Secretary of State for the Home Department v. Aluko

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v ALUKO, TH/2464/73(236)

Immigration Appeal Tribunal

[1974] Imm AR 90

Hearing Date: 3 January 1974

3 January 1974

Index Terms:

Deportation -- 'Five-year rule' -- Commonwealth citizen -- Entry lawful for limited stay -- Deportation on grounds of persistent failure to comply with conditions of stay -- Whether 'ordinarily resident' though not "settled' -- Relevance of 'five-year rule' when considering whether deportation the proper course -- Immigration Act 1971, ss 2(3) (d), 3(5)(a), 7(1)(b) & 7(2), 33 -- H.C. 80, para 42.

Deportation -- Consideration of the merits -- Failure to comply with the immigration rules after lawful entry -- Overstaying permitted extensions on 6 occasions in 4 1/2 years -- Relevance of 'five-year rule' when deciding whether deportation the proper course -- Immigration Act 1971, ss 3(5)(a), 7(1)(b) & 7(2), 33(2).

Held:

A, a citizen of Nigeria born on 8.6.40, entered the United Kingdom lawfully on 30.3.68. He was granted several extensions of stay as a student, extensions for which his applications on 6 occasions were made only after his previous permitted stay had expired; between September 1968 and January 1973 he had overstayed a total of some 165 days. His final application was refused on 31.1.73 on the grounds of the dilatoriness with which he had pursued his studies and with which he had observed the conditions of stay previously imposed on him; he was however granted an extension to 7.3.73 to enable him to make arrangements to leave the country. He failed to appeal against that decision within the statutory period and he did not leave. On 28.3.73 the Secretary of State gave notice of his intention to make a deportation order under s 3(5)(a) of the Immigration Act 1971 n1. n1 Section 3(5)(a) of the Immigration Act 1971 reads: -- "A person who is not patrial shall be liable to deportation from the United Kingdom -- (a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave". On A's appeal against deportation the adjudicator, allowing his appeal, expressed the view that A should leave the country because he had not complied with the immigration rules, but (on the facts as the adjudicator say them) that he should be allowed to leave voluntarily; and, further, that the "5-year rule" in s 7(1) of the 1971 Act n2 which might (if the appeal were allowed) preclude any subsequent deportation of A, was not a relevant consideration on A's appeal. On the appeal of the Secretary of State from the decision of the adjudicator it was submitted (i) that a person lawfully resident in the United Kingdom though subject to restriction was for the purpose of s 7(1) n2 of the Immigration Act 1971 'ordinarily resident' in the United Kingdom; (ii) that in deciding whether deportation was a proper course (under s 3(5)(a) n1) it was a relevant consideration that a person 'ordinarily resident' would after 5 years become exempt from deportation under s 7(1) n2. The Tribunal was referred to the interpretation of relevant sections in the Act of 1971 given by the Master of the Rolls in R v Governor of Pentonville Prison, ex p Azam ([1973] 2 All ER 741). In that case LORD DENNING, MR, referred to the position of a person who might have entered lawfully on a permit for a limited period and then overstayed his time. The Master of the Rolls on reviewing ss 2(3)(d) n3, 3(5)(a) n4, 7(1)(b), 7(2) n5 and 33 n6 held that the Immigration Act 1971 had enacted that such a person was to be regarded as ordinarily resident here, and liable to deportation unless he had been here for 5 years or more (see pp 94-95, post). n2 Section 7, so far as material, provides: "(1) Notwithstanding anything in s 3(5)... above but subject to the provisions of this section, a Commonwealth citizen... who was such a citizen at the coming into force of this Act and was then ordinarily resident in the United Kingdom --... (b) shall not be liable to deportation under s 3(5) (a)... if at the time of the Secretary of State's decision he had for the last five years been ordinarily resident in the United Kingdom and Islands;...

"(2) A person who has at any time become ordinarily resident in the United Kingdom or in any of the Islands shall not be treated for the purpose of this section as having ceased to be so by reason only of his having remained there in breach of the immigration laws."

n3 Section 2(3)(d) of the Immigration Act 1971 is set out in footnote 15, post. n4 Section 3(5)(a) is set out in footnote 1, ante. n5 The material provisions of s 7 are set out in footnote 2, ante. n6 See footnotes 15 and 16, post. The Tribunal, following that interpretation of the Act of 1971, Held: (i) A, having entered the United Kingdom lawfully on 30.3.68 was to be regarded as ordinarily resident here under s 7(2) n7 even though he had remained here in breach of the immigration laws; n7 Section 7(2) is set out in footnote 2, ante. (ii) though liable to deportation under s 3(5)(a) n4, A would be exempt from deportation under s 7(1)(b) n8 if he remained here for 5 years; n4 Section 3(5)(a) is set out in footnote 1, ante. n8 Section 7(1)(b) is set out in footnote 2, ante. (iii) bearing in mind that the maintenance of an effective immigration control was amongst the objects of the Act of 1971 and the rules made thereunder, the fact of exemption from deportation after 5 years' ordinary residence under s 7(1)(b) n8 was a most relevant consideration for the Secretary of State when deciding whether deportation under s 3(5)(a) was the proper course in A's case on 28.3.73; and n8 Section 7(1)(b) is set out in footnote 2, ante. (iv) in the light of A's persistent failure over a period of nearly 5 years to comply with the immigration rules the Secretary of State had exercised his discretion properly in following the normal course under the deportation provision in para 42 of H.C. 80 n9. n9 Paragraph 42 of H.C. 80, under the heading 'Deportation for breach of condition or unauthorised stay', is in the following terms:

"42. Deportation will normally be the proper course where the person has persistently contravened or failed to comply with a condition or has remained without authorisation. (So also where he has been recommended for deportation on conviction of entering the United Kingdom unlawfully.) But full account is to taken of all the relevant circumstances before a decision is reached."

Counsel:

R. W. B. Hurley for the appellant Secretary of State. C. O. Richards of the United Kingdom Immigrants Advisory Service, for the respondent Mr Aluko. PANEL: P. N. Dalton Esq (Vice-President), B. J. S. Edmond Esq, A. S. W. Newman Esq.

Judgment One:

THE TRIBUNAL: The appellant in this case is the Secretary of State and the respondent is Mukaila Adio Aluko, a citizen of Nigeria born on 8 June 1940. Mr Aluko, who was not in possession of an entry certificate, arrived in the United Kingdom on 30 March 1968 and was admitted on condition that his stay did not exceed 6 months. He was subsequently granted extensions of stay until 16 April 1971 on verification by the Home Office of his continued and satisfactory attendance in full-time studies in marketing management at Modern Training in Management and Salesmanship Ltd. Subsequently an application on his behalf to the Home Office for a residential permit to enable him to supervise property in this country was refused, but further extensions of stay as a student until 30 May 1972 were granted. On 27 June 1972 the respondent requested a further extension of stay as a student, and he was asked to furnish information about his examination results and his future plans. The respondent did not do so though a further letter was sent to him at the end of September 1972, and his application was refused in December 1972 as he was no longer fulfilling the conditions relating to full-time students. Mr Aluko did not appeal against this decision but in January 1973 he applied for an extension of stay as a student. He submitted evidence that he had resumed studies on 9 October 1972 and a guarantee of maintenance. In considering this application the Secretary of State reviewed the respondent's student record. This showed that between September 1968 and January 1973 Mr Aluko on 6 occasions, amounting to some 165 days, had remained in the United Kingdom in breach of his conditions of admission and that he had already had two opportunities to take his final examinations in marketing but without success. In view of the facts the Secretary of State was not satisfied that the respondent's application to remain for further studies stemmed from any realistic expectations of achieving success at the next sitting of his final examination or that he intended to return to Nigeria when the proposed course and examination were completed in May 1973. His application was therefore refused on 31 January 1973 but he was granted an extension to 7 March 1973. The respondent informed the Home Office that he did not intend to appeal but to enlist the support of the press and his Member of Parliament. He did not appeal nor embark on the expiry of his permitted stay and the Secretary of State was satisfied that Mr Aluko would not leave this country voluntarily. After considering all the relevant circumstances the Secretary of State decided to make a deportation order under s 3(5)(a) of the Immigration Act 1971 n10. Before he could be notified of the decision, he submitted on 16 March 1973 an out-of-time notice of appeal against the refusal of 31 January 1973. The appeal before the adjudicator (Mr E. J. T. Housden) covered two issues, the first of which being whether the appellant's notice of appeal of 16 March (TH/1944/73) was out of time. Mr Housden had no hesitation in finding that that appeal was out of time and that there were no special circumstances making it just right to allow the appeal to proceed to a hearing. This issue does not concern the Tribunal. The second issue before the adjudicator was the appeal dated 2.4.73 from the decision of the Secretary of State to make a deportation order in respect of Mr Aluko under 3(5)(a) n10 of the Immigration Act 1971. Mr Housden heard the evidence of the respondent and the submissions made by the parties' representatives. n10 Section 3(5)(a) of the Act of 1971 is set out in footnote 1, ante. In his determination Mr Housden set out the facts and said that there was no doubt in his mind that Mr Aluko had not complied with the immigration rules, but he had considerable doubt whether his non-compliance ought to result in his deportation rather than his voluntary departure. The relevant provisions of H.C. 80 were then considered in relation to the facts and Mr Housden said that he was inclined to think that the Home Office acted with precipitate haste because of the "5 year rule." He then said: --

"I wish to make it clear that I am not suggesting that Mr Aluko should be allowed to remain in this country. He has not complied with the immigration rules and he must leave. But I think that the facts of his case do not warrant the decision of last resort to deport him. It is a pity that he was unable to find a full-time plumbing course and must now leave before he has obtained his final qualification. However, he has obtained a City and Guilds Craft Certificate and a considerable amount of practical experience."

The adjudicator then considered the Home Office presenting officer's argument, that the appeal ought not to be allowed because if it were, Mr Aluko would have been resident in this country for 5 years and could not be deported. Mr Housden did not say in terms whether he agreed or not with such argument though he did say that is was possible that the '5-year rule' had its origin in an international agreement to which the United Kingdom was a party, but an international agreement could have no binding legal effect on the Secretary of States's power to deport and could not influence him, Mr Housden, in his decision. The adjudicator continued: --

"Finally I am inclined to agree with Miss Hatton's argument that the '5-year rule' is irrelevant to this appeal. I am required by s 19 of the 1971 Act to decide whether the decision of the Secretary of State to deport Mr Aluko was 'in accordance with the law or any immigration rules applicable to the case' and whether he ought to have exercised his discretion differently'. I do not believe that I am expected to forecast and to take into account any possible practical results of my decision."

The adjudicator on 3.9.73 allowed Mr Aluko's appeal and suggested that a period of a month would be adequate time for Mr Aluko to make arrangements for his departure and to leave the United Kingdom. The Secretary of State applied to the Tribunal for leave to appeal on the following grounds: -- "1. The adjudicator was uncertain whether or not, for the purposes of s 7(1) of the Immigration Act 1971 n11, a person may be ordinarily resident in the United Kingdom at a time when his stay is subject to conditions, but he decided that the '5-year rule' was irrelevant. n11 Section 7(1) & (2), so far as material, is set out in footnote 2, ante. 2. The adjudicator decided that Mr Aluko should leave. 3. The adjudicator's decision that Mr Aluko should leave can be enforced only if the '5-year rule' is not valid. The adjudicator should accordingly have determined on the validity of the 5-year rule before determining the outcome." Leave to appeal was granted. Mr Hurley submitted to the Tribunal -- "1. A person lawfully resident in the United Kingdom though subject to restriction is for the purpose of s 7(1) of the Immigration Act 1971 ordinarily resident in the United Kingdom. n11 n11 Section 7(1) & (2), so far as material, is set out in footnote 2, ante. 2. In deciding whether reportation is a proper course a relevant consideration is that a person ordinarily resident will after 5 years become exempt from deportation." Mr Hurley referred us to the judgment of LORD DENNING, MR, in the case of R v Governor of Pentonville Prison, ex parte Azam n12. In the course of his judgment LORD DENNING referred to persons who are "illegal entrants" and persons who are treated as "settled" in this country under the 1971 Immigration Act and then went on to say n13; n12 [1973] 2 All ER 741. n13 Ibid, at p 750.

"(iii) Special provision was made (in the 1971 Act) for people who entered lawfully on a permit for a limited period and overstayed their time. They were not illegal entrants under s 33(1) n14. Having entered lawfully, this subsequent 'remaining' here did not convert them into 'illegal entrants'. But they were not 'settled' here: see ss 2(3)(d) and 33 n15. Such a person was put in a better position than an 'illegal entrant'. He was specially catered for. He was regarded as ordinarily resident here, even though he had remained here in breach of the immigration laws: see s 7(2) n16. He could not be deported on the ground that his presence was not conducive to the public good. See ss 7(1)(a) and 3(5)(b). But he could be deported on the ground that he had overstayed his time (see s 3(5)(a)) n17, unless he had been here for five years or more: see s 7(1)(b) n18."

n14 In s 33(1) of the 1971 Act, the interpretation section, "illegal entrant' means a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes also a person who has so entered". n15 Paragraph (d) of s 2(3) of the 1971 Act reads: "(d) subject to s 8(5) below, references to a person being settled in the United Kingdom and Islands are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain." Under s 33(1) of the 1971 Act it is provided that "settled" shall be construed in accordance with s 2(3)(d) above. n16 Section 7(2), which is set out in footnote 2, ante, provides an exception to the declaration in s 33(2), which reads:

"33(2). It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom or in any of the Islands at a time when he is there in breach of the immigration laws."

n17 Section 3(5)(a) is set out in footnote 1, ante. n18 Section 7(1)(b) is set out in footnote 2, ante. Following the above interpretation of the 1971 Act, we agree with Mr Hurley's submission. Bearing in mind that amongst the objects of the 1971 Act and the rules made thereunder, is the maintenance of an effective immigration control, the fact of exemption from deportation after 5 years' ordinary residence, is in our view a most relevant consideration in a case such as this. Rule 42 of H.C. 80 provides that

"deportation will normally be the proper course where the person has persistently contravened or failed to comply with a condition or has remained without authorisation."

In this case the adjudicator has not thought that deportation is the proper course, even though the respondent should go because he has not complied with the immigration rules, and considers that the Secretary of State should have exercised his discretion differently. It seems to us that the only way the Secretary of State could have used his direction differently was not to make a deportation order, but in view of the respondent's past record a person would indeed be credulous if he believed that the respondent would leave this country of his own accord before he had been here 5 years. Mr Richards submitted that there is no power in the 1971 Act or the Rules to use deportation merely because a person is approaching the five-year period of ordinary residence, and Mr Hurley does not quarrel with that submission. But that is not this case. This is a case of failure to comply with the immigration rules, and the Secretary of State in following the normal course has, we consider, properly exercised his discretion. This appeal is therefore allowed.

DISPOSITION:

Appeal allowed.

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