Rehman v. Secretary of State for the Home Department

REHMAN v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/21623/77(1110)

Immigration Appeal Tribunal

[1978] Imm AR 80

Hearing Date: 12 January 1978

12 January 1978

Index Terms:

Deportation -- 'Five-year rule' -- Pakistan citizen -- Transitional provisions applicable to Pakistan citizens on their ceasing to be Commonwealth citizens -- Pakistan Act 1973, s 1(1), sch 3 para 1(1) & (2) -- Immigration Act 1971, ss 3(5)(a), 5(1), 7(1)(b).

Deportation -- Notice of intended deportation -- Decision to make deportation order evidenced in preamble to Secretary of State's 'authority for detention' dated 22 August 1977 -- Notice of decision dated and given to appellant on 10 November 1977 -- Requirement in Notices Regulations that notices of appealable decisions taken be given "as soon as practicable" -- Whether inference of law that decision to deport made on 10 November 1977 -- Date of decision a matter of fact -- Immigration Appeals (Notices) Regulations 1972, reg 3(1).

Held:

R was a citizen of Pakistan. He was given leave to enter the United Kingdom on 29 August 1972 for 12 months. He did not obtain any extension of his leave but disappeared from official view till 6 July 1977. On 22 August 1977 the Secretary of State signed an authority for his detention and the preamble to that authority of detention stated that the Secretary of State had decided to make a deportation order against R under s 5(1) of the Immigration Act 1971. n1 A written notice of the Secretary of State's decision was dated and given to R on 10 November 1977. R appealed, and it was contended for R that the Secretary of State's decision to deport him was not made on 22 August but on 10 November. This contention was based on an inference of law which it was submitted must be drawn from reg 3(1) of the Immigration Appeals (Notices) Regulations 1972 which required that written notice of appealable decisions of the immigration authority be given to the person concerned "as soon as practicable". If the proper date of the decision to deport R was 10 November 1977 then, it was submitted, R was entitled to the exemption from deportation provided under the '5-year rule' in s 7(1) of the Immigration Act 1971. n1 Section 5(1) of the Immigration Act 1971 provides, inter alia, that where a person is under s 3(5) liable to deportation the Secretary of State may (subject to provisions which follow) make a deportation order against him. The appellant was liable to deportation under s 3(5)(a) as being a non-patrial who had remained in the United Kingdom beyond the time limited by his leave to enter or remain. Held (dismissing R's appeal), (i) No inference of law regarding the date of the Secretary of State's decision was to be drawn from reg 3(1) of the Notices Regulations, because the date on which the decision was taken was a matter of fact and not law, and the preamble to the Secretary of State's 'authority for detention' signed on 22 August 1977 showed clearly that his decision to make a deportation order preceded that authority; and (ii) furthermore (even if, contrary to (i), the date of the decision was properly 10 November 1977), section 7(1)(b) of the Immigration Act 1971 would not exempt R from deportation n2 because -- (a) though R was a Commonwealth citizen on his admission to the United Kingdom on 29 August 1972 and when the Immigration Act 1971 came into force on 1 January 1973, he ceased to be a Commonwealth citizen by virtue of s 1(1) of the Pakistan Act 1973 when that Act came into force on 1 September 1973, and the exemption from deportation contained in s 7 of the 1971 Act ceased to apply to him 12 months later by virtue of para 1(1) of sch 3 to the Pakistan Act 1973; and (b) since R had not during those 12 months applied for registration as a citizen of the United Kingdom and Colonies, the further period of exemption specified in para 1(2) of that schedule did not help him. n3 n2 The essential provisions of s 7(1)(b) of the 1971 Act appear in the determination on p 83 post. n3 The relevant provisions in the Pakistan Act 1973 are set out in footnote 4, post.

Counsel:

A. R. Asirwatham, solicitor for the appellant. W. G. Chalmers for the respondent. PANEL: A. Hooton Esq (Chairman), Miss M. F. Applebey, L. W. Chapman Esq

Judgment One:

THE TRIBUNAL: This appeal by leave of the Tribunal was against the determination of an adjudicator (Mr G. W. Farmer) dismissing the appeal of one Gul Rehman against the decision of the respondent to make a deportation order against him by virtue of s 3(5)(a) of the Immigration Act 1971. The facts giving rise to the respondent's decision may be briefly stated. The appellant is a citizen of Pakistan and is now aged nearly 32. He is a married man with a wife, two children and a dependent mother in Pakistan. He arrived in the United Kingdom, without his family, on 29 August 1972 in possession of entry clearance for employment. He was in the company of his employer, a resident of the United Kingdom, and was given leave to enter for 12 months. Before the year was up, the appellant left his employment and disappeared from official view. His employer reported him as missing on 2 June 1973 -- he had gone away taking his personal effects including his travel documents. Extensive police inquiries were made but he was not traced until 6 July 1977. During this period he had obtained a National Insurance card and employment in a factory. The Secretary of State decided to deport him, notice of this decision being served on 10 November 1977. The reasons are set out in the notice as follows:

"To Gul Rehman, 71 Heybridge Avenue, London S.W.16. You were admitted to the United Kingdom on 29 August 1972 on condition that you did not remain longer than 12 months. The Secretary of State is satisfied that you have subsequently remained here without authority, and that you do not intend to leave the United Kingdom voluntarily."

According to the Home Office Explanatory statement the respondent made this decision on 22 August 1977. On that date the Secretary of State gave his authority for the appellant's detention. Mr Chalmers produced to us the original authority, signed personally by the Secretary of State. It is in the following terms: "AUTHORITY FOR DETENTION Whereas I have decided to make a deportation order under section 5(1) of the Immigration Act 1971 against Gul REHMAN a citizen of Pakistan and he is neither detained in pursuance of the sentence or order of any court nor for the time being released on bail by any court having power so to release him, I hereby, in pursuance of paragraph 2(2) of Schedule 3 to that Act, authorise any constable at any time after notice of the decision has been given to the said Gul REHMAN in accordance with the Immigration Appeals (Notices) Regulations 1972, to cause him to be detained until the deportation order is made or an appeal against the decision under Part II of the Act is finally determined in his favour. 22 August 1977, Home Office, Whitehall (Sgd) M. Rees, One of Her Majesty's Principal, Secretaries of State." The adjudicator dismissed the appellant's appeal to him against the Secretary of State's decision, after hearing the evidence of the appellant and the submissions of his representative, Dr A. U. Khan of the Pakistan Welfare Association. He gave his reasons as follows: "The appellant remained in this country without authorisation. Under paragraph 49 of HC 82 deportation will then normally be the proper course. I have however to take account of all the relevant circumstances. I have borne in mind the appellant's statement that his opportunity to work is better in this country and that he needs the money to support his family in Pakistan. I have also noted his statement that he was poorly paid by his first employer and that he did not commit any criminal offence in relation to that employer's property. However having considered all the matters which have been urged on behalf of the appellant, it is my view that the Secretary of State exercised his discretion correctly. The appellant has no family or property here. He has no strong connections with this country. He must have known what the implications were when he obtained a National Insurance card. In my view there are no compassionate circumstances in this appeal." When the application was made for leave to appeal to the Tribunal, the written grounds submitted disputed the statement made in paragraph 5 of the Home Office explanatory statement that the appellant had made no application, after his leave to be in the United Kingdom expired, to regularise his position; it was stated that an application was sent to the Secretary of State on 3 June 1977. When the Tribunal gave leave to appeal it did so to enable argument to be heard on the allegations on those grounds and -- if necessary -- for evidence to be received. Mr Asirwatham did not, however, call any evidence on this point, and Mr Chalmers assured us that there was no record in the Home Office of any such application. Mr Asirwatham's submission to us was that the appeal turned on a point of law. He contended that the Secretary of State's decision to deport was not made on 22 August 1977 but on 10 November 1977 (the day on which notice of the decision was served on the appellant) and that therefore the appellant was exempt from deportation by reason of s 7(1)(b) of the Immigration Act 1971, which provides that a Commonwealth citizen "who was such a citizen at the coming into force of this Act (1 January 1973)" shall not be liable to deportation by reason of his overstaying "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". Mr Asirwatham's contention that the decision to deport was not made until 10 November 1977 was based on an inference which he submitted must be drawn from reg 3(1) of the Immigration Appeals (Notices) Regulations 1972, which provides that written notice of an appealable decision shall be given "as soon as practicable" to the person in respect of whom the decision was taken. We can draw no such inference. The date when the decision was made is a matter of fact and not of law, and it is clear from the preamble of the Secretary of State's "authority for detention" dated 22 August 1977, signed by Mr Rees personally, that his decision to make a deportation order against the appellant preceded that authority. Our decision as to this is sufficient to dispose of Mr Asirwatham's contention, even if he were correct, which he is not, that the appellant has the exemption from deportation accorded by 7(1)(b) of the Act to a Commonwealth citizen who has been resident in the United Kingdom for 5 years. When he arrived on 29 August 1972, and on 1 January 1973 when the Act came into force, he was such a citizen. But when the Pakistan Act 1973 came into force on 1 September 1973 he ceased, by virtue of s 1(1) of that Act, to be such a citizen; and the exemption from deportation contained in 7 of the Immigration Act 1971 ceased to apply to him twelve months later (para 1(1) of sch 3 to the Pakistan Act 1973). As he had not then applied for registration as a citizen of the United Kingdom and Colonies, the further period of exemption specified in para 1(2) of sch 3 does not help him. n4 n4 Pakistan withdrew from the Commonwealth on 30 January 1972. The Pakistan Act was passed on 25 July 1973 and came into force on 1 September 1973. Section 1(1) of the Pakistan Act 1973 is in the following terms: "In section 1(3) of the British Nationality Act 1948 (which specifies the countries whose citizens are by virtue of that citizenship British subjects) the word 'Pakistan' is hereby repealed; and accordingly any person who, immediately before the commencement of this Act, was a British subject by virtue only of his citizenship of Pakistan shall cease to be a British subject at the commencement of this Act." Schedule 3 of the Pakistan Act 1973 is headed "Further Transitional Provisions", and para 1 of that schedule is sub-titled "Exemption from deportation". Paragraph 1(1) is in the following terms: "Section 7 of the Immigration Act 1971 (exemption from deportion for certain existing residents) shall apply to a person who by virtue of section 1(1) of this Act ceases to be a Commonwealth citizen at the commencement of this Act as if the date on which he ceases to be a Commonwealth citizen were instead the date twelve months after that commencement." Sub-paragraph (2) of para 1 in sch 3 is in the following terms: "If, at the expiration of the period of twelve months mentioned in sub-paragraph (1) above, the said person is awaiting determination of an application by him for registration as a citizen of the United Kingdom and Colones, that sub-paragraph shall apply as if for the period of twelve months specified therein there were substituted a period expiring on the determination of his application.

"Nothing in this sub-paragraph shall prevent the said person's being recommended for deportation under section 3(6) of the Immigration Act 1971, but effect shall not be given to the recommendation before his application for registration is determined."

The appellant deliberately overstayed his leave to be in the country by a long period. He went to ground until eventually found by the police. On the merits of his conduct, deportation is clearly the right course of action; he has no property here and his family is in Pakistan. The evidence produced to us in the form of a medical certificate dated 9 January 1978 by a general practitioner Dr M. D. Khan, falls short of that necessary to make out a case that he is suffering from any condition which cannot be adequately treated in Pakistan or that deportation would cause danger to his health. The certificate, after referring to his condition, goes on to say that he last attended hospital in January 1976, which is two years ago; and no consultant's report has been produced in evidence. The Secretary of State properly took into account the provisions of paragraphs 40, 45 and 49 of HC 82 in coming to his decision to make a deportation order against the appellant, which decision he was in law entitled to make. His decision was in accordance with the law and the immigration rules and his discretion should not have been exercised differently. We affirm the adjudicator's determination.

DISPOSITION:

Appeal dismissed.