the Sikh religion he could clearly manifest that in India.  Secondly, that it would not significantly interfere with the ability of the Gudwara itself to conduct  its activities.  That is a matter of judgement and assessment which, in my view, was open to the tribunal.  Mr de Mello said that that conclusion, in light of what the adjudicator had found, was perverse.  I cannot agree with that.  Article 9, in my judgement, entitles the body applying the law to take into account the requirements of immigration control and it was well open to the Immigration Appeal Tribunal to take that view.  Contrary to what the adjudicator thought, no separate point arises under Section 13 of the Act.  The reference in that section to the Convention rights of persons is a reference to their Article 9 rights.  If, as the tribunals found in this case, Article 9 is not engaged then Section 13 adds nothing to the case.  
8.	Before us Mr de Mello developed a somewhat different point which, it is fair to say, although contained in his grounds of appeal did not, I think, appear in the forefront of his contentions before the Immigration Appeal Tribunal.  Put shortly, he said that, contrary to the view of the Immigration Appeal Tribunal, the decision of the House of Lords in Bakhtaur Singh should have come into account in this case.  What was effectively happening in this case was a removal of Mr Bakhtawar Singh from this country on grounds of his illegal entry, that illegal entry having happened some 14 years ago.  It was therefore, first, required that in such a deportation case the Secretary of State and those assessing his decision should take into account all relevant circumstances, including the interests of third parties, as the House of Lords emphasised in Bakhtaur Singh; and, secondly, in a deportation case there should be taken into account the factors in Rule 364 of the Immigration Rules as amended.  Those include age, length of residence, strength of connections, personal history, domestic circumstances and compassionate circumstances.  The Immigration Appeal Tribunal had wrongly prevented itself from taking those matters into account by its conclusion that the rule in Bakhtaur Singh did not apply in this case.  
9.	I would comment on that as follows.  First, in my view, this is not the appropriate moment at which to determine  whether the Immigration Appeal Tribunal was right in its assessment of the relevance of the case of Bakhtaur Singh.  I am bound to say however that we have to bear in mind although it was the case that Mr Bakhtawar Singh was being deported as an illegal entrant, his appeal and the matters that came before the court, and his only reason for being either before the adjudicator or before the Immigration Appeal Tribunal, and his only ability to bring this case for a second time before the Immigration Appeal Tribunal having been refused leave to appeal as long ago as 1986, was because of his ability to assert an appeal under Section 65 of the Act.  Section 65 is entirely concerned with Convention rights, and it was those Convention rights to which both tribunals have directed their attention.  I am very doubtful indeed whether in such an appeal further matters such as those as argued for by Mr de Mello should be taken into account.  
10.	Whether or not that is right, the substance of this case is that everything that might be deployed under what I call the Bakhtaur Singh jurisprudence was considered by these two tribunals.  The adjudicator looked with the greatest care at all the circumstances of the case under the Article 8 application and in so doing, without making a check list of it, he reached conclusions in respect of all the matters set out in Rule 364.  
11.	As far as third parties are concerned, first, the interests of Mr Bakhtawar Singh's relations were dealt with in the course of dealing with the Article 8 point and the principal third party interest, that of the Gudwara and its congregation, was fully canvassed both by the special adjudicator and by the Immigration Appeal Tribunal.  True it is that they reached different conclusions, but that was a matter of judgement and assessment well open to them whether they were considering the position under Article 9.2 or whether they were considering what I would call a free‑standing interest of third parties under more general immigration rules. 
12.	This would therefore not be an appropriate case in which to test the point of law which Mr de Mello seeks to argue, because even if he is right on that point of law there is no prospect of it availing his client to alter the Immigration Appeal Tribunal's judgment.   
13.	I therefore would not grant permission in this case. 
14.	LORD JUSTICE KEENE: I agree.  I, too, am very doubtful about the scope of the Section 65 appeal.  I cannot accept that the Immigration Appeal Tribunal was acting perversely in finding the effect on the Gudwara's activities would not be so serious as to make removal disproportionate.  That is enough to dispose of this application.  I agree that it should be dismissed.
Order: Application dismissed