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Secretary of State for the Home Department v. Croning

Publisher United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority
Author Immigration Appeal Tribunal
Publication Date 16 February 1971
Citation / Document Symbol [1972] Imm AR 51
Reference TH/495/70
Cite as Secretary of State for the Home Department v. Croning , [1972] Imm AR 51, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 16 February 1971, available at: http://www.refworld.org/docid/3ae6b62918.html [accessed 1 September 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

SECRETARY OF STATE FOR THE HOME DEPARTMENT v CRONING TH/495/70

Immigration Appeal Tribunal

[1972] Imm AR 51

Hearing Date: 16 February 1971

16 February 1971

Index Terms:

Deportation -- Country of destination -- Commonwealth citizen normally returned to country of citizenship -- Discretion of Secretary of State -- When other country may be specified -- Onus resting on appeal -- Immigration Appeals Act 1969, s 5(3) -- Cmnd 4295, para 46.

Held:

The respondent, a citizen of India aged 43, left India as a young adult and thereafter resided for about 19 years in the Middle East till he came to the United Kingdom in 1964 to join his parents, who had been resident here since 1948. In August 1966 the conditions attached to the respondent's stay were revoked. Following, however, upon his conviction in January 1969 on charges involving dishonesty he become liable to deportation (under the provisions of s 6 and s 7 of the Commonwealth Immigrants Act 1962) and the appellant duly gave directions for his removal of India.

Exercising his right of appeal under s 5(3) of the Immigration Appeals Act 1969 n1 against removal to the country specified by the appellant, the respondent contended inter alia that "he ought not to removed to India" since he had not resided there since 1946; as to his removal to any other country, he had applied for admission to the Lebanon but that country had refused to accept him. The adjudicator, relying on the words of s 5(3) of the Act of 1969, held that the respondent ought not to be sent to India and allowed his appeal on the ground that the Secretary of State (present appellant) ought to have exercised his discretion differently as to the respondent's destination. The adjudicator recognised that this decision might make the deportation order ineffective at least temporarily.

n1 Section 5(3) so far as material is set out on page 52, post.

On appeal by the Secretary of State to the Tribunal,

Held: allowing the appeal, (i) that s 5(3) of the Immigration Appeals Act 1969 must be read in conjunction with para 46 of Cmnd 4295 n2 under which a Commonwealth citizen should normally be returned to the country of his citizenship; (ii) that there was no duty on the Secretary of State to specify any other country; (iii) that it was incumbent on the citizen concerned to provide evidence that some other country of his choice would receive him, and this the respondent had failed to do; and (iv) that cogent reasons for seeking a departure from the normal arrangements for return to the country of citizenship must be supplied by the citizen concerned, and the respondent had given no compelling reasons why he should not return to India.

n2 Paragraph 46 of Cmnd 4295 is set out on page 55, post.

Counsel:

C. F. Woodiss for the appellant.

C. O. Richards of the United Kingdom Immigrants Advisory Service, for the respondent.

PANEL: Sir Derek Hilton (President), P. N. Dalton, Esq. (Vice-President), Mrs. B. Warburton

Judgment One:

THE TRIBUNAL: The appeal was against the determination of an adjudicator (Mr. E. J. T. Housden) allowing the appeal of the respondent against the directions of the appellant for the respondent's removal to Bombay.

The respondent was born in India on 5 February 1927. He left for the Middle East in 1945 or 1946 where he lived until 1964 when he came to the United Kingdom to join his parents who had been living here since 1948. On 25 August 1966 the conditions attached to his stay here were revoked and he was then told that he was free to remain in the United Kingdom. On 16 January 1969 at the Inner London Quarter Sessions the respondent was convicted on charges of theft and receiving stolen goods and sentenced to three years imprisonment. The Court made a recommendation that he should be deported.

In November 1970 the respondent was notified that the appellant had made a deportation order against him and had given directions for the removal of the respondent from the United Kingdom on the soonest possible convenient date after 6 December 1970 by air to Bombay. The respondent was also notified that he was entitled to appeal against the directions under s 5(3) of the Immigration Appeals Act 1969, on the ground that he ought not to be removed to the country or territory specified in the directions.

The respondent exercised his right of appeal as follows: -- "The right of residence in the UK accorded by the Home Office on 25/8/1966; undersigned has not resided in India since 1946 (then British subject in British India)."

On the first ground of appeal the adjudicator found that the respondent was subject to the provisions of s 6 of the Commonwealth Immigrants Act 1962, that he was not excluded by s 7 of that Act and that he was therefore prima facie liable to deportation.

On the second ground of appeal, namely the country to which the respondent was to be sent, the adjudicator in his determination referred to the fact that s 5(3) of the Immigration Appeals Act 1969 was not yet in force and acknowledged that he was dealing with this part of the appeal on a non-statutory basis. In his determination he stated: --

"I assume that in permitting this 'non-statutory' type of appeal, the Secretary of State has agreed to the application to the appeal of the principle contained in s 5(3), the pertinent part of which reads: --

'... where directions are given for the removal of a person from the United Kingdom he may appeal to an adjudicator against the giving of the directions on the ground that he ought not to be removed to the country or territory to which he would be removed if the directions were carried out.'

Under this section the only subject for consideration by the adjudicator is whether the appellant 'ought not to be removed to the country or territory to which he would be removed if the directions were carried out'. What Parliament probably had in mind when it enacted this legislation (and what the Secretary of State appears to think this section means, if one considers his remarks at para 35 of Cmnd 4295) is that the appellant is to be given a choice; he may say, for example, 'I do not want to go to India; I want to go to Australia' and will then give the adjudicator cogent reasons for this choice. Whatever the intention of the Legislature, the natural meaning of the words of s 5(3) seems to me to have a different effect. There is no problem if the appellant gives an alternative choice of destination. The adjudicator can then decide which of the two countries should receive the appellant. But suppose the appellant refuses (or is unable) to make a choice, but is nevertheless able to show to the adjudicator that he ought not to be deported to the specified country. In that case, it seems to me that the adjudicator can properly rule that the appellant ought not to be deported to the country in question, and there can then be only one logical alternative (other than that of casting the person concerned adrift on the high seas): to permit him to remain in the United Kingdom unless and until an alternative country can be found to receive him. There is nothing whatsoever in the Immigration Appeals Act, so far as I can ascertain, which is inconsistent with this result. If I understand the rules of construction correctly, where the words of a statute are plan (as they appear to me to be in this case) one cannot go outside the statute and say that the draftsmen made a mistake, that this is not what the Legislature intended. The words of the statute must stand on their own, without external aids to construction or glosses on their meaning."

Later on in his determination the adjudicator goes on to say: --

"The appellant has been in the United Kingdom for only six and a half years (two of which have been spent in prison), whereas he says that he has spent some nineteen years in the Middle East. This fact may have influenced the Secretary of State in deciding that there were insufficient grounds for allowing the appellant to stay in the United Kingdom. The logical solution in this case would be for the appellant to be deported to some Middle Eastern country with which he has had a long and recent connection; but the only country to which he has applied for admission -- the Lebanon -- has refused him entry. It seems to me that in deporting the appellant to India, which will accept him because it has no choice, the Secretary of State is making use of a legal technicality. It is incontestable, in law, that the Appellant is a citizen of the Republic of India, by virtue of being born there, but it seems to me that for all practical purposes his connection with that country ends there. I do not consider that he ought to be sent to India.

I therefore allow this appeal on the grounds that the Secretary of State ought to have exercised his discretion differently as to the destination to which he intends sending this appellant. I do not say that the appellant ought not to be deported (although this may be the effect, temporary or permanent, of my decision) for this is outside my judicial competence and I am aware that I am not in possession of the full facts about the appellant's criminal record and so on. What I do say is that the appellant ought not to be sent to India."

Leave to appeal to the Tribunal was granted, the grounds of the appellant's appeal being as follows: -- "1. No evidence has been produced that Mr. Croning would be acceptable to any other country than India on his deportation from the United Kingdom. 2. He is the holder of an Indian passport and a citizen of India."

On behalf of the appellant Mr. Woodiss submitted:

(1) that the respondent's grounds of appeal were in effect against deportation. He had stressed his United Kingdom upbringing and he had stated in evidence that he could name several other countries to which he could be deported but that it was not a question of second choices. If he was to make anything of himself it would have to be in the United Kingdom.

(2) that the respondent had left India before partition and had only returned there once since but he was the holder of a valid Indian passport up to 1967 when it lapsed and he had travelled under that passport to many countries.

(3) that s 5(3) of the Immigration Appeals Act 1969 merely defined the right of appeal as to destination and that the determination of such an appeal was governed by s 8 of the Act. This section reads as follows: --

"8 (1) Subject to s 2(2) and 5(2) of this Act, an adjudicator who hears an appeal under this Part of this Act --

(a) shall allow the appeal if he considers --

(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or

(ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and

(b) in any other case, shall dismiss the appeal."

(4) that the appeal was governed by the Commonwealth Immigrants Act 1962, Sch 2, para 1 (as to the removal of persons subject to deportation orders) and by para 46 of Cmnd 4295 (Commonwealth Citizens; Control after Entry -- Immigration Rules).

(5) that there was no discretion in such a case and that the appeal should be allowed if the law and the immigration rules had been complied with.

On behalf of the respondent Mr. Richards made the following submissions: --

(1) Under para 46 of Cmnd 4295 the duty to specify the country to which a person was to be deported lay on the appellant. The respondent had merely to show that that country would receive him.

(2) The respondent's passports had shown that the United Kingdom was his country of residence.

(3) If evidence was produced that the respondent would be accepted by a country other than India the appellant was not bound to direct that he should be sent to that country, and the fact that India was bound to accept the respondent was not good enough.

(4) The respondent's Indian passport had expired in 1967 and he had not sought to renew it as his conditions of admission to the United Kingdom had been revoked in 1966.

(5) The appellant ought not to rely on the birth of the respondent in India in order to deport him to that country. The decision of the appellant could be negated even if that step should abrogate the deportation of the respondent. It was up to Parliament to amend the law if this result was not in accordance with the intentions of the legislature as embodied in the provisions of the Immigration Appeals Act 1969.

Our findings are as follows: --

(1) Section 5(3) of the Immigration Appeals Act 1969 defines the right of appeal as to the country of destination in case where directions are given for the removal of a person from the United Kingdom.

(2) Paragraph 46 of Cmnd 4295 sets out the procedure to be followed in determining the country to which such a person is to be sent. This paragraph reads as follows: --

"46. Under paragraph 1 of Schedule 2 to the 1962 Act, a Commonwealth citizen against whom a deportation order has been made may be removed from the United Kingdom to a country of which he is a citizen, or a country or territory to which there is reason to believe that he will be admitted. The power conferred by this paragraph should normally be exercised so as to secure the return of a Commonwealth citizen to the country of which he is a citizen or, if he is a citizen of the United Kingdom and Colonies, to the territory to which he belongs. Another country or territory may be specified if the Commonweath citizen can show that it will receive him, but in considering any departure from the normal arrangements regard should be had to the public interest generally, and to any additional expense that may fall on public funds. The Commonwealth citizen has a right of appeal on the question of the country or territory to which he is to be removed and will be notified of this right."

(3) It is incumbent on an appellant in such a case to provide evidence that the country of his choice will receive him. Under para 46 of Cmnd 4295 there is no duty laid upon the Secretary of State to specify any country other than the country of which such appellant is a citizen.

(4) In this case the respondent has furnished no evidence that any country other than India will receive him. In giving evidence before the adjudicator he stated that between 1945 and 1964 he was in various parts of the Middle East, in particular the Persian Gulf and more latterly Lebanon. Before the hearing an application had been made to the Lebanese Embassy for the respondent to be granted a visa for Lebanon. By letter dated 17 December 1970 the Lebanese Embassy stated that the application had been unsuccessful.

(5) The adjudicator, in arriving at his determination, considered fully the effect of s 5(3) of the Immigration Appeals Act 1969. He did not appear to take into account the provisions of para 46 of Cmnd 4295 which must be read in conjunction with s 5(3).

(6) In order to succeed in an appeal under s 5(3) of the Immigration Appeals Act, against a deportation order for his return to the country of which he is a citizen, an appellant must furnish cogent reasons why he should not be removed to such country, and the respondent in this case has not given compelling reasons why he should not go to India.

(7) This appeal was allowed by the adjudicator on the grounds that the Secretary of State should have exercised his discretion differently as to the country to which the respondent should be sent, but if the Secretary of State had in the exercise of his discretion named another country, say the Lebanon, it would, in effect, have meant that the Secretary of State was ensuring that the deportation order he had made would be inoperative since without the consent of the named country to receive the respondent, the respondent would be refused admittance and returned to this country.

(8) In giving directions that the respondent should be deported to Bombay the action of the appellant was in accordance with the law and the immigration rules applicable to the case.

DISPOSITION:

Appeal allowed.


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