Villone v. Secretary of State for the Home Department

VILLONE v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/43151/79(1498)

Immigration Appeal Tribunal

[1979-80] Imm AR 23

Hearing Date: 27 April 1979

27 April 1979

Index Terms:

Deportation -- Deportation 'conducive to the public good' -- Leave to enter as visitor just granted -- Heroin then found on visitor's person by examining customs officers -- Leave to enter immediately cancelled by written notice, also refusing leave on ground that exclusion conducive to the public good -- Detention in custody pending trial some 3 months later, under Misuse of Drugs Act 1971 and Customs and Excise Act 1952 -- Conviction and sentence of imprisonment -- No recommendation for deportation made by the court -- Whether appellant could properly be subject of deportation order having regard to earlier cancellation of his leave to enter -- Immigration Act 1971, s 3(5)(b), sch 2 paras 6(2) and 8(2) -- HC 81, para 65 -- HC 82, paras 40, 48, 50.

Held:

The appellant, a citizen of the USA aged 34, was given leave to enter the United Kingdom in 1977 as a visitor for 6 months, but on subsequent examination by customs officers he was found to be carrying on his person a quantity of heroin. His leave to enter was immediately cancelled n1 and he was refused leave under para 65(b) of HC 81 on the ground that his exclusion was "conducive to the public good". He was then detained in custody till his trial some 3 months later, when he pleaded guilty to offences under the Misuse of Drugs Act 1971 and the Customs and Excise Act 1952 and was sentenced to 3 years' imprisonment. In March 1979 the Secretary of State decided that he should be deported under s 3(5)(b) of the Immigration Act 1971; it was noted that in addition to his conviction in this country he had been convicted of serious offences in the USA and was currently required to stand trial there on other offences. n1 Under para 6(2) of sch 2 to the Immigration Act 1971. See footnote 3, post. On the appellant's appeal to the Tribunal at first instance the only issue was whether he could properly be the subject of a deportation order, having regard to the cancellation of his leave to enter; his representative submitted that the appellant was not legally here and that the deportation rules in HC 82 applied only to people who had been given leave to enter. Held (dismissing the appeal): At the time of the offences charged the appellant was in this country and whether he was here legally or illegally was immaterial. Per curiam: It would indeed be strange if the Act provided that only legal entrants could be deported for reasons of public good, and persons who (as the appellant's representative put it) were 'not legally here' could not be deported. The Act did not so provide n2. [1979-80] Imm AR 23 n2 See footnote 6, post.

Counsel:

Z. Chishti of the United Kingdom Immigrants Advisory Service, for the appellant. W. G. Chalmers for the respondent. PANEL: P. N. Dalton Esq (Vice-President) A. J. Coles Esq, B.J.S. Edmond Esq.

Judgment One:

THE TRIBUNAL: The appellant, Stephen Noel Villone, a citizen of the United States of America, is appealing against a decision by the Secretary of State on 5 March 1979 to deport him by virtue of s 3(5)(b) of the Immigration Act 1971. The reason why the Secretary of State deemed it conducive to the public good to make the deportation order was that on 17 February 1978 at Reading Crown Court Mr Villone was convicted of smuggling drugs. The appellant (who was born on 26.12.43) arrived at Heathrow on 1 November 1977 and was initially granted leave to enter for six months as a visitor. However, he was then examined by Customs Officers and heroin with a market value of @ 16,000 was found secreted on him. The appellant's leave to enter was withdrawn n3 and he was refused leave to enter on the ground that his exclusion was "conducive to the public good" (para 65(b) of HC 81 refers). The appellant was then taken into custody until his trial on 17 February 1978 when he was convicted on his own plea of guilty and was sentenced to three years' imprisonment. n4 n3 Under para 6(2) of sch 2 to the Immigration Act 1971, which provides that "where on a person's examination under paragraph 2 [of sch 2, which provides for examination by immigration officers, and medical examination] he is given notice of leave to enter the United Kingdom, then at any time before the end of twelve hours from the conclusion of the examination he may be given a further notice in writing by an immigration officer cancelling the earlier notice and refusing him leave to enter". n4 The convictions were under s 5(1) of the Misuse of Drugs Act 1971 and s 304 of the Customs and Excise Act 1952. The appellant has now appealed to the Tribunal (under s 15(7) of the Act) and there is no claim that there are any merits on the facts in this appeal. It is not in dispute that between April 1973 and March 1977 the appellant had been charged in the United States on 14 separate occasions with drug offences, armed robbery, possessing an unlawful weapon, robbery and being a fugitive from justice. He had been sentenced to terms totalling 10 years' imprisonment. In addition he is currently wanted in the United States on charges of possessing stolen credit cards and a concealed weapon, having been released on bail after his arrest in March 1977. It is therefore perfectly plain that it is 'conducive to the public good' to make a deportation order against him. The short point that Mr Chishti has been asked by the appellant to put forward is that Mr Villone cannot be deported under s 3(5)(b) as he is not legally in this country, since though he was given leave to enter, immediately [1979-80] Imm AR 23 on the discovery of the heroin this leave was cancelled. This point is set out in the grounds of appeal by the appellant as follows:

"At my trial the prosecutor requested the Judge to make a deportation order against me. The Judge refused, stating he could not issue a deportation order against me as I already had been issued a refusal of leave to enter on 1.11.77, the day I arrived in England and was immediately arrested. He also stated that on completion of my sentence I would be taken to the Airport and put on a plane for the USA. He further stated that as I was refused permission to enter this country I was technically not here and he could not deport someone who was technically not here."

The power to deport a person in the circumstances present in this case is set out in s 3 of the Immigration Act 1971, the relevant provisions being: "3(5) A person who is not patrial shall be liable to deportation from the United Kingdom -- (b) if the Secretary of State deems his deportation to be conducive to the public good. (6) Without prejudice to the operation of subsection (5) above, a person who is not patrial shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so." If the judge in fact did say what is ascribed to him -- the appellant may have misunderstood what he said -- it is clear that under the Act the Court does not have the power "to issue a deportation order"; it can only make a recommendation which the Secretary of State may or may not follow. Mr Chishti argued that the deportation rules in HC 82 only apply to people who have been given leave to enter n5 and the appellant was not given leave to enter. This is not precisely true, since the appellant, as the explanatory statement shows, was initially granted leave to enter and it was after he had been admitted as a visitor that his offence of being knowingly concerned in the fraudulent evasion of the prohibition on importation of a controlled drug was detected. Be that as it may, at the time of the offences charged the appellant was in this country and whether he was here legally or illegally in our view is immaterial. It would indeed be strange if the Act provided that only legal entrants could be deported for reasons of public good and illegal entrants or, as it was put to us, 'persons who are not legally here' could not be deported. The Act does not so provide n6. n5 Paragraph 40 of HC 82 refers to s 3(5) -- (6) of the 1971 Act and to the Secretary of State's power, "if he thinks fit", to make a deportation order in the case of a non-patrial, inter alia (ii) if the Secretary of State deems the person's deportation to be conducive to the public good; (iv) if the person, after reaching the age of 17, is convicted of an offence punishable with imprisonment and the court recommends deportation. Nothing in para 40 purports to limit the Secretary of State's power to persons who were given leave to enter. Paragraph 48 of HC 82 states that "where the court has not recommended deportation there may nevertheless be grounds, in the light of all the relevant information and subject to the right of appeal, for curtailment of stay or a [1979-80] Imm AR 23 refusal of stay followed, after departure, by a prohibition on re-entry". Paragraph 50 states that most of the cases in which deportation is justified on the ground that it will be "conducive to the public good" will be "cases in which the court has convicted the person but has decided to leave the question of deportation to the Appeal Tribunal and the Secretary of State". n6 The Act does, however, restrict the Secretary of State's power to remove persons without making a deportation order. Paragraph 8 of sch 2 to the Immigration Act 1971 contains provisions for the removal from the United Kingdom of persons who have been refused leave to enter, but sub-para (2) provides that "no directions shall be given under this paragraph in respect of anyone after the expiration of two months beginning with the date on which he was refused leave to enter". That disposes of the short point argued before us and as there are no merits in the appellant's case this appeal is dismissed.

DISPOSITION:

Appeal dismissed.

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