Charles v. Secretary of State for the Home Department

CHARLES v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1992] Imm AR 503

Hearing Date: 19 May 1992

19 May 1992

Index Terms:

Deportation -- overstayer -- applicant had gone underground -- deportation order on file -- applicant subsequently arrested and given custodial sentence for drug offences -- Secretary of State refused to revoke deportation order -- took into account applicant's subsequent criminal record -- whether Secretary of State was bound to issue a fresh notice of intention to deport when applicant's whereabouts became known, to preserve applicant's rights of appeal -- whether original notice validly served -- whether Secretary of State, in refusing to revoke the deportation order was entitled to take account of later criminal offences -- whether Secretary of State was bound to issue in that regard a notice of intention to deport on conducive grounds. Immigration Act 1971 ss 3(5)(a), 3(5)(b), 5, 15(5): Immigration Appeals (Notices) Regulations 1972 rr 3, 6,: Immigration Appeals (Notices) Regulations 1984 rr 3, 6.

Held:

Renewed application for judicial review, following dismissal by Kennedy J. The applicant was a citizen of St Vincent: he had become an overstayer and went to ground. The Secretary of State decided to initiate deportation proceedings against him: the notice of that intention, and subsequently the deportation order were not served on the applicant, his whereabouts being unknown. Seven years later the applicant was arrested and given a custodial sentence for drug offences. The deportation order was then served on the applicant: the Secretary of State subsequently refused to revoke the deportation order taking account, inter alia of the applicant's subsequent criminal offence. On application for judicial review it was argued that in the events which had happened, the Secretary of State should have issued a new notice of intention to deport, thereby giving the applicant a right of appeal while in the United Kingdom. Counsel argued that the original notice had not been validly served. The Secretary of State, in refusing to revoke the deportation order had erred in taking into account a subsequent criminal conviction: in that regard he should have proceeded by way of a fresh notice to deport on conducive grounds. Held 1. Following Yeboah, it was clear that the original notice of intention to deport had been validly served. 2. The Secretary of State was entitled, in considering whether to revoke the deportation order, to take into account the applicant's criminal conviction subsequent to the signing of the deportation order. 3. There was no obligation on the Secretary of State, in connection with the criminal conviction, to issue a new notice of intention to deport on conducive grounds.

Cases referred to in the Judgment:

Edward Yeboah v Secretary of State for the Home Department [1987] Imm AR 414. Mohamed Draz v Secretary of State for the Home Department [1987] Imm AR 414. R v Secretary of State for the Home Department ex parte William Edward Charles (unreported, QBD, 14 February 1992).

Counsel:

J Deve for the applicant; M Shaw for the respondent PANEL: Lloyd, Nourse, McCowan LJJ

Judgment One:

LLOYD LJ: On 24 March 1977 this appellant, Mr William Edward Charles, arrived in this country from St Vincent, West Indies, where he was born on 15 November 1956. So he was aged 20 on his arrival. He was given leave to enter for two months to visit an aunt living in Cambridge. On 5 May 1977, within the two months, he applied for further leave to remain as a student for two or two- and-a-half years. On 17 July 1981 that application was refused. Notice of refusal was sent to the appellant's Cambridge address. It was returned unopened. There can be no doubt that after that refusal the appellant was an overstayer in this country as from 14 August 1981 and was therefore liable to be deported by order of the Home Secretary under section 3(5)(a) of the Immigration Act 1971. On 28 September 1981 the Secretary of State served a notice of intention to deport. On 8 February 1982 the Secretary of State signed a deportation order. But the deportation order was never put into effect since the appellant could not be traced. It was not until June 1989, when the appellant was arrested and charged with possession of drugs, that the immigration authorities caught up with him. For the drugs offence he was sentenced to six months imprisonment. For an earlier offence of assault occasioning actual bodily harm he had been sentenced to 12 months imprisonment. The Secretary of State has power to revoke a deportation order under section 5(2) of the Act. But he has decided not to exercise that power. On 21 March 1990 he wrote to the appellant's solicitors: "The Secretary of State has carefully considered all the representations made on behalf of Mr Charles. However, in view of the seriousness of his criminal convictions the Secretary of State does not consider that the compassionate circumstances are sufficiently compelling to justify reversing his earlier decision to deport your client". The appellant now seeks judicial review of the Secretary of State's decision to deport and of the deportation order. On 18 February of this year Kennedy J dismissed the application. He now renews his application to this court. The first of the grounds on which relief was sought reads as follows: "The applicant denies any knowledge of an application for an extension to remain as a student, and was not aware of the notice of refusal to revoke or vary leave to enter or remain". In paragraph 5 of the affidavit which he swore in support of his application, he says: "I regret to say that l did not apply for an extension of my leave to remain here within the two months period". In paragraph 11 he says: "I wish to state that I did not at any time apply to the Home Office for an extension of leave to remain as a student". and in paragraph 15 he says: "In my view the earlier decision to deport me was unfair and unjust in all the circumstances of the case. The reason is that I did not apply for an extension to remain as a student". But in a further affidavit sworn on 6 May 1992 since this matter was before Kennedy J, the appellant says: "I refer to Paragraph 11 of my affidavit sworn on the 2 April 1990 the contents of which are true. With regard to the second sentence of the said affidavit" -- I think that means the second sentence of paragraph 11 -- "I have now been shown a copy of a letter dated 5 May 1977. Having examined the handwriting I wish to state that I must have made the application to the Home Office for an extension of leave to remain as a student". So the first ground on which the application was made has now gone. The abandonment of that ground does not lead one to have much confidence in the remaining grounds, or in the appellant's veracity. Mr Deve explains the appellant's change of evidence on the ground that there has been a change of solicitors. But it was the appellant's own affidavit, not that of his solicitors. The first of the remaining grounds is as follows. It is said that the notice of intention to deport was never properly served on the appellant and that the Secretary of State ought to have served a fresh notice. The time for appealing against the notice of intention to deport would then run from the date of the fresh notice. Otherwise, so Mr Deve says, the appellant has been denied his right of appeal. There is nothing in that point. The position was that in September 1981 the appellant's whereabouts were unknown. There is express provision in the Immigration Appeals (Notices) Regulations of 1984 which provides for such a case. Regulation 3 of the 1972 Regulations, which were the regulations then in force, provides as follows: "(1) Subject to the following provisions of this Regulation, where any decision or action which is appealable . . . is taken, written notice thereof shall as soon as practicable be given in accordance with the provisions of these Regulations to the person in respect of whom the decision or action is taken.

. . .

(4) It shall not be necessary for notice to be given in compliance with the provisions of paragraph (1) if the officer or authority required by paragraph (2) to give it has no knowledge of the whereabouts or place of abode of the person to whom it is to be given". It seems to me that regulation 3(4) precisely covers the facts of the present case. But if that be wrong, there is another provision upon which the learned judge relied. That is to be found in regulation 6. Regulation 6 provides: "Any notice required by Regulation 3 to be given to any person may be sent by post in a registered letter or by the recorded delivery service to his last known or usual place of abode". The Cambridge address to which the notice of intention to deport was sent was the appellant's last known address. It is said that the immigration authorities knew that it was unlikely that that notice would reach the appellant because they knew that he was no longer living at that address. But as the judge pointed out, there was nowhere else where the notice could be sent. So it is clear that the notice of intention to deport was validly served. The case is on all fours with the decision of this court in the cases of Yeboah and Draz v Secretary of State for the Home Department [1987] Imm AR 414. Then it is said that the notice of intention to deport was not dated and that that invalidates in some way the effectiveness of the notice. This is a new point which was not among the grounds on which relief was sought. It was not argued in the court below. It is not mentioned in the notice of appeal or in Mr Deve's skeleton argument. It seems to me that the point is a thoroughly bad one. It is true that the date is not immediately apparent on the copy of the notice included in our papers. But it is somewhat clearer in another copy of the notice with which we were furnished by counsel for the respondent. Obviously the notice must have been dated. Until today it has been common ground from the very start of these proceedings that the notice of intention to deport was dated 28 September 1981. That is the very decision, which the appellant is challenging in these proceedings. Next it is said that the Secretary of State has failed to take account of all the compassionate circumstances in this case, as required by paragraph 154 of HC 169. But the appellant has nowhere identified what those circumstances are. In any event there is no reason to suppose that the Secretary of State did not have them well in mind when he took his decision. The challenge on Wednesbury grounds therefore fails. Nor is there any reason, as is suggested, why the Secretary of State should not take account of the appellant's subsequent criminal convictions in the exercise of his overall discretion not to revoke the deportation order. He was not required to serve a fresh notice of intention to deport, as was argued, on conducive grounds under section 3(5)(b) of the Act. The appellant is of course fully entitled to appeal against the decision not to revoke the deportation order, but he cannot pursue that appeal while he remains within the United Kingdom: see section 15(5) of the Act. In my judgment, the judge in this case reached the right conclusion. The fact that the appellant has now changed his evidence and agrees that it was indeed he that made the application to remain as a student in May 1977, does not improve his case. I would dismiss the appeal.

Judgment Two:

NOURSE LJ: I agree, and do not wish to add anything of my own.

Judgment Three:

MCCOWAN LJ: I also agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Clifford Watts Compton, London, N7, Treasury Solicitor