Jordan and Another v. Secretary of State for the Home Department
JORDAN AND ANOTHER v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT TH/2501/71
Immigration Appeal Tribunal
 Imm AR 201
Hearing Date: 17 February 1972
17 February 1972
Deportation -- Consideration of the merits -- Public interest balanced against compassionate circumstances -- Indian citizens of United Kingdom descent in breach of conditions of admission because of wish to settle -- Discretionary power exercised in manner "consistent and fair between one person and another" -- Immigration Appeals Act 1969, s 16 -- Cmnd 4295, paras 36, 41.
Held: The appellant citizens of India, brothers born in 1947 and 1949, were admitted to the United Kingdom in November 1967 as students for 12 months. In April 1968 they applied for a revocation of their conditions of admission on the ground that their parents in India were of English and Scottish descent with a long tradition of service in British India and that they had other relatives in this country. Their application was refused in July 1968. In December 1968 an application was made on their behalf for an extension of stay as students; this was refused on its merits, but they were granted an extension until 30 June 1969 to enable them to make arrangements to leave the country. Further unsuccessful representations followed, rlesulting in a further permitted extension of stay till 29 October 1970, again to enable them to make arrangements to leave. They did not exercise their right of appeal on that occasion nor did they leave the country; and after yet further unsuccessful representations had been made the Secretary of State in August 1971 decided to make deportation orders against them under s 16 of the Immigration Appeals Act 1969 for their failure to comply with their conditions of admission. They appealed under s 4(1)(a) of the Immigration Appeals Act 1969. The adjudicator dismissed their appeals because on the facts before him concerning, inter alia, the appellants' family background, upbringing and prospects in India (set out in passage quoted from adjudicator's determination, on pp 203-4, post) he did not consider that they merited exceptional treatment on compassionate grounds. On their further appeal to the Tribunal it was contended that the discretion conferred by paras 36 and 41 of Cmnd 4295 n1 should have been exercised differently in all the relevant circumstances, and/or because the public interest in making deportation orders was outweighed here by the compassionate circumstances. n1 Paragraphs 36 and 41 of Cmnd 4295 are set out on page 206, post. Held: The appeals were governed by the provisions of paras 36 and 41 of Cmnd 4295 n1 and would be dismissed, because -- n1 Paragraphs 36 and 41 of Cmnd 4295 are set out on page 206, post. (i) The appellants had since the expiration of their permitted stay in June 1969 failed to bring themselves within the immigration rules: they had made no new application to stay on any ground, and their subsequent extension of stay until October 1970 was granted for the purpose only of regularising the position they had themselves brought about; (ii) In weighing "the public interest" against "any compassionate circumstances" the aim (as stated in para 36 of Cmnd 4295) was an exercise of the power of deportation that was "consistent and fair as between one person and another". Were the appellants to be permitted to remain in this country such action would hardly be "consistent and fair" as between them and the many persons overseas subject to United Kingdom immigration control whose circumstances and background were similar to theirs.
Counsel: Michael Beloff for the appellants. C. F. Woodiss for the respondent. PANEL: Sir Derek Hilton (President), Sir George Whitteridge, T. Neil Esq.
Judgment One: THE TRIBUNAL: The appeal was against the determination of an adjudicator (Mr W. Phillips) dismissing the appeal of the appellants against the decision of the respondent to make orders under s 16 of Immigration Appeals Act 1969 requiring them to leave the United Kingdom and prohibiting them from returning while the orders remained in force and against the proposal of the respondent to give directions for their removal to India. The appellants, Clifford O'Neil Jordan and Errol Anthony Jordan, who are brothers and who were born on 3 April 1947 and 11 November 1949 respectively, are citizens of India. They were admitted to the United Kingdom on 4 November 1967 as students, being in possession of entry certificates issued to them for that purpose in Calcutta, on condition that they did not remain longer than twelve months. In April 1968 the appellants applied for the revocation of their conditions of admission as they wished to settle in this country because their parents in India were descended from English and Scottish families with a long tradition of service in British India and they had a number of relatives living in the United Kingdom. This application was refused in July 1968 as the appellants were not eligible to have their conditions of admission revoked. Unsuccessful representations were made against this decision by Miss A. J. West, who had made hereself responsible for accommodating and maintaining the appellants while they were in this country. On 19 December 1968 Miss West applied for an extension of the appellants' stay as students. After enquiries were made by the Home Office that application was refused on the grounds that the appellants were not then qualified to remain here as students and they were granted extensions of stay until 30 June 1969 to enable them to make arrangements to leave the country. Representations were made by Miss West against this decision, full details of which are contained in the Home Office statement. During this period the appellants remained in the United Kingdom and on 29 September 1970 Miss West was told that the appellants were not exempt from United Kingdom immigration control nor were they eligible to register as citizens of the United Kingdom and Colonies. The appellants were granted further extensions of their permitted stay to 29 October 1970 to enable them to make arrangements to leave the country. They were informed of their right of appeal but they did not exercise this right. Miss West then made further unsuccessful representations through her Member of Parliament. As the appellants had remained in this country the respondent decided on 13 August 1971, in accordance with s 16 of the Immigration Appeals Act 1969 and para 41 of Cmnd 4295, to make deportation orders against them. The appellants appealed against this decision. At the hearing of the appeal before the adjudicator evidence was given by the appellants and by Miss West. In a very full determination dismissing the appeal the adjudicator set out all the evidence before him and concluded as follows: -- "This appeal is against the decision of the Secretary of State to make deportation orders, under s 16 of the Immigration Appeals Act 1969, against the appellants for failure to comply with their conditions of admission. The Rules provide that deportation will normally be the proper course where a Commonwealth citizen has persistently failed to comply with a condition of his admission. This is clearly the position here, and Miss West's attitude to the appellants' predicament is that they are now adults and have a moral right to live in this country. The Rules also provide that full account will be taken of all relevant circumstances before any decision to make a deportation order is taken, and that the public interest will be balanced against any compassionate circumstances of the case. It is relevant that the appellants are of British descent, from families with a long record of service in British India, that their upbringing reflects their British descent, and that English is their mother tongue. I must take into account the fact that they have numbers of close relatives in the United Kingdom, that they have virtually been adopted by Miss West, and that they have lived here since the end of 1967. They have adapted themselves successfully, as might be expected, to live in England and they are both in useful employment; Clifford working as a pupil nurse and Errol as a trainee in metalcraft. The Anglo-Indian community in India is small and declining in numbers since may of its members are now emigrating to Australia. The appellants are said to have poor employment prospects in India; before they came to this country in 1967 Clifford was working as a telephone operator earning @ 12 a month, and Errol was following an engineering course at a technical school. Against this, it has to be said that the appellants' parents have their permanent home in India where the appellants were born and where they lived until 4 years ago when they were 20 and 17 years old respectively. They are unmarried and have no dependants here. Apart from their remote descent, all the appellants' links with the United Kingdom are recent and at no time have they been led by the Home Office to expect that they would be permitted to make their permanent home in this country. Neither, I think, has their absence from India been so long, nor their employment here so dissimilar, as to make it difficult for them to resume the life they were accustomed to live there. Miss West told me that the reason she has made this sustained effort is that she believes that there are the very strongest grounds for the exercise of discretion in the appellants' favour. She recalled that Lord Windlesham had, in his letter of the 2 April 1971 to Mr Hugh Dykes, quoted her own reference to this 'very unusual case, probably unique'. Miss West has been personally involved in this case from the outset and she has represented the appellants' case, both in correspondence with the Home Office and before me, with great tenacity. I do not doubt that the appellants find life in this country more congenial, and their employment more remunerative, than in India but these are not sufficient reasons for allowing them to stay here. I am also sure that ties of affection and duty have developed between Miss West and the appellants, but the appellants' parents are still in India, they are of full age, and I do not think that the emotional disturbance caused by their having to leave England would be such as to merit exceptional treatment on compassionate grounds. I have decided that the appeals of both appellants must be dismissed." The adjudicator granted leave to appeal to the Tribunal. The grounds of appeal of the appellants are as follows: -- "(i) The adjudicator's finding that the appellants had persistently failed to comply with their conditions of admission was against the weight of the evidence in view of the fact that since in or about April 1968 their position had been under constant review by the Home Office. (ii) The adjudicator misdirected himself by failing to consider the fact of eligibility of the appellants' parents to register as British nationals pursuant to the British Nationality Acts 1948 and 1958 as a relevant circumstance to be taken into account pursuant to Cmnd 4295 para 41. (iii) The adjudicator failed to give sufficient weight to his finding that the Anglo-Indian community in India is small and declining in numbers as a compassionate circumstance in the appellants' case within the meaning of Cmnd 4295 paragraph 36. (iv) That on the evidence before him and/or his findings of fact thereon the adjudicator should have found that the decision of the Secretary of State to make deportation orders in respect of the appellants (which involved the exercise of a discretion pursuant to Cmnd 4295 paragraphs 36 and 41) should have been exercised differently in all the relevant circumstances of the case and/or because the public interest in making deportation orders was outweighed by the compassionate circumstances of their cases." At the hearing of the appeal before us we heard argument and submissions on behalf of both parties. In addressing us Mr Beloff said that the basis of the appeal was that the discretion conferred by paragraphs 36 and 41 of Cmnd 4295 n2 should have been exercised differently in this case. The facts were basically accepted. On the grounds of appeal Mr Beloff made the following submissions: -- (a) On ground (i): The first sentence of para 41 of Cmnd 4295, in referring to a persistent failure to comply with conditions of admission, raised a presumption which an applicant had to rebut. However, the last sentence of the paragraph, which requird full account to be taken of all relevant circumstances before any decision were come to to make a deportation order, showed that the adjudicator was wrong in saying that this was a clear case of persistent failure because at all relevant times Miss West was making representations on the appellants' behalf. There had therefore been no deliberate flouting of the rules during the continued stay of the appellants as the case had been, in a way, sub judice. This had been accepted by the Home Office by the grant of a further extension of stay to 29 October 1970. n2 Paragraphs 36 and 41 of Cmnd 4295 are set out on page 206, post. (b) On grounds (iii) & (iv): Having regard to the adjudicator's findings of fact the respondent should have come to a different decision. The adjudicator found many factors in favour of the appellants, including the long service of their family in India, their upbringing in an English way of life, the length of time they had been in the United Kingdom where they had been virtually adopted by Miss West as confirmed by the letter from their parents (put in as additional evidence) and the difficulties they would experience in returning to India as members of the Anglo-Indian community there. In considering the factors against the appellants the adjudicator should not have found that there was a permanent home for the appellants in India. (c) On ground (ii): The Tribunal should consider as a factor the position of the parents of the appellants. They had a close connection with the United Kingdom and in his view had they chosen to do so at the appropriate time they could have registered as citizens of the United Kingdom and Colonies. The fact that they had not done so was no fault of the appellants. (We accepted as additional evidence a letter from the British High Commission to the parents which in Mr Beloff's submission showed that the latter came close to registration although they did not do so). In reply Mr Woodiss submitted: -- (a) The case had had the fullest consideration all through and now there was an appeal against the adjudicator's very full determination. (b) There must be a distinction between enquiries about and representations against a decision and a new application. (c) The appellants were requested to leave the country in 1969. The extension of stay granted until October 1970 was merely to regularise their position and for no other purpose. (d) A time must come when a decision had to be acted upon. The appellants had not qualified to remain under the immigration regulations since some time in 1968. Since then no new application had been made by them and they were still here in October 1970. (e) So far as the position of the appellants' parents was concerned one had to deal with the facts as they were. (f) He was not competent to comment on the Anglo-Indian community but he would point out that there was no evidence before the Tribunal of any likely discrimination against the appellants if they returned to India. Their parents appeared to be leading a fairly normal life there. If the appellants were to return to India it appeared that their position would be no better or no worse than that of anyone of comparable education. (g) The adjudicator had made a generous evaluation of all the circumstances of this case in weighing compassionate circumstances against the public interest. The appellants, who are subject to United Kingdom immigration control, have since June 1969, when their permitted stay expired, failed to bring themselves within the immigration regulations. Since then they have remained in this country, during which time persistent representations have been made on their behalf to enable them to remain in this country. We accept that their stay was later extended until October 1970 for the purpose only of regularising the position which the appellants themselves had brought about. Since June 1969 no new application to be permitted to stay in this country on any ground has been made by the appellants. It was not until August 1971 that the respondent decided, as the appellants had failed to leave this country voluntarily, to make deportation orders against them. In our opinion the appellants have received very generous treatment during the period they have remained in the United Kingdom. This case is governed by the provisions of paras 36 and 41 of Cmnd 4295 which read as follows: -- "36. In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. 41. Whether or not a Commonwealth citizen has been convicted of breach of conditions of admission, deportation will normally be the proper course where he has persistently failed to comply with such a condition; so also where a Commonwealth citizen has been recommended for deportation on conviction of an offence against section 4(1)(a) (entering the United Kingdom while a refusal of admission is in force) or 4A (entering the United Kingdom without examination by an immigration officer) of the 1962 Act. But full account is to be taken of all the relevant circumstances before any decision to make a deportation order is taken." In weighing "the public interest" against any compassionate circumstances the aim, under the regulations, is "an exercise of the power of deportation that is consistent and fair as between one person and another". Were the appellants to be permitted to remain in this country for the reasons which have been put forward by them and on their behalf and which are fully stated in the evidence and the adjudicator's determination it could hardly be said that such action would be "consistent and fair" as between them and the many persons overseas subject to United Kingdom immigration control whose circumstances and background are similar to those of the appellants. We have considered most carefully all the factors put forward on behalf of the appellants both to us and to the adjudicator. In our opinion the adjudicator came to a correct decision and we agree with his full and fair determination.
DISPOSITION: Appeals dismissed.
SOLICITORS: Lawford & Co.
Copyright notice: Crown Copyright