Secretary of State for the Home Department v. Sanusi

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v SANUSI, TH/3359/72(379)

Immigration Appeal Tribunal

[1975] Imm AR 114

Hearing Date: 28 November 1974

28 November 1974

Index Terms:

Deportation -- Revocation of Order -- Deportation following conviction of breach of conditions of stay and on Court's recommendation -- 'Studied disregard of immigration control' found -- Wife (and children) voluntarily remaining in U.K. when husband's deportation order became effective -- Husband anxious about their 'circumstances and whereabouts' -- Whether on facts disclosed Order should be revoked within period of less than 3 yers since it became effective -- Udoh's Case ([1972] Imm. A.R. 89) distinguished -- Commonwealth Immigrants Act 1962, s 9(3) -- HC 80, para 56.

Held:

S, a citizen of Nigeria, was admitted to the United Kingdom in December 1965 for 6 months as a visitor. He failed to leave in June 1966 and remained in breach of his conditions for over 9 months till he applied in April 1967 to remain as a student of architecture. He was granted extensions of stay and finally told to leave the country by 31 May 1969; he did not leave, nor did he apply to the Home Office to regularise his position even when in April 1970 he was given a further warning. S was arrested and on 25 August 1970 he was convicted of failing to comply with the conditions imposed on his stay. The Magistrates' Court's recommendation for deportation was implemented by the Secretary of State, and S's appeal to an adjudicator against removal to Nigeria was dismissed in August 1971. In September 1971 S returned to Nigeria of his own accord; his wife and 3 children (2 of whom were born in this country) did not accompany him although the Home Office offered to pay their fares. Within a few weeks of his return to Nigeria an application for revocation of the deportation order was made on S's behalf; this was refused in November 1971. The adjudicator to whom S appealed decided on 14 December 1973 to allow the appeal under the discretionary provision contained in s9(3) of the Commonwealth Immigrants Act 1962, n1 acting inter alia in the mistaken belief that S had been out of the country for over 3 years and had in consequence 'amply atoned' for his offence. n1 Section 9(3) of the 1962 Act reads --

"The Secretary of State may, if he thinks fit, revoke a deportation order at any time, whether before or after the person to whom it relates has left or been removed from the United Kingdom, but the revocation of a deportation order shall not affect the validity of anything previously done thereunder."

On appeal to the Tribunal by the Secretary of State, Held (allowing the appeal): S had been generously treated after his initial breach of conditions, but his subsequent conduct showed a studied disregard of immigration control, and the Secretary of State's refusal to revoke the deportation order was fully justified. Udoh's Case ([1972] Imm A R 89) distinguished. (The Tribunal noted, however, that at the time of this present appeal hearing the deportation order had been effective for over 3 years, and in view of S's anxiety as to the 'circumstances and whereabouts' of his family in this country the Tribunal believed that the Secretary of State might consider it proper under para 56 of HC 80 to initiate a review of the order n2.) n2 Paragraph 56 of HC 80 provides as follows: --

"Applications for the revocation of a deportation order will be carefully considered in the light of the grounds on which the order was made and of the case made in support of the application. The interests of the community, including the maintenance of an effective immigration control, are to be balanced against the interests of the applicant, including any circumstances of a compassionate nature. In the case of an applicant with a serious criminal record continued exclusion, for a long term of years, will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered either by a change of circumstances since the order was made or by fresh information coming to light which was not before the court that made the recommendation or the appellate authorities or the Secretary of State. The passage of time since the person was deported may also, in itself, amount to such a change of circumstances as to warrant revocation of the order. Since so much depends on other relevant circumstances, it is not practicable to specify periods as appropriate in relation to particular grounds of deportation. All applications for revocation will be carefully considered when made, but the Secretary of State does not himself initiate the review of deportation orders, with a view to deciding whether they need be maintained, until they have been in force for at least 3 years."

Counsel:

B Lockett for the appellant Secretary of State. Miss S. Hatton of the United Kingdom Immigrants Advisory Service, for the respondent. PANEL: P. N. Dalton esq (Vice-President), L. W. Chapman Esq, Sir Stanley Tomlinson.

Judgment One:

THE TRIBUNAL: The respondent in this appeal is Mubashiru Aiybdun Sanusi, a citizen of Nigeria who first came to the United Kingdom in December 1965, when he was admitted as a visitor for 6 months. At the end of 6 months he failed to leave the United Kingdom or apply for an extension of stay and he remained in breach of his conditions of admission until 1 April 1967, when he applied to remain as a student of architecture. He was granted certain extensions of stay until 31 May 1969, and he was told by the Home Office that he should leave the United Kingdom by that date. The appellant did not embark but remained here until he was arrested. On 25 August 1970 at the North London Magistrates Court he was fined @ 5 and recommended for deportation for failing to comply with his conditions of admission. After careful consideration of all the circumstances, including the fact that the appellant's wife and children were resident in the United Kingdom free of conditions and that 2 of his children were born in this country, the Secretary of State was unable to find grounds to set aside the court's recommendation and accordingly he signed a deportation order under s9(1) of the Commonwealth Immigrants Act 1962. The appellant appealed but the appeal was dismissed on 27 August 1971 and the appellant later returned to Nigeria of his own accord. He did not take his family with him although the Home Office offered to pay the cost of their return to Nigeria. On 26 October 1971 an application for revocation of the deportation order was made on Mr Sanusi's behalf but the Secretary of State, having regard to the nature of the offence of which the appellant was convicted and taking all the relevant factors into account, considered that it was too soon yet to allow him to return to the United Kingdom, and on 12 November 1971 the Secretary of State refused to revoke the deportation order. The appellant appealed to an adjudicator and the appellant's representative wrote requesting that the appeal be disposed of without a hearing. The adjudicator, Mr I.M.S. Donnell, therefore considered the appeal under the provisions of r 10(a) of the Immigration Appeals (Procedure) Rules 1970. The adjudicator, who considered the appeal on 14 December 1973, said that it was asked that the following be taken into account: that it was three years since the deportation order was made; that the appellant was distressed that he had not heard from his wife and children; and that if the order were lifted the appellant would be free to seek permission to come to the United Kingdom. The adjudicator referred to s 9(3) of the Commonwealth Immigrants Act 1962, which provides that "the Secretary of State may, if he thinks fit, revoke a deportation order at any time", and then he went on to consider the case of Udoh ([1972] Imm. A.R. 89) in which the Tribunal said (at p 92): -- "No principles are laid down as to the minimum length of time during which a deportation order should remain in force. Revocation is a matter of discretion and in our view the duration of a deportation order must depend on the facts and circumstances of each individual case". The adjudicator set out the facts in the case of Udoh and then considered the facts of this case, during which he said: --

"Although the appellant in the present case originally outstayed his permitted period as a visitor, this was condoned by the Home Office and, in my view, cannot now be held against the appellant. Having again outstayed, the appellant was convicted by the Magistrates' Court. It seems that the court did not consider that the offence was a particularly grave one, however, as a fine of only @ 5 was imposed."

"So far as I am aware, the appellant has led a blameless life, apart from the breach of the Immigration Rules for which he was prosecuted. It has not been suggested by the respondent that apart from this matter there is any reason why the appellant should continue to be subject to the disablement which the order imposes."

"According to the case of Udoh, above mentioned, there is a principle of atonement to be applied. In the present case the appellant has been out of the United Kingdom for over three years. As I have said there appears to be nothing against him, apart from his original offence, and in my view he has amply atoned for this offence."

"The matter is one of discretion and having considered all the circumstances, it is my view that the deportation order which was made in respect of the appellant should be revoked."

The Secretary of State applied to the Tribunal for leave to appeal on the following grounds: -- "That the adjudicator failed to take sufficient account of Sanusi's past breaches of the Immigration laws and that he was incorrect in both his statements that Sanusi had been out of the United Kingdom for three years and that the deportation order was made on 23 October 1970 -- it having been made on 16 October 1970. Furthermore that as Sanusi in fact only left the United Kingdom in September 1971 it is too soon to revoke the deportation order made against him." Leave to appeal was granted. It is obviously not of great importance whether the deportation order was made on 16 October or 23 October 1970 but it is apparent that the adjudicator was wrong when he said that the respondent had been out of the United Kingdom for over three years. As the respondent had not left the United Kingdom until about September 1971 and the adjudicator heard the appeal in December 1973 Mr. Sanusi had only been out of the United Kingdom some two years and three months. The adjudicator said that there appeared to be nothing else against the appellant except his original offence, for which he had amply atoned. However the Home Office statement shows that six months after his arrival in this country the appellant was in breach of his conditions of entry. He was generously treated and allowed to stay as a student but when he could no longer satisfy Home Office requirements he was told to make arrangements to leave the country by 31 May 1969. The appellant did not do so, and when he was told to apply to the Home Office to regularise his position, again he did not do so even though he was given a further warning in April. Whatever view the Court took of the offence when imposing a fine of @ 5, such conduct in our view showed a studied disregard or defiance of immigration control. In the case of Udoh n3 the Tribunal found that there was "ample evidence to show that Mr Udoh was forced to cease full-time study owing to his lack of financial support from Biafra during the war period but that he intended to resume his studies full-time as soon as the war was over". In this case we do not think that there is evidence showing that the appellant would have resumed his studies if he had the opportunity to do so. We are satisfied that the Secretary of State's refusal to revoke the deportation order against the respondent was, in view of the facts, fully justified. For these reasons this appeal is allowed. n3 [1972] Imm A R 89, at p 91. We do, however, wish to say that it is apparent that Mr Sanusi is deeply concerned about the circumstances and the whereabouts of his family in this country. Mr Sanusi's solicitors wrote to Mrs Sanusi last year more than once but failed to get any reply. The hearing of this appeal was adjourned in May of this year as the Tribunal wished to have a report about Mrs Sanusi's circumstances but though Miss Hatton has written twice to Mrs Sanusi she has had no reply and the letters have not been returned. Under the relevant rule of HC 80 the Secretary of State does not himself initiate the review of deportation orders, with a view to deciding whether they need be maintained, until they have been in force for at least 3 years. n4 The deportation order against Mr Sanusi has now been effective for over three years and in view of the family circumstances it is possible that the Secretary of State may consider that the time has now come when it would be proper for him to initiate a review. n4 n4 The relevant rule in HC 80, para 56, is set out in footnote 2, ante.

DISPOSITION:

Appeal allowed.

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.