R v. Secretary of State for the Home Department, Ex parte William Kwaku Duah Brew
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 6 October 1987 |
| Citation / Document Symbol | [1988] Imm AR 93 |
| Cite as | R v. Secretary of State for the Home Department, Ex parte William Kwaku Duah Brew, [1988] Imm AR 93, United Kingdom: High Court (England and Wales), 6 October 1987, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6998.html [accessed 17 September 2023] |
| Disclaimer | This 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. |
R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte WILLIAM KWAKU DUAH BREW
Queen's Bench Division
[1988] Imm AR 93
Hearing Date: 6 October 1987
6 October 1987
Index Terms:
Deportation -- overstayer -- whereabouts unknown -- decision to initiate deportation proceedings taken -- service dispensed with -- applicant subsequently arrested -- not told, during Home Office interviews of decision to deport -- deportation order then signed -- whether Secretary of State acted unfairly -- whether applicant suffered detriment through loss of opportunity to lodge out of time appeal or to leave country voluntarily -- and, on basis of subsequent marriage to seek re-entry as husband -- the relevance of the facts and his immigration history. Immigration Act 1971 ss 3(5), 15(1)(a), 24: Immigration Appeals (Procedure) Rules 1984, rr 4(7), 4(11), 5(1), 5(2): Immigration Appeals (Notices) Regulations 1984 rr 3(1), 3(4). HC 169 paras 54, 76.
Legitimate expectation -- whether on the facts the applicant had a legitimate expectation that he would have an opportunity to appeal against the decision to initiate deportation proceedings.
Held:
The applicant was admitted in February 1981 as a visitor: he went to ground and became an overstayer. He never went to the address in the United Kingdom which he had given to the immigration authorities. The Secretary of State decided in October 1983 to initiate deportation proceedings. The applicant's whereabouts being unknown, service of the notice was dispensed with under regulation 3(4) of the Notices Regulations, albeit a copy was sent to the address held by the immigration authorities. In March 1984 the applicant was arrested. He was convicted of overstaying: the magistrates' court recommended his deportation, a recommendation then quashed by the Crown Court. The applicant meanwhile married. The applicant was interviewed three times by the Home Office between July 1984 and February 1986. He was not told of the decision to initiate deportation proceedings. The deportation order was signed in March 1986. On application for judicial review it was argued that the Secretary of State had acted unfairly in not bringing the notice of intention to deport to the applicant's notice as soon as practicable. He had been denied the opportunity to seek leave to make an out of time appeal. He had lost the opportunity voluntarily to leave the United Kingdom and apply for admission as a husband. Moreover, he had had a legitimate expectation that he would have an opportunity to appeal against the decision to initiate deportation proceedings. Held: 1. The Secretary of State was under no statutory duty to advise the applicant in March 1984 or later of the decision to deport. The Court made no finding as to whether "he was under any other kind of duty to give him notice". 2. The Court expressed the view, however, that "it would be better if, after the whereabouts of the individual become known, he were told that a decision to deport him had been made and when." 3. The Court would not decide the question of fairness because on the facts, the applicant had suffered no detriment. The root cause of the applicant's loss of a right of appeal was his going to ground: that was not a special circumstance such as would likely have led to his being allowed to appeal out of time. Reviewing the case as a whole it was unlikely that he would have left the country voluntarily or that, if he had, he would have been granted leave to enter as a husband, in the light of the provisions of paragraph 76 of HC 169. 4. As the doctrine of legitimate expectation had so far developed, it had no application to the facts of this case.Cases referred to in the Judgment:
O'Reilly v Mackman [1983] 2 AC 237: [1982] 3 All ER 1124. CSSU v Minister for the Civil Service [1985] 1 AC 374: [1984] 3 All ER 935.Counsel:
S Bhanji for the appellant; D Pannick for the respondent PANEL: McCullough J Judgment By-1: McCULLOUGH JJudgment One:
McCULLOUGH J: Mr Brew applies for judicial review of two actions of the Secretary of State for the Home Department. First, the making on 3 March 1986 of an order for his deportation because he had overstayed in this country beyond his leave and, second, the giving of directions to remove him served on him on 3 May 1986 consequential to the deportation order. Clearly if the deportation order is to be quashed the directions to remove go too. If the deportation order stands there is no basis upon which the directions to remove could separately be quashed. So essentially the decision is about the deportation order. The applicant was born in 1959 in Ghana. He came to this country, not for the first time but on the material occasion, on 14 February 1981. He was given leave to enter and stay for a month as a visitor. The address he gave was one in Kenton where someone whom he described as his uncle lived. This was an address at which he had stayed on an earlier visit the previous year. Unknown to the Home Office the applicant never went to this address on the occasion of this visit. When his month expired he overstayed and, as he later admitted, went to ground. The authorities, realising that his permission had expired, looked for him, and in September 1981 a police officer went to the address in Kenton only to be told that he had not stayed there since 1980 and that it was not known where he was. On 13 and 14 September 1982 the applicant had, for him, a very lucky escape. The police found him. He was then at an address in East London. He pretended to be somebody called Vincent Leroy who was born in the United Kingdom and he pretended that the woman who was then with him was called Charity Abeyie, also said to be born in the United Kingdom. Documents relating to people of those names were produced. Then he dropped the pretence of being Vincent Leroy and said he was Bernard Apau Kufour, born in the United Kingdom in 1957. The police had their suspicions but were unable to prove that he was not that person and he was released from custody on 14 September. So was the woman. The woman was in fact Diana Osei Akoto whose status in the country at that time was also unlawful, as he, the applicant, must have known. In 1983 he began to live with a lady who later became his wife. She was born in Birmingham, England, in October 1962, but in 1970 had gone to live in Ghana where she remained until 1983, coming back at the age of 20. Before a decision to deport the applicant was made, the Home Office wrote to the man in Kenton but no reply to the letter was received. So it was that on 12 October 1983 a decision to deport him was made under section 3(5) of the Immigration Act 1971. Regulation 3(1) of the Immigration Appeals (Notices) Regulations 1984, says: "Subject to the following provisions of this Regulation, written notice of any decision or action which is appealable . . . 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." The decision to make the deportation order was an appealable decision (Immigration Act 1971 section 15(1)(a)). However, because of regulation 3(4) no such notice was given. That regulation reads: "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." Those were the circumstances in October 1983. A copy of the decision was, however, sent to the address in Kenton. Fourteen days after the taking of that decision (as that expression is to be interpreted by virtue of Immigration Appeals (Procedure) Rules 1984, rule 4(11)), the time for appealing against it expired (regulation 4(7) of the Immigration Appeals (Procedure) Rules 1984). So the decision stood. On 6 March 1984, the applicant was traced to another address in East London and arrested. He was with the same woman as before and again he said, as did she, that she was Charity Abeyie. After some initial prevarication, he admitted his true identity. He told the police that he had a fiancée who was living at another address in East London and said that, but for her illness, he would have married her the previous day. He was in possession of a document which confirmed the fact. On this date he was questioned by an immigration officer, Mr Kennedy, from whom the court does not have evidence. According to the second-hand evidence of Mr PM Pawsey, who swore an affidavit which is before the court, the applicant said to Mr Kennedy that he was unemployed and receiving financial support from an uncle. He named the uncle as the gentleman who lived in Kenton. The applicant himself, in an affidavit sworn as recently as 2 October 1987, says this in relation to that conversation: "The only comment I would make about my interview in March 1984 was that whilst I said I was being supported by an uncle, I did not, to my recollection, give the name of ( -- that particular person -- ) in this context. The uncle who had helped me was Mr Agyeman the husband of my half sister who is called uncle. I was also supporting myself during this period by taking casual jobs. As I explained previously ( -- the man in Kenton -- )did not approve of me and I had no contact with him during my stay on this occasion. Until quite recently neither he nor my aunt knew of my address. I have certainly never received correspondence from him." We have a conflict here between the first-hand evidence of the applicant and the second-hand evidence from Mr Kennedy via Mr Pawsey. The court has no means of resolving this conflict. It would have been more satisfactory if Mr Kennedy himself had deposed to this conversation but, let it be said, at the time Mr Pawsey swore his affidavit it was not to be anticipated that the applicant would, a matter of three or four days before the hearing, deny the assertion therein contained. One notes too that the applicant is a person whose word is not to be trusted. I say that not merely because of the aspects of the history to which I have already referred but because of further lies which he told later on. One notes, further, the strange phrase, "I did not to my recollection give the name of -- the man from Kenton -- in this context". This gives the court little, if any, confidence in the accuracy of the applicant's assertion. He was then proceeded against under section 24 of the Act of 1971 for having overstayed. He was given bail on 15 March 1984. He appeared before the Magistrates' Court on 12 April 1984 and pleaded guilty; he was fined @100 with a term of imprisonment in default, recommended for deportation and remanded in custody. It is said by him, and not disputed by the respondent, that an immigration officer was in court at that time. Meanwhile, eight days before, on 4 April 1984, he had married his fiancée and in the same month they moved together to an address in north-west London. His cause was the subject of a representation by a women's group in Hackney who wrote to a Member of Parliament who sent on their letter to the Home Office. It said, effectively, two things: 1 He ought not to have been remanded in custody; he should be given bail; 2 If, as recommended, he were deported this would cause hardship on account of his recent marriage. He appealed to the Crown Court at Snaresbrook and on 4 May 1984 the recommendation for deportation was quashed. He was released. He continued to live with his wife and, although there were doubts in 1984 about the genuineness of the marriage, these doubts were, over succeeding years, resolved. A son was born on 13 November 1984. In the following month they moved to their present address in Wembley and the applicant's wife became pregnant again, giving birth nine days after the deportation order was made to a daughter who, sadly, died. It is now clear that the marriage was genuine and the parties have at all times lived together since April 1984; a third child, a daughter, was born in March 1987. The applicant was interviewed in July 1984, May 1985 and February 1986, shortly before the deportation order was made. It was again Mr Kennedy who interviewed him and he formed a very unfavourable impression of him. The applicant was saying that he had only found out after his release from custody that the woman with whom he had been seen in 1982 and on 6 March 1984 was really Diana Osei Akoto. That, it is plain from a later admission, was a lie. He was saying that his relationship with her had at all times been platonic. That has also been shown to be, and is now admitted to be, untrue. He even went so far as to deny that he was the person who had been arrested in September 1982. It is enough to say that Mr Kennedy formed the view the applicant lied about almost everything about which he was asked. His conclusion, which he recorded in his report, was that he had met few people more deserving of deportation. In these proceedings no argument has been addressed to the court that on the merits of the case a deportation order could not reasonably have been made. It is not suggested that anything immaterial was improperly considered or anything which should have been considered was not. The challenge to the making of the order is upon a limited basis and it has been put very clearly by Mr Bhanji, for whose submissions the court is grateful. It is this: the Home Office were quite right not to inform the applicant of the making of the decision in October 1983 but when they discovered where he was in March 1984 they had a duty to tell him that the decision had been made. They never did tell him and he remained in ignorance of it until he was told of the making of the deportation itself on 3 March 1986. It is said in the grounds of application that "the Secretary of State was under a duty to act fairly and in the circumstances of this case a duty to act fairly involved service of the decision of October 1983 on the applicant as soon as practicable after his arrest on 6 March 1984." Secondly it is said that "the applicant had a legitimate expectation that he would have an opportunity of appealing against a decision to deport him, because he dealt with the Home Office from March 1984 to May 1986 without being informed that such a decision had already been taken." Put in different words what that comes to is this: he was entitled to expect that if a decision had been taken, as one had, he would have been told about it in these two years. Mr Bhanji submitted that the fact that he was not told had two consequences, by each of which he has been seriously prejudiced. The first is this. It is said that he could have chosen to leave this country voluntarily and then, if he had wanted to come back, he would not have been a person whose re-entry was prohibited by the existence of a deportation order. He would have been able to apply for entry clearance as the husband of a woman settled here and he would, despite his history, have had a chance to return. The second is this. It is said that he lost his chance to apply for leave to appeal out of time under rule 5(1) of the Immigration Appeals (Procedure) Rules 1984. The material words of the rule are: "(1) Where a person gives to the appropriate officer . . . notice of appeal after the expiry of the period permitted by Rule 4 for the giving of such notice, the appropriate officer may, subject to paragraph (3) below, treat the notice as if it had been given in accordance with Rule 4 if he is of the opinion that by reason of special circumstances it is just and right so to do. In such a case the notice in question shall, as from the day on which the aforementioned power is exercised, be treated for all purposes as if it had been given in accordance with Rule 4." Sub-rule (2) says: "No steps shall be taken under this Rule in the case of a person in respect of whom a deportation order is, for the time being, in force." In other words, he might have been given, it is said, leave to appeal out of time at any stage between 6 March 1984 and 3 March 1986 (the date of making the deportation order). He says he was the more entitled to expect that he would be informed of the existence of the decision of October 1983 because of the fact that, as the Home Office knew, he had appealed successfully against the recommendation for deportation, it being quashed, as I have said, on 4 May 1984. Mr Pannick, on behalf of the Secretary of State says: 1 It is not accepted that the Secretary of State had any duty in relation to informing the applicant of the decision of October 1983 over and above that required by the statutory provisions. 2 If there was a further duty it was not broken, because the Secretary of State had good reason to think that the applicant had been informed of the decision, bearing in mind that he said, in March 1984, that he was being supported by this uncle in Kenton and that notification of the making of the decision had been sent to that man's address. 3 No detriment resulted from any breach of duty that there may have been. There is no chance that he would ever have been given leave to appeal against the decision of October 1983. If he had been given leave the appeal would not have succeeded. Finally, it is most unlikely that he would have chosen to leave the country voluntarily and, even if he had, it is unrealistic to imagine that he would ever have been allowed back. It is clear that the Secretary of State was under no statutory duty to give the applicant notice after his whereabouts were discovered on 6 March 1984. I am not convinced that he was under any other kind of duty to give him notice. In cases such as this, where service has been dispensed with under regulation 3(4) of the Notices Regulations, I think it would be better if, after the whereabouts of the individual concerned become known, he were told that a decision to deport him had been made and when, but I am not saying one way or the other whether there is a duty to do this. It is a matter on which I need reach no decision. It is established that the courts will protect a legitimate expectation based on an express promise or on knowledge of a general practice, but neither basis can be said to have existed here. The doctrine of legitimate expectation as so far developed is not applicable to the state of affairs under consideration in the present case. (See Lord Diplock in O'Reilly v Mackman [1983] 2 AC, 237 at page 275 and Lord Fraser of Tullybelton in CCSU v Minister for the Civil Service [1985] 1 AC, 374 at page 401). In my opinion the situation here is better considered in terms of fairness. At no time between the decision to make the deportation order and the making of the deportation order did the applicant know that the decision had been taken. Had he known he would, so it is said, have been able to take certain steps which, in the event, he did not consider taking with the result that his position was (so it is submitted) prejudiced. If, additionally, the Secretary of State knew or should reasonably have known that the applicant was in ignorance of the decision and yet did not inform him, was he treated unfairly? I can see the argument that he was, but that this entitled him to a remedy in law is a matter about which I am not satisfied. On the facts I think the Secretary of State should reasonably have known that the applicant was unaware of the decision, or, at any rate, that he might well have been. In saying so I take account of the fact that in September 1981, as the Secretary of State would have known, when the police went to the address in Kenton they were told by an apparently perfectly respectable man whose word there has not been any reason to doubt, that the applicant had not been there and that his whereabouts were unknown. The reason why I find it unnecessary to reach a decision about this question -- interesting though it is and important though it may be in other circumstances -- is that I do not believe that any prejudice has resulted to the applicant from the fact that he was not so informed. The root cause of his failure to exercise his right of appeal to an adjudicator was his having gone to ground. He chose to go to ground and it is his own fault both that the decision was made and that it was not possible to inform him of it. If he had been told, in March 1984, that the decision had been made what, in reality, would have happened? Looking at the material before the court and applying a measure of common sense, I think it is unrealistic to say that he would or might have availed himself of the opportunity to leave the country before a deportation order was made and go to Ghana in the hope that he would be able to persuade an entry clearance officer there to give him entry clearance to enable him to come back to this country as the husband of a woman settled here. I think he would have stayed here till the last possible minute and would have argued the toss about his deportation and removal whenever the opportunity was thought to present itself. Even if he had gone, I cannot see that he would have been given entry clearance to return. He would have been able to satisfy the provision of HC 169 paragraph 54 which lays down criteria in relation to marriage. However, paragraph 76 makes clear that leave to enter may be refused where, for example, a passenger has not observed a time limit or conditions imposed on any grant of leave to enter or remain. All the circumstances of this man's previous entry to this country, as it would have been in the hypothetical circumstances now under consideration, would have been taken into account. Of course the fact that he had married would be taken into account and the fact that his wife was pregnant (or had had a child, depending on the date), but when one looks at the history of his behaviour, at his going to ground, at his deception of the Home Office not only as to his own identity but also that of Diana Osei Akoto, it seems to me inconceivable that he would have been granted entry clearance to return. He would have been seen as a man who had stayed in this country without permission from March 1981 until the moment when he thought that a deportation order was about to be made. It would, I think, have been obvious that the only reason why he had gone to Ghana intending to come back was to prevent the deportation order from being made and thereby bringing the shutters down on his entry permanently. So I reject the argument that he lost something of value in this respect. Nor do I believe that he would have been given leave to appeal out of time against the decision of 12 October 1983. Leave to appeal may be given in special circumstances and will be given if the relevant officer thinks it just and right so to do. But look at the history as it would have seemed in March 1984 with the man in the country for over three years without permission having gone to ground and behaved in the way that I have earlier outlined; marrying, it is true, in April 1984 a woman with whom he had had a relationship for perhaps a year by that stage, a relationship which started comparatively late in the period of his illegal presence in this country. As Mr Pannick points out, what is required for leave to be given out of time are special circumstances, ie special circumstances which make it right to give leave to appeal out of time. If he was not made aware of the decision to deport him, it was because he could not be informed of it, which was because he had chosen to go to ground and taken his chance. Those are not special circumstances which justify the giving of leave. I also accept Mr Pannick's further submission that, even if he had managed to obtain leave, no adjudicator would have overturned the decision to make a deportation order, considering the way he had behaved. Accordingly, the disadvantages of which Mr Bhanji has spoken are, in my view, no more than conjectural and theoretical; I do not believe that this man was in any way prejudiced by the fact that notice was not given to him. Accordingly, even if there was any want of fairness by the Secretary of State, as to which I express no view, no relief would have been granted. For these reasons this application fails.DISPOSITION:
Application dismissedSOLICITORS:
Crosling & Baldwin, London NW3; Treasury SolicitorCopyright notice: Crown Copyright