Last Updated: Friday, 29 August 2014, 14:18 GMT

In Re Amanullah Khan

Publisher United Kingdom: High Court (England and Wales)
Author High Court (Queen's Bench Division)
Publication Date 3 October 1986
Citation / Document Symbol [1986] Imm AR 485
Cite as In Re Amanullah Khan, [1986] Imm AR 485, United Kingdom: High Court (England and Wales), 3 October 1986, available at: http://www.refworld.org/docid/3ae6b62a14.html [accessed 30 August 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.

IN RE AMANULLAH KHAN

QUEEN'S BENCH DIVISION

[1986] Imm AR 485

Hearing Date: 3 October 1986

3 October 1986

Index Terms:

Deportation -- on grounds of national security -- whether the Secretary of State was empowered to delegate the completion of the notice to detain the applicant -- whether likewise the completion of the notice of intention to deport could be delegated to an official acting on his behalf. Immigration Act 1971 ss 3(5)(b), 5(1), 6, 13(5), 14(3), 15(1), 15(4), Schedule 3 para 2(2): Immigration Appeals (Notices) Regulations 1984 r 3.

Delegated Powers -- the distinctions in the Immigration Act 1971 draws between those matters which must be dealt with by the Secretary of State himself and those which by inference may be delegated by him to others. Immigration Act 1971 ss 13(5), 14(3), 15(4).

Held:

The applicant for habeas corpus was a citizen of Pakistan who was charged with, but in two trials subsequently acquitted of offences relating to the possession of explosives. During the trials the Secretary of State took a decision to initiate deportation proceedings against him, pursuant to s 3(5)(b) of the Immigration Act 1971, on the basis that he should be deported on grounds of national security. The Secretary of State also decided that if the applicant were acquitted in the criminal trials, he should be detained pending deportation.

Appropriate notices both of the intention to deport and to detain the applicant were prepared before the jury's verdict was announced in the second trial. They were, however, not completed as to date and time; that was done immediately after the jury's verdict was known, and done by a police officer at the Court, on the instruction of a Home Office official. On application for habeas Corpus it was contended that the Secretary of State had no power so to delegate the completion of notices of the nature of those under review.

Held:

The Immigration Act 1971 specified certain matters which had to be effected by the Secretary of State in person. The actions challenged in this case were not within the ambit of those specified matter. Adopting the Carltona principle, there was nothing improper about the way notices had been completed.

2. Only when the notices had been completed by being timed and dated, did the requirements of the Immigration Appeals (Notices) Regulations 1984 come into play. The notices were therefore served as soon as practicable. Even if it were held that the Notices Regulations came into play at an earlier date when the Secretary of State made his tentative decision (ie before he knew there was an acquittal) in the circumstances the notices, when served, were served as soon as practicable.

Cases referred to in the Judgment:

Carlton Ltd v Commissioner for works (1943) 2 All ER 560

Counsel:

Lord Gifford QC and H Spooner for the applicant

D Pannick for the respondent

PANEL: Simon Brown J

Judgment One:

SIMON BROWN J: The applicant was born in Kashmir in 1934. He is a citizen of Pakistan. He came first to the United Kingdom in 1976, and was granted indefinite leave to remain in April 1982. He is the Chairman and leading officer of the Jammu Kashmir Liberation Front.

On 5 September 1985, he was arrested and charged with two alternative offences, respectively possessing explosive substances with intent to endanger life, and possessing explosive substances in suspicious circumstances.

On 23 July 1986, he was acquitted on the first count. The jury disagreed on the second count, and he was remanded in custody for the re-trial of that second count. On the following day, 24 July the Secretary of State, under the impression that the first trial was still continuing, decided that the applicant should be served with a notice of intention to deport him on grounds of national security and should be detained were he either acquitted of both charges or given a non-custodial sentence. Apparently, although it is not central to my decision, what had happened was that the papers had been submitted to the Secretary of State whilst that trial was still continuing, and he was unaware of the fact that it had concluded in the manner I have indicated before he took his decision.

The re-trial was to commence on 15 September. During the weekend of 13/14 September, the Secretary of State again considered the matter. On this occasion he signed an authority to detain the applicant which would take effect if and when a notice of intention to deport him on grounds of national security was served upon him. Such a notice was to be prepared. The trial concluded on 19 September. The applicant was acquitted by the jury on the remaining count.

During the course of that afternoon three telephone calls were made. First, at about 3.30 pm whilst the jury were deliberating and their verdict was being awaited, the applicant's solicitor telephone the Home Office and spoke to Mrs Underhill the senior executive officer essentially dealing with this case. The applicant's solicitor said that she had heard that a deportation offer had been signed and was enquiring about the position. Mrs Underhill replied that no such order had been signed and that the applicant's immigration position would be reviewed in the light of the outcome of the trial. The jury acquitted at about 4.20pm and within moments Mrs Underhill was telephoned, as it had been previously arranged in these circumstances she would be, by a Detective Inspector at court. In accordance with what had been agreed by the Secretary of State the previous weekend, Mrs Underhill instructed the Detective Inspector to date and time both the notice of intention to deport and the authority to detain the applicant and to serve both documents upon him. Both those documents, untimed and undated, had previously been collected by the police authority so as to be available at court.

The third and final telephone call occurred at about 5.30 pm when the applicant's solicitor again telephone Mrs Underhill. She expressed suprise at the service of the documents upon her client, and asked for confirmation that the papers had been finalised since the earlier telphone call. Mrs Underhill duly confirmed that, indicating that the documents had been timed and dated since the trial. In fact, as the copy before me shows, the authority to detain is timed at 23 per minutes past four, just three minutes after the jury's acquittal.

By this motion, the applicant seeks habeas corpus on the ground that the authority for his detention was not lawfully given. The statutory framework within which this motion arises can be relatively shortly stated. By section 3(5)(b) of the Immigration Act 1971, it is provided that a non-patrial such as this applicant:

"shall be liable to deportation from the United Kingdom --. . . (b) if the Secretary of State deems his deportation to be conducive to the public good . . . "

By section 5(1), it is provided:

"Where a person under section 3(5) . . . liable to deportation then. . .the Secretary of State may make a deportation order against him . . . "

By section 15(1) it is provided that subject to other provisions:

"a person may appeal to an adjudicator against -- (a) a decision of the Secretary of State to make a deportation order against him by virtue of section 3(5) above . . . "

Perhaps more materially, by section 15(3) it is provided that:

"a person shall not be entitled to appeal against a decision to make a deportation order against him if the ground of the decision was that his deportation is conducive to the public good as being in the interests of national security . . . "

By the Immigration Appeals (Notices) Regulation 1984, made pursuant to section 18 of the Act, it is provided by paragraph 3(1) that where any decision is taken which:

"would be appealable but for the ground on which it is taken" -- (that plainly includes a decision to give notice of intention to deport on grounds of national security under section 3(5)(b)) -- "written notice of such a decision shall as soon as practicable be given to the person affected."

The final statutory provision to which I should refer is paragraph 2(2) of the third schedule to the Act, which provides:

"Where notice has been given to a person in accordance with regulations under section 18 of this Act of a decision to make a deportation order against him .

. . " -- that is notice such as was here given under paragraph 3 of the 1984 (Notices) Regulations --" . . . and he is neither detained in pursuance of the sentence or order of a court nor for the time being relased on bail by a court power so to release him, he may be detained under the authority of the Secretary of State pending the making of the deportation order."

The essential argument advanced by Lord Gifford on the applicant's behalf is that the authority here, signed by the Secretary of State in person pursuant to paragraph 2(2) of the third Schedule, is not valid because it is not lawful for the Secretary of State to make a conditional decision thereafter to be carried into effect by an official, here Mrs Underhill, in certain eventualities, here the final acquittal of the applicant, Lord Gifford says, in short, that the Secretary of State cannot sign a blank order and leave it to an officer to carry into effect.

The facts of the matter I have sufficiently related. Although there appears some dispute upon the affidavits as to the precise content of the telephone discussions between the applicant's solicitor and Mrs Underhill, that conflict is in my judgment immaterial. Mrs Underhill's account is to my mind the more likely to be correct for this reason above all that the applicant's solicitor, as her second affidavit expressly recognised, initially rather misunderstood the precise statutory framework. In particular, she failed to appreciate the very real distinction between what I may call the section 3(5)(b) notice of intention to deport, and a subsequent deportation order. Indeed, no such deportation order has yet been made nor will it be made until the applicant has pursued, as he has intimated he will, the extra-statutory procedure by which he may question the propriety of finally deporting him. But in any event, the validity or otherwise of the authority is, in my judgment, clearly to be determined not by reference to what Mrs Underhill may or may not have told the applicant's solicitor, but rather by the essential facts which appear to me entirely plain.

Essentially, it seems beyond question that the Secretary of State himself took the deision that, were the applicant finally to be acquitted or, indeed, released because no custodial sentence was imposed, he should, in the interest of national security, forthwith be detained pursuant to a notice of intention to deport him given on that ground. That decision was taken first by the Secretary of State during 24 July, and for good measure it was confirmed by the Secretary of State during the weekend of 13/14 September when he actually signed the authority for detention and agreed to the arrangement for its service upon the applicant together with the notice if the relevant circumstances arose.

Before I turn to consider the argument I should clear the ground by making one thing clear. It has never been suggested that the Secretary of State did not have at all relevant times, the material entitling him to reach a decision both to deport, and in the meantime detain, the applicant on national security grounds. Lord Gifford has, in my judgment, rightly recognised that there is no inconsistency between the Secretary of State's decision in the matter and the jury's acquittal of the applicant. If would plainly be disingenuous, not to say mischievious, to contend for any such inconsistency. One only has to reflect upon the manifestly different standards of proof applied respectively by a jury required in the interests of national security. And the Secretary of State may well also have additional information not available to the jury.

Lord Gifford's submission is that the only lawful way of achieving what so evidently the Secretary of State desired, was either for the Secretary of

State personally to have taken the telephone call from the Detective Inspector instantly following the applicant's acquittal, and for him thus personally to have given the instruction immediately to date, time and serve the documents, or alternatively for the Secretary of State to have taken and notified a final decision to give a section 3(5)(b) notice before the conclusion of the applicant's trial.

As for the latter suggestion, it seems to me wholly inappropriate for the Secretary of State to reach and notify a final decision to deport under section 3(5)(b) whilst there remains a real possibility that the prospective deportee will (a) have to serve a term of imprisonment (perhaps a very long one) and/or (b) be recommended for deportation so as to open up the section 6 route.

If, contends Lord Gifford, the decision taken on 24 July or 13/14 September (it matters not which) is to be regarded as a final decision by the Secretary of State, then it is apparent that paragraph 3 of the (Notices) Regulations was not complied with because written notice of it was not given as soon as practicable. If, however, as is Lord Gifford's primary submission that decision was to be regarded as conditional or tentative only, then, contends Lord Gifford, it could not properly be converted into a final decision by Mrs Underhill or, indeed by anybody else other than the Secretary of State himself, second he relies upon the express authority which Mrs Underhill had received from the Secretary of State by at least the weekend of 13/14 September.

Alternatively, contends Mr Pannick, if the original decision is to be regarded not as tentative but as final, then, in any event, the failure to issue the written notice under the Notice Regulations is not to be regarded as invalidating the authority to detain, first because the Notices Regulations in this respect at least should be judged to be directory only, and second because in any event there is no prejudice to the applicant consequent upon what would upon this hypothesis be late notice.

In my judgment, the decision of 24 July, alternatively 13/14 September, is indeed, as both counsel primarily contend, to be regarded as preliminary conditional, or tentative, call it what one will, and not as a final decision. Thus the Notices Regulations did not at that stage bite. I agree moreover with Mr Pannick that that argument was properly converted into a final decision by Mrs Underhill. It seems to me that Mr Pannick is correct in both of his arguments, namely whether one looks at this matter from the standpoint of the Carltona doctrine on the basis of express authority. I recognise of course that the Carltona doctrine is subject to the qualification that certain cases plainly require the Secretary of State's own personal individual consideration of the matter. But even assuming this was such a case, personal consideration was indeed given to it. I see no reason, why at the final stage of the telephone call from the court to the Home Office, the Secretary of State had again give the matter his personal attention. That seems to me to be wholly unnecessary and indeed likely to have been impracticable.

I note in this context the clear contra-distinction within the Immigration Act 1971n between certain decisions or orders that plainly do have to be made personally by the Secretary of State rather than somebody acting under his authority, and other decisions where the Carltona doctrine would apply. Sections 13(5), 14(3) and 15(4) all refer expressly to decisions of "the Secretary of State (and not by a person acting under his authority) . . . " This is not a qualification imposed upon the relevant power exercised in this case.

But I repeat, even if the Carltona doctrine does not apply to this case, in the event, as I have already sufficiently indicated, Mrs Underhill most plainly had the clearest and most explicit authority of the Secretary of State himself to do precisely that which in fact she did do. Again, therefore, in my judgment, it is impossible to regard the decision as vitiated on account of the role that she played.

Although it is strictly unnecessary to reach a conclusion upon the alternative premise that the original decision was itself to be regarded as a final decision, I may say I am strongly of the view that a failure to give notice as soon as practicable should not, in the circumstances, of this case, be held to vitiate the detention authority.

I conclude only with this observation. As I have already indicated, the final chapter in this story has yet to be written. It cannot be written by a final deportation order without giving effect to the safeguard which remains available to this applicant, namely his right, as notified by the letter giving him notice of intention to deport, to make representations before an independent advisory panel. That is his protection against any abuse of power.

For the reasons I have given, this motion fails and must be dismissed.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Christian Fisher & Co, London, WC2; Treasury Solicitor.

Copyright notice: Crown Copyright

Search Refworld