Secretary of State for the Home Department v. Enorzah

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v ENORZAH, TH/3884/73(267)

Immigration Appeal Tribunal

[1975] Imm AR 10

Hearing Date: 14 March 1974

14 March 1974

Index Terms:

Deportation -- Remaining in the United Kingdom 'without authorisation' -- Fresh application for extension of stay as student after dismissal of appeal against previous refusal of student extension -- Letter sent acknowledge fresh application and authorising continued stay pending decision on application -- Authorisation not withdrawn when notice of intention to make deportation order served -- Decision to make deportation order on grounds given not open to immigration authority -- Immigration Act 1971, s 3(5)(a).

Practice and procedure -- System of immigration control -- Application for student extension -- Previous application for student extension refused and appeal against refusal dismissed by appellate authorities -- Whether Secretary of State may refuse to entertain immediate further application not materially different from that previous application.

Student -- Extension as student applied for following dismissal of appeal against refusal of similar application -- Whether Secretary of State may refuse to entertain immediate further application not materially different from that previous application.

Held:

E, a citizen of Ghana, entered the United Kingdom as a student in August 1968 when 27 years of age. In November 1972 an application for an extension of his stay as a student was refused, and E's appeal against that refusal was dismissed by an adjudicator in April 1973 and by the Tribunal on 13.8.73. On 14.8.73 E applied again for an extension as a student, enclosing his passport and other particulars. His application was acknowledged by a formal letter in routine form which contained these words, "this acknowledgment may be regarded as authority for the holder to remain in the United Kingdom pending a decision on any application for an extension of stay". On considering the particular circumstances of E's case, however, the immigration authority took the view that E's application for a student extension immediately after the Tribunal's dismissal of his appeal against the previous refusal of a student extension 'made a mockery of the appeals system and indeed of the whole immigration control', and the Secretary of State was therefore 'not prepared to entertain the application'. On 28.8.73 a notice of intention to make a deportation order was served on E on the ground that, since the dismissal of his appeal, E had 'remained in the country without authorisation'. n1 n1 Under s 3(5)(a) of the Immigration Act 1971 a person (other than a patrial) who remains 'beyond the time limited by the leave' to enter or remain makes himself liable to deportation. E appealed to an adjudicator, and his appeal against the decision to make a deportation order was allowed in the light of the wording of the letter which acknowledged receipt of his application. The adjudicator also expressed the view that the immigration authority could not in law refuse to entertain an application even though the application might be vexatious or intended merely to gain time. On the appeal of the Secretary of State against the adjudicator's decision on the deportation issue it was submitted to the Tribunal that by making a further application on the day following the dismissal of his appeal by the Tribunal E had shown he had no intention of leaving the country, and that since he had been here nearly 5 years the decision to make a deportation order was a proper one. It was, however, conceded that there was some doubt about the legality of the notice of intention to deport on the grounds of unauthorised stay, but it was questioned whether the 'routine form of acknowledgment sent by a junior official's bound the Secretary of State; it had not been appreciated on 28.8.73 that such an acknowledgment had been sent on 20.8.73. For E, it was submitted that the decision to make a deportation order on 28.8.73 was improper on the grounds given for it, and that although there might have been a pattern of deceit such previous conduct was not a proper ground on which to decide to make a deportation order. Both the parties' representatives asked for a ruling on whether the Secretary of State was under an obligation to consider every application for a variation of conditions. Held: the appeal of the Secretary of State would be dismissed because for technical reasons arising from the wording of the letter to E of 20.8.73 it was not open to the appellant on 28.8.73 to decide to make a deportation order on the grounds that E had since 13 August 1973 remained here without authorisation. The ruling requested by the parties' representatives is set out on p 15, post.

Counsel:

R. W. B. Hurley for the appellant Secretary of State. M. J. Belloff, counsel for the respondent. PANEL: Sir Derek Hilton (President), Mrs L. Bonham-Carter, R. S. Charnley Esq.

Judgment One:

THE TRIBUNAL: This appeal by the Secretary of State was against the determination of an adjudicator (Mr E. J. T. Housden) allowing the appeal of the respondent against the decision to make a deportation order in respect of the respondent under s 3(5)(a) of the Immigration Act 1971." The respondent Mr Leo Degraft Enorzah, a citizen of Ghana born on 16 August 1941, had an application for variation of his conditions to be allowed to remain in this country as a student refused on 3 November 1972. He appealed against that decision and his appeal was dismissed by an adjudicator on 12 April 1973 and by the Tribunal on 13 August 1973. On 14 August 1973 the respondent applied again for an extension of stay as a student and, together with his passport, he sent to the Home Office evidence of his means and of his acceptance as a full-time student by West London College on a course commencing on 19 September 1973. The application was acknowledged by the Home Office by letter dated 20 August 1973 in which it was stated that the matter was receiving attention. The final paragraph of the letter read: --

"Meanwhile this acknowledgement may be regarded as authority for the holder to remain in the United Kingdom pending a decision on any application made for an extension of stay."

The present appellant's reaction to Mr Enorzah's further application is set out in para 3 of the Home Office statement: -- "3. The appellate authorities, at both levels, had upheld the Secretary of State's refusal to extend the appellant's stay in the United Kingdom as a student on the ground that the did fulfil the requirements for a student laid down in the relevant immigration rules (Cmnd 4295, para 14, taken, in conjunction with para 4). The Secretary of State took the view that, at any rate in the particular circumstances of this case, to submit an application for extension of stay as a student, immediately after the dismissal by the Tribunal of the appeal against his previous refusal to grant an extension for that purpose, was to make a mockery of the appeals system, and indeed of the whole immigration control; and he was not prepared to extertain the application (attached as Annex A). Indeed, he could only regard this application as the clearest possible proof that the appellant had no intention of voluntarily leaving the United Kingdom following the dismissal of his appeal against the refusal of the Secretary of State to grant him an extension." For the reasons set out in the statement the Secretary of State decided to make a deportation order in respect of Mr Enorzah and to give directions for his removal to Ghana, and notice of such intention was served on 28 August 1973 in the following terms: -- "You were admitted to this country on 30 August 1968 for 12 months as a student and your leave to enter was subsequently varied so as to permit you to remain here until 29 August 1972. On 3 November 1972 your further application to remain here as a student was refused and your stay was extended to 3 December solely to enable you to make arrangements to leave the county. The Secretary of State is satisfied that since your appeal was finally determined, on its dismissal by the Immigration Appeal Tribunal on 13 August 1973, you have remained in this country without authorisation. The Secretary of State has therefore decided to make an order by virtue of section 3(5) of the Immigration Act 1971 requiring you to leave the United Kingdom and prohibiting you from entering while the order is in force. He proposes to give directions for your removal to Ghana." Mr Enorzah appealed against that decision, one of his grounds of appeal being that his application for an extension was presently receiving attention. The comments of the Home Office on the grounds of appeal, contained in para 7 of the statement, read: --

"7. With regard to the first point in the grounds of appeal, the Secretary of State concedes that the last paragraph of the Home Office acknowledgment annexed to the appeal (which was sent in the circumstances outlined in para 2 above) could fairly be read as meaning that the appellant had authority to remain in the United Kingdom pending a decision on his application for an extension made on 14 August 1973 (Annex A); and that, this being so, the words 'you have remained in this country without authorisation' should not have been used in the notice of intention to deport (Form App 104). At the same time, for the reasons explained in para 3 above, the Secretary of State is not prepared to consider any fresh application from the appellant for an extension of his stay; and the decision to deport him is maintained."

After hearing evidence from Mr Enorzah and other witnesses the adjudicator allowed his appeal as he considered that he could reasonably have believed that he was under no obligation to leave while his application was pending and in those circumstances he thought that the Secretary of State ought to have exercised his discretion differently. As to refusal of the Secretary of State to consider the application of 14 August 1973 the adjudicator said in his determination: -- "I am aware that the Secretary of State considers Mr Enorzah's fresh application on 14 August to be tantamount to a refusal to leave, but in making his application Mr Enorzah was doing no more than he was entitled to do. If the Secretary of State wanted Mr Enorzah to leave the United Kingdom promptly after the Tribunal's determination he ought not to have sent Mr Enorzah an acknowledgement giving him permission to stay. I fully understand the difficulty of the Secretary of State's position. As Mr Norbury puts it, if all fresh applications were entertained, and each time an appeal was dismissed the immigrant concerned put in another application, supported by new evidence, where would this process end? It would be technically possible for an immigrant, whose case to stay here was largely without merit, to prolong his stay for months, perhaps even for years, by making use of the appeals system. On the other hand, if the Secretary of State is able to choose which applications he will entertain and which he will not even listen to, on the grounds that they arr 'vexatious' or intended merely to gain time for the applicant, he becomes judge in his own cause. It was principally to remove this power from the hands of the Secretary of State to those of the appellate authorities that the immigration appeals system was set up. The Secretary of State's refusal to entertain an application seems to me to run contrary to the intention of Parliament in establishing an appeals system." The Tribunal granted the present appellant leave to appeal on the following grounds: --

"That the adjudicator, in not distinguishing between the giving of a notice of intention to make a deportation order, and the making of a deportation order, allowed the appeal of Mr Enorzah who has no claim to remain further in this country under the Immigration Rules."

Later the appellant filed the following further ground of appeal: --

"The Secretary of State is under no obligation to entertain a further application which is not materially different from an application he has already refused after the refusal has been upheld by the appellate authorities. The adjudicator erred in concluding otherwise."

At the hearing of the appeal before us Mr Hurley submitted that the adjudicator failed to differentiate between the making of a deportation order and a decision to deport. Notice of a decision to deport was a warning to an immigrant and there was nothing to prevent him from leaving voluntarily. By making a further application on the day following the dismissal of his appeal by the Tribunal Mr Enorzah had shown that he had no intention of leaving the country and as he had been here for nearly five years the Secretary of State rightly decided to make a deportation order in order to maintain an effective control (see Secretary of State for the Home Department v Aluko n2). n2 [1974] Imm. A.R. 90; TH/2464/73(236). Mr Hurley asked the Tribunal to make a finding on the second ground of appeal. The principle involved was of some importance. In his submission the Secretary of State should consider every application unless it was in similar terms to one already refused and dismissed on appeal. In this case the Secretary of State was justified in refusing to consider Mr Enorzah's further application and in deciding to make a deportation order. In reply Mr Belloff submitted that the Secretary of State had erred in deciding to make a deportation order. Although there might have been a pattern of deceit in this case, what happened previously was not relevant and was not a proper ground on which to decide to make a deportation order. He also asked us for a ruling as to whether the Secretary of State had power to refuse to consider an application for variation of leave to enter. In his submission there must be a duty to consider the facts of each particular application, otherwise a fetter would be placed on the applicant. Mr Belloff further submitted that there was no power to make a decision on 28 August 1973 to deport Mr Enorzah on the grounds that since 13 August 1973 he had remained in this country without authorisation. He applied on 14 August 1973 to stay as a student, under circumstances which had materially changed, and on 20 August 1973 the Home Office wrote authorising him to remain here pending consideration of his application. Before a decision could have been made the Secretary of State should have first withdrawn the leave to remain. He had tried to telescope the matter. Mr Belloff acknowledged that he was raising a technical matter and accepted that the mistake in the Home Office was no doubt a genuine one but nevertheless it was most material. In answer to Belloff's submission Mr Hurley accepted that there was some doubt about the legality of the notice of 28 August 1973. It had not then been realised that the letter of 20 August had been sent to Mr Enorzah. Such letter was a routine form of acknowledgment sent by a junior official in the Home Office and it was for consideration whether it bound the Secretary of State. Whatever the merits of the appeal by the Secretary of State, we feel bound to accept the submission made to us by Mr Belloff that for technical reasons it was not open to the appellant to decide on 28 August 1973 to make a deportation order in respect of the respondent on the grounds that since 13 August 1973 he had remained here without authorisation when he was in possession of a letter written to him on 20 August 1973 on behalf of the Under-Secretary of State authorising him to remain in this country pending a decision on his application for an extension of stay. There is no evidence before us that such authorisation had been withdrawn before 28 August 1973. For these reasons we dismissed the appeal. n3 n3 The decision in this appeal was distinguished on its facts in Islam's Case, reported at [1975] Imm AR 106. We have been asked by both parties to give a ruling on the question raised in the second ground of appeal, namely, whether the Secretary of State is under an obligation to entertain a further application which is not materially different from an application he has already refused after the refusal has been upheld by the appellate authorities. Parliament has established through the Immigration Act 1971, which replaced previous legislation, a system of United Kingdom immigration control but there does not appear to be any provision in the immigration law or Rules to compel the Secretary of State to entertain and consider every application made to him to vary leave to enter, or an immigration officer to entertain and consider every application for leave to enter. In our view, however, in order to ensure that the system of control is operated in a fair and efficient manner and in compliance with the rules of natural justice an application should normally be considered, but if in the opinion of the Secretary of State or of an immigration officer any application amounts to a repetition of a previous application on similar grounds which had been refused and such refusal had been upheld by the appellate authorities we consider that there is an inherent right to refuse to consider such application on the basis of res judicata. Were this not so an immigrant after having had his application refused and his subsequent appeal dismissed by the appellate authorities could make further applications on similar grounds and, if he were in this country, remain here indefinitely while such applications were being considered and after refusal during the currency of subsequent appeals. We consider that such action, whether or not the immigrant were in this country, could only amount to an abuse of the system of immigration control.

SOLICITORS:

David D. H. Burcher.