Ali (D.M.) v. Secretary of State for the Home Department

ALI (D.M.) v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/1436/72(20)

Immigration Appeal Tribunal

[1973] Imm AR 19

Hearing Date: 19 July 1972

19 July 1972

Index Terms:

Political asylum -- Deportation order made on recommendation of magistrates' court -- Right of appeal to higher court from recommendation not exercised -- Representations claiming political asylum made to Secretary of State and considered before order signed -- Whether jurisdiction in Tribunal and adjudicator to consider claim for political asylum on appeal against directions for removal to Cyprus -- Commonwealth Immigrants Act 1962, s 9(1)(2) -- Immigration Appeals Act 1969, s 5(3), s 16 -- Cmnd 4295, paras 26, 33, 41, 42, 46.

Deportation -- Country of destination -- Political asylum claimed on appeal against directions for removal to Cyprus on order implementing magistrates' court recommendation -- Representations claiming political asylum made to Secretary of State and considered before order signed -- Whether jurisdiction in Tribunal and adjudicator to consider claim for political asylum on appeal against directions for removal to Cyprus -- Commonwealth Immigrants Act 1962, s 9(1)(2) -- Immigration Appeals Act 1969, s 5(3), s 16 -- Cmnd 4295, paras 26, 33, 41, 42, 46.

Held:

The appellant citizen of Cyprus was convicted on 14.1.72 of failing to comply with his conditions of admission to the United Kingdom, and the magistrates' court recommended that he be deported. He did not appeal to a higher court, but on 18.1.72 representations were made on his behalf to the respondent which in effect asked for political asylum. After considering these representations the respondent on 21.3.72 made a deportation order and on 25.4.72 gave directions for the appellant's removal to Cyprus. On appeal to an adjudicator under s 5(3) of the Immigration Appeals Act 1969 against the directions for removal to Cyprus it was contended for the appellant that he also had a right under para 42 of Cmnd 4295 n1 to appeal against the rejection of his claim for political asylum because, distinguishing Fardy's Case ([1972] Imm. A.R. 192), he had claimed this before the deportation order was signed. The appellant was unable to specify (under para 46 of Cmnd 4295) n2 any alternative country which would receive him. The adjudicator ruled that he had no jurisdiction to consider the rejected claim for political asylum, and he dismissed the appeal against the directions for removal to Cyprus. n1 Paragraph 42 is set out on p 23, post. n2 Paragraph 46 of Cmnd 4295 is set out on p 23, post. On appeal to the Tribunal against the adjudicator's ruling, Held: (i) There was no substance in the submission which sought to distinguish Fardy's Case, because before proceeding to make a deportation order in pursuance of a court recommendation the respondent was required to await the result of a possible appeal to a higher court against the recommendation (under s 9(1)(2) of the Commonwealth Immigrants Act 1962, and para 33 of Cmnd 4295) n3, and to take account of all the relevant circumstances before reaching his decision; to do this he must investigate and consider any representations made on behalf of the Commonwealth citizen concerned (para 41 of Cmnd 4295 refers). n4 n3 Section 9(1)(2) of the 1962 Act and para 33 of Cmnd 4295 are set out on pp 22, 23, post. n4 The material provision in para 41 of Cmnd 4295 is set out on p 23, post. (Relevant factors for consideration when a deportation order was contemplated following the conviction of a Commonwealth citizen for an offence unconnected with immigration control appear in para 38 of Cmnd 4295; these are repeated in H.C. 80 at para 40.) (ii) Political asylum could not be claimed in isolation but only as a ground in an appeal against some decision, for example, (a) in an appeal against a refusal to vary conditions of admission political asylum could be considered under para 26 of Cmnd 4295 n5, or (b) in an appeal against a decision to make a deportation order under s 16 of the Immigration Appeals Act 1968 (i.e. an order consequent on failure to comply with conditions of admission but not in pursuance of any recommendation of a court) political asylum could be considered under para 42 of Cmnd 4295 n6. n5 Paragraph 26 is set out on p 24, post. n6 Paragraph 42 is set out on p 23, post. (iii) The appellant had not been able to show that any country other than his own would receive him, and accordingly under para 46 of Cmnd 4298 n7 the directions for his removal to the country of his citizenship should stand. n8 n7 Paragraph 46 is set out on p 23, post. n8 Following this determination of the Tribunal the appellant applied to the Queen's Bench Divisional Court for orders of certiorari and mandamus. The Divisional Court upheld the decision of the Tribunal, and Mr Ali appealed to the Court of Appeal. The judgments in the Court of Appeal are reported at [1973] Imm A R 33. sub nom. Ali (D.M.) v Immigration Appeal Tribunal and Others.

Counsel:

Mrs M. Dines of the Joint Council for the Welfare of Immigrants, for the appellant. C. F. Woodiss for the respondent.

PANEL:

Sir Derek Hilton (President), P. N. Dalton Esq (Vice-President), L. W. Chapman Esq.

Judgment One:

THE TRIBUNAL: The appeal was against the determination of an adjudicator (Mr D. L. Neve) in which after dismissing the appellant's appeal against directions for his removal to Cyprus, the adjudicator granted leave to appeal on a ruling he had given as to whether the appellant was entitled to appeal on the issue of political asylum. The appellant Mr Djengiz Mehmet Ali, who is stated to have been born on 29 March 1949, is a citizen of Cyprus. He was convicted on 14 January 1972 at Greenwich Magistrates' Court of failing to comply with the conditions of his admission to the United Kingdom, fined @ 20 and recommended for deportation. The appellant did not appeal to a higher Court against his conviction or the recommendation. On 18 January 1972 a letter was written on the appellant's behalf to the respondent making representations concerning the recommendation for deportation and asking, in effect, for political asylum for the reasons stated in the letter. This letter was acknowledged by the Home Office on 4 February 1972 in which it was stated that the respondent would shortly be considering the Court's recommendation and that the contents of the letter would be brought to his attention. On 28 March 1972 the Home Office wrote to say that the respondent had taken into account the representations made on the appellant's behalf but regretted that he could find no sufficient reason for setting aside the Court's recommendation and that he had therefore made a deportation order against the appellant. The deportation order was dated 21 March 1972. On 25 April 1972 the respondent gave directions for the removal of the appellant to Cyprus. The appellant appealed on the following grounds: --

"I have good reason to fear for my personal safety should I be returned to Cyprus, and if I am deported I wish to go to Sweden, to whom I have applied."

The hearing of the appeal before the adjudicator was adjourned from 22 May until 5 June 1972 as the appellant had applied for admission to Algeria but had not heard if that country would receive him. At the hearing on 5 June 1972 Mrs Dines on behalf of the appellant requested the adjudicator to hear the appellant's claim for political asylum. She conceded that there was no right of appeal against the deportation order but claimed that as the application for political asylum was made before the date of the deportation order the appellant was entitled to a specific decision on that application which, if adverse to him, would give him a right of appeal. After hearing argument and submissions the adjudicator concluded his ruling as follows: -- "I have considered these arguments with some anxiety. The question of political asylum is nowhere referred to in the written Home Office statement, and what I should like to do, in order that justice might manifestly be seen to be done, is to direct that the claim for political asylum be considered and decided upon by the respondent. However, I have no power to make such a direction, as is clear from the decision of the Tribunal in the case of Fardy n9. I clearly cannot hear an appeal against a decision which has never been made, and it therefore must follow that I cannot listen to argument relating to political asylum except in so far as it might relate to the question of destination. n9 [1972] Imm A R 192; TH/3147/71 I come to this conclusion with some reluctance as it seems on the face of it that the appellant has lost a right to be heard which he could reasonally expect. Without expressing any views as to the prospects of his success, it would of course be open to the appellant to apply to the High Court for a writ of mandamus to compel the respondent to consider and decide upon his application for political asylum. I shall now proceed to hear the appellant's appeal as to destination." The adjudicator dismissed the appeal. He held that it was incumbent upon the appellant to satisfy him that some country other than Cyprus would be willing to receive the appellant and this the appellant had not done. At the conclusion of the case the adjudicator granted leave to appeal "solely because the ruling (as opposed to the determination) raises questions which the Tribunal might feel it proper to consider." The appellant's grounds of appeal to the Tribunal are: --

"Paragraph 42 of Cmnd 4295 gives an appellant the right of claiming political asylum. It is claimed that as the application was made prior to the signing of the deportation order he has a right of appeal. See para 33 (Cmnd 4295)."

At the hearing of the appeal before us Mrs Dines on behalf of the appellant submitted (1) that under para 26 of Cmnd 4295 a Commonwealth citizen who did not otherwise qualify for an extension of stay might claim that, if an extension was not granted, he would have to go to a country to which he was unwilling to go for the reasons therein set out. The appellant in this case was just such a person; (2) the facts in this case differed from those in the case of M. J. Fardy n10 because the appellant had applied for political asylum before the deportation order had been made; (3) no decision had been taken by the respondent on the issue of political asylum. n10 [1972] Imm. A R 192. In reply Mr Woodiss submitted that political asylum could not be claimed in isolation; it was only possible to claim it as a ground in an appeal against some decision, for example, a refusal to revoke or vary any condition of admission or a decision to make a deportation order under s 16 of the Immigration Appeals Act 1969. It was important to distinguish between the making of a deportation order under that Act and the making of such an order on the recommendation of a Court under s 9 of the Commonwealth Immigrants Act 1962 against which there was no appeal within the immigration appeal system. Mr Woodiss drew our attention to the wording of paras 42 and 46 of Cmnd 4295. In his submission para 42 related to the making of a deportation order whereas para 46 provided for its implementation. The paragraphs were therefore quite distinct and any attempt to read para 42 into para 46 would in effect give a right of appeal against the deportation order. Mr J D R Kelly, the United Kingdom Representative of the United Nations High Commissioner for Refugees, attended the hearing although he had been unable to give written notice to the Tribunal of his desire to be treated as party. In addressing us he said that he hoped that all claimants for political asylum, including persons in the position of the appellant, would be able to have their representations heard and considered by some person or authority before final decisions were arrived at. In this case a deportation order was made in respect of the appellant by the respondent on the recommendation of Greenwich Magistrates' Court under the Commonwealth Immigrants Act 1962. The appellant did not appeal to a higher Court against the recommendation. The relevant legislation and immigration rules relating to the case are as follows: -- (1) Commonwealth Immigrants Act 1962: -- Section 9 -- "(1) Where a recommendation for deportation is in force in respect of a person to whom section six of this Act applies, the Secretary of State may, if he thinks fit, make an order requiring him to leave the United Kingdom and prohibiting him from returning there so long as the order is in force. (2) An order under this section (in this Act referred to as a deportation order) shall not be made in pursuant of a recommendation for deportation unless either -- (a) the time for bringing an appeal against the recommendation or against the conviction upon which it was made has expired without an appeal having been brought; or (b) such an appeal has been brought and abandoned, or finally determined otherwise than by the quashing of the recommendation or the conviction; or (c) the recommendation was made on appeal and no further appeal lies." (2) Cmnd 4295: -- Paragraph 33. "Against the making of a deportation order under the 1962 Act a Commonwealth citizen has no appeal within the immigration appeal system; but he will have a right of appeal to a higher court against the recommendation itself. Such an order may not be made while it is still open to the Commonwealth citizen to appeal against the relevant conviction or recommendation, or while on appeal is pending." Paragraph 41 (dealing with deportation for breach of conditions). The last sentence reads: -- "But full account is to be taken of all the relevant circumstances before any decision to make a deportation order is taken." Paragraph 42. "A Commonwealth citizen will not be deported if this would mean his going to a country to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular group or political opinion." Paragraph 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 Commonwealth 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." It is clearly laid down in para 33 that no appeal lies within the immigration appeal system against a deportation order made under the Commonwealth Immigrants Act 1962. But a Commonwealth citizen who is recommended for deportation by a Court has other rights and means open to him to raise (inter alia) the issue of political asylum. It appears to us that this issue can be raised: -- (a) before the Court which makes the recommendation n11; n11 This view was repudiated in the judgments of the Court of Appeal on their consideration of the issues in this case, Ali (D.M.) v Immigration Appeal Tribunal and Others reported at [1973] Imm A R pp 33 to 36, post, per LORD DENNING, MR, at p 35. (b) before a higher Court on appeal against the recommendation; (c) by representations to the respondent as to the relevant circumstances to be taken into account by him in making his decision. The appellant did not raise the issue of political asylum before the Magistrates' Court, neither did he appeal to a higher Court against the recommendation. Full representations were, however, made on his behalf to the respondent, including a claim for political asylum and the appellant was later informed that such representations had been taken into account before the deportation order was signed. It is therefore hardly true to say, as the appellant's representative alleged before us, that no decision had been taken by the respondent on the issue of political asylum. It has been submitted to us that this case differs from the case of M. J. Fardy because in that case the issue of political asylum was raised for the first time after the deportation order had been signed. In the appeal of M. J. Fardy the Tribunal said n12, n12 [1972] Imm A R 192 at p 196.

"whether or not there are well-founded fears in any particular case is a matter for consideration by the Secretary of State in deciding whether to make a deportation order but when the order has been made following a Court recommendation there can be no appeal on that account as such a deportation order is outside the immigration appeal system."

We have carefully considered this submission but it seems to us that the making of a deportation order under s 9 of the Commonwealth Immigrants Act 1962 does not merely involve the signing of the order but embraces a period of time and is a process commencing with the Court recommendation. After such a recommendation is made the respondent must wait while it is open to the Commonwealth citizen to appeal to a higher Court against the recommendation and while an appeal is pending. Furthermore the respondent, in taking full account of all the relevant circumstances before reaching his decision, must investigate and consider any representations made by or on behalf of the Commonwealth citizen. We are therefore of opinion that there is no substance in this submission. We agree with the submission made by the respondent's representative that political asylum cannot be claimed in isolation but only as a ground in an appeal against some decision. In this case there was no decision, for example, to refuse to vary the appellant's conditions of admission or to make a deportation order against him under s 16 of the Immigration Appeals Act 1969, against which the appellant would have had a right of appeal in which, as a ground of appeal, he could have raised a claim for political asylum. It has further been submitted on behalf of the appellant that he has the right to claim political asylum under para 26 of Cmnd 4295 which reads: -- "A Commonwealth citizen who does not otherwise qualify for an extension of stay may claim that, if an extension were not granted, he would have to go to a country to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any such claim will be carefully considered in the light of all the relevant circumstances." Cmnd 4295 is divided into two Parts. Part A, comprising paragraphs 1 to 28, is entitled "Revocation or variation of conditions of admission". Part B consists of the remaining paragraphs 29 to 46 and is entitled "Deportation". In our view para 26 relates solely to matters of appeal arising under Part A. In deportation cases para 42 is the relevant paragraph for consideration of claims for political asylum, but the appellate authority may do so only when the Secretary of State's decision to make a deportation order was taken under s 16 of the Immigration Appeals Act 1969. In this case directions have been given for the removal of the appellant to Cyprus. Under para 46 of Cmnd 4295 the normal procedure is to secure the return of a Commonwealth citizen to the country of which he is a citizen but arrangements may be made for him to be sent to another country if he can show that that country will receive him. The appellant has not been able to establish in this case that any country, other than his own, will receive him. For these reasons we dismissed the appeal. n13 n13 This case was considered by the Queen's Bench Divisional Court and by the Court of Appeal. Both Courts upheld the decisions of the adjudicator and Tribunal. The judgments in the Court of Appeal are reported at [1973] Imm AR 33 p 33, post, sub nom. Ali (D.M.) v Immigration Appeal Tribunal and Others.

DISPOSITION:

Appeal dismissed.

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