Deva and Others v. Secretary of State for the Home Department

DEVA AND OTHERS v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/62141/80(1975)

Immigration Appeal Tribunal

[1981] Imm AR 48

Hearing Date: 12 March 1981

12 March 1981

Index Terms:

Jurisdiction -- Citizenship -- Doubt raised as to appellants' citizenship -- Appeal against a decision of the Secretary of State under the immigration law and rules (deportation for overstaying) -- Whether if citizenship of the United Kingdom and Colonies relevant adjudicator and Tribunal had jurisdiction to determine whether appellants had such citizenship -- No prior applications for certificates of such citizenship made to Secretary of State -- British Nationality Act 1948, ss 25, 26 -- Immigration Act 1971, s 19.

Citizenship -- Citizenship of the United Kingdom and Colonies -- Doubt as to appellant's citizenship raised on an appeal against a decision of the Secretary of State under the immigration law and rules -- No prior application made to Secretary of State for grant of certificate of such citizenship -- Whether jurisdiction in adjudicator and Tribunal to determine (if considered relevant to immigration matter on appeal) whether appellant was as claimed a citizen of the United Kingdom and Colonies -- British Nationality Act 1948, ss 25, 26 -- Immigration Act 1971, s 19.

Estoppel -- Appellants described in earlier proceedings as citizens of the United Kingdom and Colonies -- Whether if this description was erroneous the Secretary of State was later estopped from making a decision to deport the appellants -- Doctrine of estoppel 'little application in immigration appeals' -- (Appellants in any event not ipso facto, free from immigration control or immune from deportation as citizens of the United Kingdom and Colonies) -- Paet's Case [1979-80] Imm. A.R. 185, approved.

Held:

When on an immigration appeal against a decision of the Secretary of State (in the instant case a decision to make deportation orders against a mother and her children) a doubt has been raised as to whether the appellant has citizenship of the United Kindom and Colonies, an adjudicator can properly exercise jurisdiction to determine this matter, for under s 19 of the Immigration Act 1971 an adjudicator is required to determine whether the decision appealed against was "in accordance with the law or with any immigration rules applicable to the case"; and in order to do this it might often be essential to determine an appellant's citizenship: the fact that an appellant had made no application to the Secretary of State for a certificate of citizenship under s 25 of the British Nationality Act 1948 n1 was 'neither here nor there'. n1 Section 25 of the British Nationality Act 1948 is in the following terms: "The Secretary of State may in such cases as he thinks fit, on the application of any person with respect to whose citizenship of the United Kingdom and Colonies a doubt exists, whether on a question of fact or of law, certify that that person is a citizen of the United Kingdom and Colonies; and a certificate issued under this section shall, unless it is proved that it was obtained by means of fraud, false representation or concealment of any material fact, be conclusive evidence that that person was such a citizen on the date thereof, but without prejudice to any evidence that he was such a citizen at an earlier date". Section 26 of the 1948 Act provides as follows: "The Secretary of State, the Governor or the High Commissioner, as the case may be, shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion; and the decision of the Secretary of State, Governor or High Commissioner on any such application shall not be subject to appeal to or review in any court". The Tribunal so held (obiter) in the determination which is reported below, disapproving Mohamedy v Secretary of State for the Home Department, TH/29097/78(1435) d 21.12.78 (unreported). Semble: In the absence of any prior application to the Secretary of State under s 25 of the British Nationality Act 1948 the Tribunal was not improperly approving the exercise of jurisdiction in this matter by an adjudicator, such as would have been the position under s 26 of the 1948 Act if the applicants had sought to challenge a refusal of certificates under s 25 of that Act. n1 n1 Section 25 of the British Nationality Act 1948 is in the following terms: "The Secretary of State may in such cases as he thinks fit, on the application of any person with respect to whose citizenship of the United Kingdom and Colonies a doubt exists, whether on a question of fact or of law, certify that that person is a citizen of the United Kingdom and Colonies; and a certificate issued under this section shall, unless it is proved that it was obtained by means of fraud, false representation or concealment of any material fact, be conclusive evidence that that person was such a citizen on the date thereof, but without prejudice to any evidence that he was such a citizen at an earlier date". Section 26 of the 1948 Act provides as follows: "The Secretary of State, the Governor or the High Commissioner, as the case may be, shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion; and the decision of the Secretary of State, Governor or High Commissioner on any such application shall not be subject to appeal to or review in any court". The Tribunal also held that the Secretary of State would not have been estopped from making a decision to deport the appellants if he had erroneously described them in earlier proceedings as citizens of the United Kingdom and Colonies; the doctrine of estoppel had 'little application in immigration appeals' (Paet's Case [1979-80] Imm. A.R. 185, approved), and in any event citizenship of the United Kingdom and Colonies did not ipso facto free a person from immigration control or render him immune from deportation.

Counsel:

K. S. Nathan, counsel for the appellants. B. Hunter for the respondent. PANEL: D. L. Neve Esq (President), A. Hooton Esq (Vice-President), L. P. Mosdell Esq

Judgment One:

THE TRIBUNAL The appellants are a mother (Mrs Dhankar Kalan Deva) and her three children, all adults, who come originally from Southern Rhodesia (now Zimbabwe). On 27 February 1980 the Secretary of State decided to make deportation orders against them, acting under s 3(5)(a) of the Immigration Act 1971. They appealed to an adjudicator against this decision. Their appeal was heard by Mr E J T Housden and was dismissed on 17 June last. Against Mr Housden's determination they now appeal to the Tribunal. This appeal was originally set down for hearing together with the appeal of Kanti Anand (TH/60661/80), and since the appeals involved similar questions of law they were at the request of the appellants' solicitors, consolidated. At the outset of the hearing before us, however, Mr Nathan withdrew the appeal of Miss Kanti Anand. Consequently we are not concerned with the facts of that case. It had been argued in that case, however (as it has been argued in this appeal), that the appellant was a citizen of the United Kingdom and Colonies -- like the present appellants she had also originally come to this country from Southern Rhodesia; and the adjudicator had held that he was bound by a decision of this Tribunal in the case of Mohamedy n2, heard on 21 December 1978, and that he had no jurisdiction to decide the question of the appellant's citizenship. The case of Mohamedy certainly supported that finding, and leave to appeal in the present cases was granted because it appeared to merit reconsideration. Mr Hunter, at our invitation, submitted that it had been properly decided, because s 25 of the British Nationality Act 1948 provides that a person who is in doubt as to his citizenship may apply to the Secretary of State for a certificate that he is a citizen of the United Kingdom and Colonies; and s 26 provides that the grant or refusal of such a certificate shall not be subject to review in any court. n3 This was the argument which found favour with the Tribunal in the Mohamedy Case, but on further consideration it appears to us to be ill-founded. In our view the fact that a person may apply to the Secretary of State to have his citizenship of the United Kingdom and Colonies determined in case of doubt does nothing to relieve adjudicators or this Tribunal of their duty under s 19 of the Immigration Act 1971. This requires them to determine whether decisions appealed against are "in accordance with the law and with any immigration rules applicable to the case". n4 In order to do this (and to decide, for example, which set of immigration rules is applicable) it may often be essential to determine an appellant's citizenship. The fact that he has not applied for a certificate under s 25 of the British Nationality Act is neither here nor there. For these reasons we consider that Mohamedy was wrongly decided and we hope that it will no longer be regarded as a precedent, despite the fact that these observations can only be regarded as obiter dicta, the appeal of Kanti Anand having been withdrawn. n2 Mohamedy v Secretary of State for the Home Department, TH/29097/78(1435) d 21.12.78 (unreported). n3 Sections 25 and 26 of the British Nationality Act 1948 are set out in footnote 1, ante. n4 The Tribunal, for its part, would act under s 19(4) or s 20, as appropriate. To revert to the instant appeal, Mr Nathan made strenuous efforts to persuade us that the appellants were patrial by virtue of s 2(1)(c) of the Immigration Act 1971, but upon it being pointed out that none of the appellants had ever been settled in this country as defined in s 2(3)(d) of the Act, he abandoned this submission and conceded that he was unable to maintain that they were patrial. He then submitted that they were exempt from deportation by virtue of s 7(1)(b) of the 1971 Act, but abandoned this claim also when it was pointed out that none of the appellants had been in this country for five years at the date of the Secretary of State's decision. Mr Nathan then submitted that the Secretary of State was estopped from making the decision appealed against because in previous proceedings (Appeal No TH/35864/78) he had described the appellants as citizens of the United Kingdom and Colonies; and further that in any event, taking all the circumstances of the appellants into account, he should have exercised his discretion differently. In our view -- for the reasons enunciated by this Tribunal in the case of Paet n5, the doctrine of estoppel has little application in immigration appeals, and in any event, even if it has and the appellants are citizens of the United Kingdom and Colonies, this does not ipso facto free them from immigration control or render them immune from deportation. n5 Paet v Secretary of State for the Home Department [1979-80] Imm. A.R. 185; TH/49987/79(1826) d 27.8.80. With regard to the exercise of the Secretary of State's discretion, both he and the adjudicator appear to have taken all relevant matters into consideration and we are unable to find that their decisions were in any way at fault. The appeal of each of the four appellants is consequently dismissed.

DISPOSITION:

Appeals dismissed.

SOLICITORS:

Suchak & Kanji, Wembley.

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