Secretary of State for the Home Department v. Yuksel and Another

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v YUKSEL AND ANOTHER, TH/9921-2/75(600)

Immigration Appeal Tribunal

[1976] Imm AR 91

Hearing Date: 4 February 1976

4 February 1976

Index Terms:

Deportation -- Decision to make deportation order -- Appeal to adjudicator -- Relevant circumstances on appeal -- Whether disturbed political situation in receiving country (Cyprus) a 'relevant circumstance' -- Discretion -- Jurisdiction exceeded if appeal allowed solely with view to postponing implementation of Secretary of State's decision -- Immigration Act 1971, s 3(5)(a), s 5(1) -- HC 80, paras 38, 39, 42.

Held:

Y and his wife were citizens of Cyprus from the Turkish community. They entered the United Kingdom in 1973, and they became liable to deportation under s 3(5)(a) of the Immigration Act 1971 for remaining beyond the time limited by their leave to enter. On their appeal under s 15(1)(a) of the Act against the decision of the Secretary of State to make deportation orders against them, the adjudicator found that they had entered as visitors with the intention of settling here as a family and that they had remained 'in complete disregard and by wilful evasion of the immigration laws'. The adjudicator, however, allowed their appeals against the Secretary of State's decision because he considered that the current political situation in Cyprus made their present return there inappropriate, and that this was a 'relevant circumstance' under para 42 of HC 80. n1 n1 Paragraph 42 of HC 80 is set out in footnote 5, post. On appeal to the Tribunal by the Secretary of State, Held (allowing the appeal): (i) the jurisdiction of an adjudicator in an appeal under s 15(1)(a) of the Immigration Act 1971 against "a decision of the Secretary of State to make a deportation order" against a person liable to deportation "by virtue of s 3(5)" was confined to determining in accordance with s 19(1) of the Act, first whether the decision to make the order was "in accordance with the law or with any immigration rules applicable to the case", and secondly whether the Secretary of State's "discretion should have been exercised differently"; (ii) for this purpose the adjudicator had to take into account the considerations set out in the Immigration Rules, in the instant case those applicable to Commonwealth citizens, paras 38, 39 and 42 in HC 80; n2 n2 Paragraphs 38 and 42 are set out in footnote 5, post; paragraph 39 states, inter alia, that "deportation may be the appropriate course" in cases in which the person is "remaining here in defiance of immigration control". (iii) it did not appear that the adjudicator in applying those rules had found any "compassionate circumstances" arising from conditions in Cyprus (such as might perhaps affect a student whose funds from Cyprus were interrupted) or, if he did find any, that they outbalanced the "public interest"; (iv) the adjudicator had accordingly misdirected himself in allowing the appeals, for it was a wrong use of discretionary power to allow an appeal not because of the merits of the case but in order to assume jurisdiction to order a stay. Per curiam: Whether the Secretary of State implemented his decision to make the deportation orders in the present case, or when he implemented it, was a matter for him and not for the appellate authorities.

Introduction:

The facts are set out in the determination below.

Counsel:

K. E. R. Rogers for the appellant Secretary of State. R. Yajnik, counsel for the respondent citizens of Cyprus. PANEL: A. Hooton Esq (Chairman), L. Golding Esq, J. A. Noble Esq.

THE TRIBUNAL

Judgment One:

THE TRIBUNAL: The appeal was against the determination of an adjudicator (Mr M. Patey) allowing the appeals of the respondents against the decision of the appellant to make deportation orders against them by virtue of s 3(5)(a) of the Immigration Act 1971. Both respondents are citizens of Cyprus. The first respondent arrived in this country on 17 May 1973 holding an entry certificate endorsed "Visit" and a return ticket to Cyprus. He said the purpose of his visit was to spend 15-20 days visiting his mother and brothers. He was admitted for one month on condition that he did not enter employment or engage in any business or profession. An extension of stay on the same condition was granted on 13 June 1973. Mr Mustafa Yuksel said that he was staying with a brother and produced @ 150 as evidence of his ability to support himself. He said he was on paid leave from his employment as a driver in Cyprus and added that he was a married man with 4 children. The second respondent, Mrs Sayime Yuksel, the wife of the first respondent, arrived in the United Kingdom on 27 June 1973 with two of their sons. She was also in possession of an entry certificate endorsed "Visit" and return tickets to Cyprus. She said they had come to spend one month visiting her sister. She was admitted for one month, on the same condition as had been imposed on her husband. It may be mentioned here that the respondents' daughter and another son subsequently arrived in this country. No applications for variations of the respondents' leave to enter were received on expiry of the respective periods of their stays. The Home Office was unable to contact them at their last known addresses. As a result of police enquiries, they were eventually arrested, the first respondent on 5 September 1974 and the second respondent on 11 September 1974, and fined@ 10 and @ 5 respectively by the Tower Bridge Magistrates Court on 4 December 1974 on charges of knowingly overstaying their leave in the United Kingdom. n3 No recommendation for deportation was made, the magistrate stating that in view of the political situation in Cyprus he would leave that matter to the Secretary of State. n3 Under s 24(1)(b) of the Immigration Act 1971. Subsequently, on 28 January 1975, Mr and Mrs Yuksel wrote to the Home Office stating that they were living and working in the United Kingdom and asked if they should forward their passports for further endorsement. On 5 May 1975 they again wrote, submitting their passports for further extension of stay adding that they intended to take a trip to Turkey. The Secretary of State took a serious view of the respondents' previous disregard of the immigration requirements and was not prepared to entertain further applications to stay; he also took a serious view of their convictions for knowingly overstaying their leave and, bearing in mind the need to maintain an effective immigration control, he decided to make a deportation order. n4 Notices of this decision were served on the respondents on 3 June 1975; these notices stated that the Secretary of State was satisfied that the first respondent had remained without authority since 17 September 1973 and that the second respondent had so remained since her conditions of admission (one month from 27 June 1973) expired. n4 Under s 3(5)(a) of the Immigration Act 1971, set out on p 94, post. The respondents appealed to an adjudicator against this decision, as also did three of their children against refusals to extend their stays. The adjudicator after summarising the facts reviewed the evidence before him, noted the provisions of s 3(5)(a) of the 1971 Act and of paras 38 and 42 of HC 80 n5 and concluded his determination as follows: n5 Paragraphs 38 and 42 of HC 80 provide as follows:

"38. In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects."

"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 be taken of all the relevant circumstances before a decision is reached."

"I am fully satisfied from the totality of evidence before me that the appellants were determined, certainly from the time the first appellant arrived here, to settle in this country as a family in complete disregard and by wilful evasion of the immigration laws. Clearly none of the appellants have any claim to permanent residence in this country nor indeed to any extension of stay. In these circumstances I have no option but to dismiss the appeals by the three minor appellants. The matter of the decision to deport Mr and Mrs Yuksel is however a separate issue. Although the rules quoted above state that deportation will normally by the proper course where a person has remained here without authorisation, it is specifically stated that all relevant circumstances are to be taken into account before a deportation order is made. I must accept that the current political or social situation in the receiving country is most certainly a relevant circumstances. It is also, I consider, very significant that the present Home Office policy has apparently accepted that it is not at the present time appropriate to remove persons of Turkish Cypriot origin whose homes are in the Greek controlled area back to Cyprus. When the situation in that island has improved to the extent that such persons can be reasonably expected to return, the Secretary of State would be more than amply justified in making a deportation order against the appellants but at the present time I do not consider that it would be proper to do so. I shall therefore allow the appeals by the first two appellants, Mr and Mrs Yuksel. They should however appreciate that this decision is in effect only a stay on the making of a deportation order which will, I presume, be made as soon as circumstances in Cyprus permit." The adjudicator granted leave to appeal. The written grounds are as follows: "i. Having found that the Secretary of State would at some future time be more than amply justified in making a deportation order against them, the adjudicator erred in refusing to confirm the Secretary of State's decision considering that it would not be proper to do so at the present time. ii. The adjudicator erred in finding that the political or social situation in the receiving country was a relevant circumstance to be taken account of before a decision to make a deportation order is reached." During the hearing before us Mr Rogers abandoned the second ground of appeal as worded and argued that the adjudicator having made the findings he did in the penultimate paragraph of his determination and having found in his final paragraph that the Secretary of State would be justified in making deportation orders when the situation in Cyprus had improved, erred in not confirming the decision to make orders. We fully agree with the adjudicator's finding on the facts in his penultimate paragraph. Section 3(5)(a) of the Immigration Act 1971 provides that: "A person who is not patrial shall be liable to deportation... (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." It is indisputable that the respondents are liable to deportation under this provision. A right of appeal to an adjudicator is conferred by s 15(1)(a) of the 1971 Act against "a decision of the Secretary of State to make a deportation order... by virtue of s 3(5)" and not against the deportation order when made. The distinction between the decision to make the order and the order itself clearly appears in s 15(2) which provides inter alia that a deportation order shall not be made by virtue of s 3(5) so long as an appeal against the decision to make it is pending. The jurisdiction of an adjudicator is confined to determining whether the decision to make the order is "in accordance with the law or with any immigration rules applicable" and whether the Secretary of State's "discretion should have been exercised differently" (s 19(1)). In so determining an adjudicator must take into account the considerations set out in the relevant immigration rules. These include both the rules cited by Mr Patey in his determination and also para 39 of HC 80 which provides that "deportation may be the appropriate course" in cases where persons remain here "in defiance of the immigration control". In other words, before affirming a decision to make a deportation order, an adjudicator must determine whether the proposed subject of the order is liable to deportation and then if the answer to this is "yes", is his conduct, having regard to all the circumstances and taking account of the public interest, such that he ought to be deported? The Secretary of State cannot make the deportation order itself in a case like the present one until the checks against misuse or arbitrary use of his powers provided by the appeals system have been exhausted. If no appeal is lodged, or if the appeal is dismissed, then the order itself is submitted to the Secretary of State for his signature with "a summary of the facts" and "a note of any other relevant information, whether or not it was available to the courts or the appellate authorities" (para 52 of HC 80). Whether he implements his decision to make the order, or when he implements it is a matter for him and not for the appellate authorities. n6 There is no power in the appellate authorities to order a stay on the making of a deportation order and it is a wrong use of discretionary powers to allow an appeal against a decision to make an order, not because of the merits of the case, but in order to assume jurisdiction to order a stay. n6 Deportation orders are made by the Secretary of State under s 5(1) of the Immigration Act 1971, and Schedule 3 to the Act contains the provisions relevant when directions for removal are given by the Secretary of State in respect of a person against whom a deportation order is in force. For these reasons we find that the adjudicator misdirected himself in the final paragraph of his determination. Counsel for the respondents has argued that the political situation in Cyprus is a 'relevant circumstance' which the Home Office should have taken into account, by virtue of para 42 of HC 80 before the decision to deport was reached. We accept that all relevant circumstances must, by virtue of para 42 of HC 80, be taken into account before a decision to deport is reached. n7 It is possible that compassionate considerations may in some cases spring from the political situation in the country of which a person permitted to enter the United Kingdom for a temporary purpose is a citizen. For example, a student who has failed to comply with his obligation to follow a full course of study might wel plead in mitigation non-receipt of funds as a result of civil commotion in his home country. In the present appeal, however, the terms used by the adjudicator in the last two paragraphs of his determination do not suggest that he has found any "compassionate circumstances" arising from conditions prevailing in Cyprus or, if he did find any, that they out balanced the "public interest". Our own view of the evidence is that in this case there were no circumstances flowing from the political situation in Cyprus which outweighed that interest. n7 Paragraph 42 is set out in footnote 5, ante. For these reasons, we find that the Secretary of State's decision to make deportation orders against both respondents was in accordance with the law and the immigration rules applicable and that his discretion was correctly exercised. We have noted the earlier decision of the Tribunal in the case of Ahmed Mustafa and others n8 where it was accepted that the appellants in that case would be returned to that part of Cyprus controlled by their own community. Mr Rogers in the course of his submission in the present appeal assured us that it was not the policy of the Secretary of State to return Turkish Cypriots to that part of Cyprus which is controlled by the Greek Cypriot population. In these circumstances it would be superfluous for us to make any recommendations on the matter. n8 TH/1003-9/75(449).

DISPOSITION:

Appeal allowed.

SOLICITORS:

Thos. Boyd Whyte, Bexleyheath, Kent.