Singh (Pargan) v. Secretary of State for the Home Department

SINGH (PARGAN) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

HOUSE OF LORDS

[1992] 4 All ER 673, [1992] 1 WLR 1052, [1993] Imm AR 112

Hearing Date: 1 July, 15 October 1992

15 October 1992

Index Terms:

Immigration -- Deportation -- Notice -- Notice of decision to deport petitioner sent to last known address -- Notice returned undelivered -- Subsequent deportation order -- Whether notice properly served at "last known place of abode" -- Validity of regulation dispensing with written notice of decision to deport -- Immigration Act 1971 (c 77), s 18(1) -- Immigration Appeals (Notices) Regulations 1984 (SI 1984 No 2040), regs 3(1)(4), 6

Held:

The petitioner, who had been granted leave to enter the United Kingdom from India for three months, remained after the expiry of that period without having applied for an extension. In December 1985, the Secretary of State decided to make a deportation order under section 3(5) of the Immigration Act 1971 and sent notice of his decision to the petitioner's last known address and to his sister's home. The first notice was returned undelivered. On 13 December 1986, the Secretary of State made a deportation order, and in early 1989 the petitioner was found and arrested. He petitioned for judicial review on the grounds, inter alia, that notice of the decision to deport him had not been served on him and that regulation 3(4) of the Immigration Appeals (Notices) Regulations 1984, allowing the Secretary of State to dispense with notice where the petitioner's whereabouts or place of abode was not known, was ultra vires section 18(1) of the Act of 1971. The Lord Ordinary refused his petition, and the Second Division of the Inner House of the Court of Session refused his reclaiming motion. On appeal by the petitioner:- Held, dismissing the appeal, that by virtue of section 18(1) of the Immigration Act 1971 the Secretary of State was under a duty to make regulations to enable persons with rights of appeal to exercise them effectively; but that the section did not require him to provide for the giving of notice of his intention to make a deportation order in circumstances where there was no reasonable prospect of such notice being effective, nor did it imply that a deportation order could not be made unless notice had been given, and, therefore, regulation 3(4) of the Immigration Appeals (Notices) Regulations 1984 was intra vires section 18(1) of the Act of 1971; that a person's "last known place of abode" within regulation 6(a) of the Regulations of 1984 did not have to be one at which there was reason to suppose that he might still be abiding; and that, accordingly, the Secretary of State had acted reasonably in compliance with the requirements of regulation 6 in sending notice of his intention to make a deportation order to the petitioner's last known place of abode. Reg v Secretary of State for the Home Department, Ex parte Makhan Singh [1977] Imm AR 56, 66n, CA approved. Decision of the Second Division of the Inner House of the Court of Session affirmed.

Cases referred to in the Judgment:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680, CA. Reg v Immigration Appeal Tribunal, Ex parte Ekrem Mehmet [1977] 1 WLR 795; [1977] 2 All ER 602, DC. Reg v Secretary of State for the Home Department, Ex parte Makhan Singh [1977] Imm AR 56, 66n, CA. Rhemtulla v Immigration Appeal Tribunal [1979-80] Imm AR 168, CA.

Cases cited in the Judgment:

Reg v Immigration Appeal Tribunal, Ex parte Rhemtulla (unreported), 15 March 1980, DC. Reg v Secretary of State for the Home Department, Ex parte Oladehinde [1991] 1 AC 254; [1990] 3 WLR 797; [1990] 3 All ER 393, HL(E). Reg v Secretary of State for the Home Department, Ex parte Yeboah [1987] 1 WLR 1586; [1987] 3 All ER 999, CA.

Introduction:

APPEAL from the Second Division of the Inner House of the Court of Session. This was an appeal by the petitioner, Pargan Singh, from the interlocutor of the Second Division of the Inner House of the Court of Session (Lord Ross, Lord Justice-Clerk, Lord Murray and Lord Maxwell) dated 18 January 1991 refusing a reclaiming motion by the petitioner for review of the interlocutor of the Lord Ordinary, Lord Weir, dated 10 May 1989, refusing his petition for judicial review. By his petition, the petitioner admitted that on 13 June 1986 a deportation order had been made against him by the respondent, the Secretary of State for the Home Department, but sought reduction of the order on the grounds that, the notice of intention to deport him not having been served on him, the deportation order following thereon was invalid and that, the terms of regulation 3(4) of the Immigration Appeals (Notices) Regulations 1984 being ultra vires section 18 of the Immigration Act 1971, the Secretary of State should not be allowed to dispense with service of the notice of intention to deport the petitioner. The facts are set out in the opinion of Lord Jauncey of Tullichettle.

Counsel:

John L Mitchell QC and Peter M Macdonald for the petitioner; RD Mackay QC and Fiona L Reith for the Secretary of State.

Judgment-READ:

Their Lordships took time for consideration. 15 October. PANEL: Lord Templeman, Lord Ackner, Lord Jauncey of Tullichettle, Lord Browne-Wilkinson, Lord Mustill

Judgment One:

LORD TEMPLEMAN: My Lords, for the reasons contained in the speech to be delivered by my noble and learned friend, Lord Jauncey of Tullichettle, I would dismiss this appeal.

Judgment Two:

LORD ACKNER: My Lords, I, too, would dismiss this appeal for the reasons given in the speech of my noble and learned friend, Lord Jauncey of Tullichettle.

Judgment Three:

LORD JAUNCEY OF TULLICHETTLE: My Lords, there are two issues in this appeal from the Court of Session, namely, (1) whether regulation 3(4) of the Immigration Appeals (Notices) Regulations 1984 is ultra vires section 18 of the Immigration Act 1971, and (2) whether in the particular circumstances of the case the Secretary of State acted unreasonably in serving on the petitioner at his last known place of abode in accordance with regulation 6 of the Regulations of 1984 a notice of his decision to deport him. The petitioner entered the United Kingdom from India in February 1983 having been granted leave to remain for a period of three months in order to marry. He remained in the United Kingdom after the expiry of the three-month period without having applied for an extension and, on the advice of members of the Indian community in Birmingham, he "went underground." On 20 December 1985 the Secretary of State decided to make a deportation order under section 3(5) of the Immigration Act 1971 and notice thereof was sent both to his last known address and to the home of his sister. The first notice was returned undelivered. On 13 June 1985 a deportation order was made. In early 1989 the applicant was traced to Glasgow and arrested. Thereafter he sought to challenge the validity of the deportation order by way of judicial review procedure. The Lord Ordinary refused to grant him the relief which he sought and the Second Division adhered to the interlocutor of the Lord Ordinary. Section 1 of the Act of 1971 divides persons into those having a right of abode in the United Kingdom who are later referred to in the Act as patrials and those who require permission to live, work and settle in the United Kingdom. Section 3(1) provides that a person who is not patrial shall not enter the United Kingdom unless given leave with or without conditions to do so, and section 3(5) provides that such a person shall be liable to deportation in certain specified circumstances, including his remaining beyond the time limited by his leave. Part II of the Act, which extends to some 12 sections, makes provision for appeals. Section 13 applies to persons who are refused leave to enter the United Kingdom. Section 14 allows persons who have a limited leave to enter or remain in the United Kingdom to appeal against a variation of that leave or a refusal to vary it. Section 15 provides for appeals against a decision of the Secretary of State to make a deportation order by virtue of section 3(5) or a refusal, by him, to revoke a deportation order. Section 15(2) provides that a deportation order shall not be made under section 3(5) during the period allowed for appeal against the decision to make it nor during the period of any pending appeal. Regulation 4(7) of the Immigration Appeals (Procedure) Rules 1984 (SI 1984 No 2041), which were made under powers contained in section 22 of the Act, provides that notice of an appeal against a decision to make a deportation order may be given not later than 14 days after the decision. Thus the procedure involved in making a deportation order involves two stages, namely (1) the decision to make the order, which decision is appealable, and (2) the making of the order if the decision is not appealed or any appeal is unsuccessful. Section 18(1) of the Act is in the following terms: "The Secretary of State may by regulations provide -- (a) for written notice to be given to a person of any such decision or action taken in respect of him as is appealable under this Part of this Act (whether or not he is in the facts of his case entitled to appeal) or would be so appealable but for the ground on which it is taken; (b) for any such notice to include a statement of the reasons for the decision or action and, where the action is the giving of directions for the removal of any persons from the United Kingdom, of the country or territory to which he is to be removed; (c) for any such notice to be accompanied by a statement containing particulars of the rights of appeal available under this Part of this Act and of the procedure by which those rights may be exercised; (d) for the form of any such notice or statement and the way in which a notice is to be or may be given." The Secretary of State first exercised his powers under the foregoing subsection in 1972 in regulations (Immigration Appeals (Notices) Regulations 1972 (SI 1972 No 1683)) which were revoked by the Regulations of 1984. The latter regulations provide, inter alia: "3(1) Subject to the following provisions of this regulation, written notice of any decision or action which is appealable (or would be appealable but for the grounds of the decision or action) 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 was 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. . . . "6. Any notice required by regulation 3 to be given to any person may be delivered, or sent by post in a registered letter or by recorded delivery service to -- (a) that person's last known or usual place of abode; or (b) an address provided by him for receipt of the notice." Regulation 3(4) of the Regulations of 1972 was in terms identical to those of regulation 3(4) of the Regulations of 1984. Mr Mitchell, for the petitioner, advanced two arguments in support of his motion that the appeal be allowed and the deportation order quashed. He submitted (first) that regulation 3(4) was ultra vires section 18 in as much as that section did not empower the Secretary of State to make regulations which dispensed altogether with the service of a notice of a decision, and (second) that no notice had been given by the Secretary of State, because to send a notice to an address at which the petitioner was known not to be abiding was unreasonable in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) and did not therefore constitute compliance with regulation 6. It followed therefore that no valid notice of the decision to deport having been given and there being no power in the Secretary of State to dispense by regulation with the giving of notice the deportation order was invalid and should be quashed. In advancing the first argument Mr Mitchell accepted that if it were correct it would be necessary for this House to overrule three English cases in which it had been held that regulation 3(4) was intra vires section 18. In my view the first question to be addressed is the scope of section 18. Differing views have been expressed in England as to whether the Secretary of State is required by the section to make regulations or whether he has a discretion as to the making or not making thereof. In Reg v Immigration Appeal Tribunal, Ex parte Ekrem Mehmet [1977] 1 WLR 795 Slynn J, in delivering the judgment of a Divisional Court consisting of Lord Widgery CJ, Forbes J and himself, said, at p 804, that section 18(1) gave the Secretary of State "a discretion as to whether and how he shall make regulations." A few weeks later in Reg v Secretary of State for the Home Department, Ex parte Makhan Singh (reported only partially as a footnote in Ekrem Mehmet [1977] Imm AR 56, 66) Bridge LJ in the Court of Appeal said: "When I look at section 18(1), with all respect to the Divisional Court, I gravely doubt whether that is right and whether it can be said that Parliament intended to leave it to the Secretary of State to decide whether any regulations at all should be made under this section. I attach particular significance to paragraphs (b) and (c) of subsection (1). Paragraph (b) says that the regulations may provide for a notice to include a statement of the reasons for the decision, and by subsection (2) such a statement is made conclusive of the ground on which the decision was made. Under paragraph (c) provision may be made for the notice to be accompanied by a statement containing particulars which are designed to provide important safeguards for potential appellants of the rights of appeal available. Looking at these provisions, it seems to me that one should construe subsection (1) not as leaving it open to the Secretary of State's discretion whether he makes any regulations at all, but as requiring him to make regulations under the subsection." My Lords, I entirely agree with the views of Bridge LJ on this matter and indeed would go further. Sections 13 to 16 of the Act confer rights of appeal upon persons in relation to various actions and decisions affecting them, such as refusal of leave to enter the United Kingdom, variations of limited leave to enter the United Kingdom, deportation orders and directions for removal. If those rights are to be effective the persons concerned must, where possible, be given such notice as will enable them to exercise the rights. In my view Parliament intended that the Secretary of State should be required to make regulations which would ensure, so far as practicable, that persons upon whom the rights of appeal had been conferred should be enabled effectively to exercise those rights. It follows that the Secretary of State does not have a discretion as to whether or not he shall make regulations. The next question is what must be contained in those regulations. I turn to consider the three English cases which Mr Mitchell asked your Lordships to overrule. In Ekrem Mehmet [1977] 1 WLR 795, 804, Slynn J said: "Accordingly in our judgment regulation 3(4) was made by the Secretary of State within the powers conferred upon him by section 18 of the Immigration Act 1971." In Makhan Singh, in which the Court of Appeal held regulation 3(4) to be intra vires, Lord Denning MR said (see the transcript): "If a decision to deport is made, the structure of the Act contemplates that notice is to be given whenever the circumstances are such that notice can reasonably be given. Otherwise his right of appeal would be useless. But, if no notice can be given because it is impracticable (as a man's address or place of abode is not known) in those circumstances the regulations can provide that no notice is necessary. It cannot be supposed that the Act is to be rendered nugatory simply because a man has gone to ground and cannot be found. So sub-paragraph (4) is valid. It is not necessary for notice to be given if the Home Office has no knowledge of the present whereabouts or place of abode of the man." Bridge LJ said [1977] Imm AR 56, 66n: " . . . I am perfectly satisfied that the provision in regulation 3(4) of the 1972 Regulations is intra vires, because it is an absurdity to suppose that Parliament intended to compel the Secretary of State to make a regulation requiring written notice to be served in a situation where in practical terms it is not possible to serve it; and it is perfectly legitimate and proper in my judgment for the regulations to spell out, as they do, an exception to the obligation to serve notice in a case where, as here, notice cannot be served because the Secretary of State does not know the whereabouts of the person upon whom notice would otherwise be required to be served." Finally, in Rhemtulla v Immigration Appeal Tribunal [1979-80] Imm AR 168 the Court of Appeal once again held that regulation 3(4) was intra vires. Bridge LJ said, at p 174: "As I have said [Makhan Singh] (the reasoning of which I need not examine) is clearly and unmistakably to the effect that regulation 3(4) of the Immigration Appeals (Notices) Regulations, which dispenses with the necessity for the notice on a person of whose whereabouts the Secretary of State has no knowledge is valid and intra vires. So that disposes once and for all of that point." Mr Mitchell submitted that these cases were wrongly decided. Section 18, although not requiring regulations made thereunder to provide for receipt as well as giving of notice, nevertheless required that some form of substituted service be provided for, such as edictal service or advertisement. My Lords, I reject this submission and agree entirely with the reasoning of Lord Denning MR and Bridge LJ in Makhan Singh. Section 18(1) requires the Secretary of State to make regulations for the purpose to which I have already referred but it does not require him to provide for the giving of notice in circumstances where there is no reasonable prospect of that notice being effective, nor does the subsection provide by implication that in no circumstances can a deportation order be made until notice has been given. So to provide would indeed place a premium on disappearance. When the Regulations of 1984 are looked at as a whole it appears that they have catered for all eventualities which can reasonably be anticipated. Regulation 3(1) provides for written notice of a decision being given as soon as practicable. Regulation 6 provides that any such notice shall be sent to a person's "last known or usual place of abode" or to an address provided by him for receipt of the notice. Regulation 3(4) dispenses with the notice if the "whereabouts or place of abode" of a person are unknown. Thus if a person's usual abode is known or if he has provided an address for service notice must be sent to that address. If his present abode is unknown but his last abode is known the notice will be sent there. If his present abode is unknown and he had no last known abode service is not required. In my view regulation 3(4) is only intended to apply where a person's present and last known place of abode is unknown and it does not overlap with regulation 6. Indeed, regulation 3(4) is likely to operate only in rare cases, for example, where a person has given a false address or where his last known abode has ceased to exist for some reason such as demolition. My Lords, in my view section 3(4) is a sensible provision which is undoubtedly intra vires section 18(1). I would add that in a situation where regulation 3(4) is applied so that a deportation order has been made without notice of the decision to deport having been given, all is not necessarily lost for a non-patrial. He may apply for a revocation of the order and if his application is refused he may appeal against the refusal after he has left the United Kingdom: section 15(1)(b) and (5). Mr Mitchell's argument that service on a person at his last known abode when he is known not to be there is Wednesbury unreasonable also fails. It is to be noted that the attack is not on the vires of regulation 6 but upon its exercise in the particular circumstances of this case. This argument necessarily involves construing "last known place of abode" as meaning "last known place of abode at which there is reason to believe he might still be abiding." There is no warrant for such a construction. "Last known place of abode" means exactly what it says, no more and no less. If it is known where a person was living but it is not known where he is now living, the former is his last known place of abode at which the regulation directs notice to be given. The formula is well known. For example, RSC, Ord 10, r 1(2)(a) provides for service of an originating process by posting to the defendant "at his usual or last known address." Furthermore in considering the question of reasonableness it must be remembered that persons having rights of appeal under Part II of the Act of 1971 are non-patrials who are only present in the United Kingdom by virtue of leave granted to them. It is therefore quite reasonable that they should provide the authorities with addresses to which notices may be given and if they fail so to provide they can hardly complain if notices do not reach them. In the present case the Secretary of State acted entirely reasonably in complying with the requirements of regulation 6 and indeed he went further than the regulations required him to go by sending notice of his decision both to the petitioner's last known place of abode and to the address of his sister. My Lords, for all the foregoing reasons I would dismiss the appeal and affirm the interlocutor of the Second Division.

Judgment Four:

LORD BROWNE-WILKINSON: My Lords, I, too, would dismiss this appeal for the reasons given in the speech of my noble and learned friend, Lord Jauncey of Tullichettle.

Judgment Five:

LORD MUSTILL: My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Jauncey of Tullichettle. I agree with it, and for the reasons given, I, too, would dismiss this appeal.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Oswald Hickson Collier & Co for Drummond Miller WS, Edinburgh, and Philip Rooney & Co, Paisley; Treasury Solicitor for Solicitor in Scotland to Secretary of State for Home Department, Edinburgh.