Selliah Balasingham Ranganathan v. Secretary of State for the Home Department

Selliah Balasingham Ranganathan v The Secretary of State for the Home Department

Immigration Appeal Tribunal

[1984] Imm AR 247

Hearing Date: 5 December 1984, 10 January 1985

10 January 1985

Index Terms:

Deportation -- Visitor -- Granted extensions in that capacity -- Application for further extension refused -- Appeal dismissed -- Notice of intention to deport served -- Application for asylum then made and refused -- Appeal against notice of intention to deport dismissed by adjudicator -- The circumstances to be considered at the hearing of the appeal -- Whether the words "known to the Secretary of State" in paragraph 158 of HC 169 were ultra vires Immigration Act 1971 -- Whether events subsequent to date of decision could properly be considered if they helped to indicate the correctness (or otherwise) of a decision which necessarily involved an estimate of what was to happen in the future -- Immigration Act 1971 ss 3(5)(a), 15(1) -- HC 169 paras 156, 158.

Held:

The facts are set out in the determination. Held: (i) The words "known to the Secretary of State" were not (in the context given above) ultra vires. (ii) Since the appellant's claimed fear of persecution should he be returned to Sri Lanka as not a fact known to the respondent when the decision to deport was made it was not a matter proper to be considered by the adjudicator or Tribunal: except in so far as it might constitute a compassionate circumstance known to the respondent and thus one of the factors to be taken into consideration under paras 156 and 158 of HC 169. (iii) The compassionate circumstances relating to the appellant were on balance insufficient to outweigh the public interest.

Counsel:

KS Nathan of Counsel for the appellant. J Daly for the respondent. PANEL: DL Neve Esq (President), GW Farmer Esq (Vice President), Professor DC Jackson (Vice-President).

Judgment One:

THE TRIBUNAL: The appellant is a citizen of Sri Lanka against whom the Secretary of State has decided to make a deportation order by virtue of Section 3(5)(a) of the Immigration Act 1971. Against this decision the appellant appealed to an adjudicator. His appeal was heard by Mr M Patey and was dismissed on 23 May 1984. Against Mr Patey's determination he now appeals to the Tribunal. The following facts are not in dispute. The appellant came to this country on 10 August 1980, when he was admitted for one month as a visitor on condition that he did not enter employment. He was subsequently granted extensions of his permitted stay in the same capacity and subject to the same conditions; the last of these extensions expired on 30 September 1981. On 14 September 1981 the appellant applied for a further extension of stay, writing a letter to the Home Office in the following terms:

"I am having some problems of me going back to Sri Lanka before 30th of September when my visa in this country expires. I need further extension to stay here at least next six months, if you oblige. If you insist to know the details of my problems I would be glad to explain in person, if you kind enough to arrange an interview. I enclosed the passport for your needs."

This was followed by a further letter dated 16 October 1981, which reads as follows: "With reference to your letter dated 3 Nov instant Ref R 226733, I like to inform you that I will have to be here at least until end of April 1982 as I am writing a book about the 20th Century political situation in Great Britain and Eire, which is expected to be published by August 1982 in Sri Lanka. Please be obliged to grant me permission to remain here until end of April. Further I do realise that you were kind enough to have given me permission to stay here more than 14 months, but I spent 5 months in Eire during that time." His application was refused on 20 November 1981 and he appealed against the refusal to an adjudicator. He did not request an oral hearing of the appeal and his appeal was dealt with by Mr KNS Counter who dismissed it on 19 May 1982. The appellant did not apply to the Tribunal for Leave to Appeal against Mr Counter's determination. He was subsequently advised to leave this country but failed to do so, and nothing was heard of him until -- in July 1983 -- a police officer in Southall informed the Home office that the appellant had been found working at a petrol station at Dudden Hill, where he had been employed for the preceding ten months. Before that he had been working for seven months for a firm in Wembley. He had told the police officer that he did not want to return to Sri Lanka because he was a Tamil. Asked why he had not expressed his fear of returning to Sri Lanka before, and why had not sought to remain on grounds of asylum he said that he had never mentioned it as he had no intention of seeking asylum. The above facts were not disputed before the adjudicator and have not been disputed before us. After considering them, and having taken into account all the appellant's circumstances known to him and the considerations set out in paragraph 156 of HC 169, the Secretary of State decided, on 2 August 1983, to make a deportation order against the appellant under the provisions of Section 3(5)(a) of the Immigration Act 1971. Notice of this decision was served on the appellant, together with a Detention Order, on 2 August 1983. Notice of appeal against this decision was filed on 4 August in the following terms:

"Unsafe to return to Sri Lanka at the moment, other grounds to follow."

Subsequently the appellant was released on bail. Thereafter the appellant's solicitors wrote to the Home Office claiming political asylum for the appellant and enclosing literature to support their claim. As a result the appellant was interviewed at the Home Office on 7 December 1983, when he gave an account of his political history and domestic circumstances and claimed that he would be persecuted if he had to return to Sri Lanka. On 24 January 1984 the Home Office sent the appellant the following notice: "Messrs M Julius Melchior and Co have applied on your behalf for leave to remain in the United Kingdom on the ground that if you are required to leave, you would have to go to Sri Lanka where you fear persecution because of your political opinions, but the Secretary of State is not satisfied that your fear of persecution is well founded. The Secretary of State therefore refuses your application. Under Section 14(1) of the Immigration Act 1971 an entitlement to appeal against a refusal to vary a limited leave is conferred only on a person whose limited leave to enter or remain has not expired. Your application was made on 14 November 1983 but your limited leave expired on 18 December 1981. You therefore have no right of appeal against the Secretary of State's decision." The appeal against the Secretary of State's decision to make a deportation order went before Mr Patey on 23 May 1984. His appeal was based entirely upon his claim to political asylum, and in support of this claim he gave evidence and was the only witness. Various letters and other documents were produced in evidence including a report from Amnesty International. The adjudicator reviewed this evidence in his determination but records that he was not impressed by the appellant's testimony and that he was unable to accept, even on the lower standard of proof appropriate to such cases, that the appellant qualified for asylum. He also records:

"I have also considered whether taking all relevant factors into account it would be appropriate to deport the appellant. It has not been disputed that the appellant has long overstayed his authority to remain in the United Kingdom the normal consequence of which is deportation. I appreciate that the situation in Sri Lanka particularly in the north of the Island where the appellant's home is located, is still unsettled but I do not consider that this or indeed any other factors in the appellant's case justify a departure from the normal consequence of overstay."

-- this last sentence being a reference to paragraph 158 of HC 169. Since Mr Patey's determination of 23 May the Tribunal has heard the case of Ekrem Kandemir (3427). In their ruling in that case, dated 24 August 1984, the Tribunal held that the words "known to the Secretary of State" contained in the sentence "full account is to be taken of all the relevant circumstances known to the Secretary of State", contained in paragraph 158 of HC 169, meant what they said. In that case they held that: "1. (a) It was open to the adjudicator and is open to the Tribunal in the appeal before us (ie from the decision of 7 October 1983) to consider only circumstances known to the Secretary of State on that date (HC 169 paragraph 158). Such a restriction applies whatever the nature of the circumstances not known. (b) It follows that the appellant cannot rely on evidence relating to the plea of asylum made for the first time on 17 October 1983. 2. In these proceedings no appeal lies from the refusal of asylum by the Secretary of State notified on 6 December 1983, that decision not being incorporated into these proceedings. 3. (a) An appeal lies from the refusal of asylum only if such appeal lies under the Immigration Act 1971 Part II, no right of appeal being conferred by the Convention through the Immigration Rules or in any other way. (b) It follows that there is no reason to adjourn these proceedings pending consideration of any appeal from the refusal of 6 December 1983." The determination and the rulings in the Kandemir case set out very fully the Tribunal's reasons for coming to the conclusions which they reached. As we have mentioned, the Kandemir case post-dated the determination of Mr Patey with which we are now concerned, but we now have to consider whether in the light of it Mr Patey should have entertained argument as to the appellant's claim to political asylum at all. Because of this aspect of the appeal the matter first came before the Tribunal on 3 September. The Tribunal granted the parties an adjournment to afford them an opportunity of considering the Kandemir determination and when we re-convened on 5 December 23 invited Mr Nathan to address us first of all on this point. Mr Nathan's submission in this regard, if we understood him correctly, consisted of three main contentions. First, he submitted that the Secretary of State knew or should have realised that the appellant was claiming that he had a well-founded fear of persecution, should he be returned to Sri Lanka, before the decision to deport was made. The decision to deport was made, as we have mentioned, on 2 August 1983, and in support of this contention Mr Nathan prayed in aid the determination of Mr Counter dated 19 May 1982 dismissing the appellant's appeal against the refusal of an extension of his permitted stay. This is a six-line determination and reads as follows:

"This appeal is being decided on the papers at the request of the appellant. The Secretary of State in November 1981 refused an extension of stay as a visitor to the appellant on grounds that he was not satisfied that the appellant's proposed visit would be within the limit of one year allowed. I do not consider that the claim by the appellant that he was writing a book about the political situation in Britain has any significant effect on the application of the rule, and the appeal against refusal is dismissed."

Mr Nathan also prayed in aid the letter written by the appellant to the Home Office dated 14 September 1981, which we already mentioned. We can dispose of this first point quickly because in our opinion by no stretch of the imagination could either of these documents be construed as a claim for political asylum. Mr Nathan's second submission was that the words "known to the Secretary of State" in paragraph 158 are ultra vires the Immigration Act 1971. His argument in support of this contention as it was put to us was not easy to understand and we hope we are doing justice to it when we try to summarise it as follows. Section 15(1) of the Act provides that a person may appeal to an adjudicator against a decision of the Secretary of State to make a deportation order against him by virtue of Section 3(5) of the Act. Sub-section 3, 4 and 5 of Section 15 prescribe exceptions to this general provision. In Mr Nathan's submission paragraph 158 as interpreted by the Tribunal in the case of Kandemir tends to limit a person's right of appeal as prescribed in Section 15(1) of the Act and is consequently ultra vires. It is perhaps convenient to deal with this second submission straight away. In our view there is no substance in it because it appears to us that paragraph 158 does not restrict in any way a person's right of appeal under Section 15(1). All it does is to limit the matters which can properly be ventilated at the hearing of such an appeal in the manner indicated in the Kandemir determination. As to Mr Nathan's submission that nothing in the Act limits the matters which can be raised on appeal, such matters clearly have to be relevant to the decision which is challenged: and for the reasons set out in the Kandemir determination a claim for political asylum which is made subsequent to a decision to make a deportation order by virtue of Section 3(5)(a) is not a relevant consideration. For these reasons we do not accede to Mr Nathan's second submission. Mr Nathan's third submission was that events subsequent to the date of the decision appealed against could properly be considered if they helped to indicate the correctness or otherwise of a decision which necessarily involved an estimate of what was to happen in the future. This was an argument which Mr Nathan had advanced in an earlier case, that of Kiritbhai Chunibhai Patel 1983 Imm AR 187. In their determination of that appeal the Tribunal said this: "Mr Nathan argued that deportation cases should be treated on the same basis as those involving "making an inspired guess as to the future prospects of, for example, a business". It was suggested by the Court of Appeal in R v IAT ex parte Kotecha [1983] All ER 289 that it may be proper in such cases to have regard to what happened subsequent to the original decision. However, on the contrary we think it clear that the decision to make a deportation order does not involve an inspired guess as to the future but an evaluation of the circumstances of the appellant as they existed at the date of decision. This is underlined by the restriction of the circumstances to be taken into account to those "known to the Secretary of State". We re-affirm what the Tribunal said in that case, which disposes of Mr Nathan's third submission. It might have been argued (but was not) that when the Secretary of State refused the appellant's application for political asylum on 24 January 1984 in the terms which we have quoted, this constituted a fresh decision to make a deportation order and that at the time of this decision the question of political asylum was one of the facts "known to the Secretary of State". Such an argument would depend upon the premise that the refusal of asylum necessitated the making of a fresh decision to deport. In our opinion such a premise is not in accordance with the facts of this case. The Home Office explanatory statement records that having refused the application for asylum "the Secretary of State furthermore could find no cause to alter his decision to deport the appellant". This decision had been made on 2 August and is the decision which is the subject of this appeal; and in our view the fact that the Secretary of State saw no reason to alter this decision could in no way be construed as in itself constituting a fresh decision. For these reasons, had such an argument been advanced, we should have rejected it. For his part Mr Daly stated that he depended upon the Kandemir determination and pointed out that if the appellant had really had a well-founded fear of persecution before the decision to deport him had been made it was open to him to say so and he had not done so. For the reasons which we have given we see no reason to depart from the principle enunciated in Kandemir, and hold that because the appellant's fear of persecution should he be returned to Sri Lanka (if indeed it was genuine) was not a fact known to the Secretary of State when the decision appealed against was made it was not a matter proper to be considered by the adjudicator or by this Tribunal -- except insofar as it may constitute a compassionate circumstance known to the Secretary of State and thus being one of the factors which have to be taken into consideration in accordance with paragraph 156 and 158 of HC 169. After a short adjournment we informed Mr Nathan of the conclusions which we have reached as described above and invited any further representations that he might care to make. Mr Nathan then reviewed the evidence which had been before the adjudicator, and further evidence which had been produced relating to the situation in Sri Lanka and known to the Secretary of State when he made his decision. This was in the form of newspaper cuttings relating to the civil conflict between Tamils and Sinalese in Sri Lanka. Mr Nathan submitted that, although the adjudicator recorded in his determination that he was not impressed with the appellant's testimony and had doubts as to his credibility, the documentary evidence which had been produced, which included letters from Sri Lanka MPs, the Leader of the Opposition in Sri Lanka, a report from Amnesty International and newspaper reports, built up a picture which indicated the dangerous sort of life which the appellant would face if he had to return to Sri Lanka and constituted strong compassionate circumstances. We asked Mr Nathan if he wished to address us with regard to any other of the factors set out in paragraph 156, but he informed us that he had nothing to add in this regard. We have however considered these factors. The appellant is now 32 years of age -- at the time of the decision to deport him he was 30. He has been in this country since August 1980, but for over 2 years he has been here without permission and in breach of his conditions of admission. He does not appear to have any close ties with this country. He appears to have been in regular employment since May 1981 and nothing is known against his character. He has no children, being a single man. He has no criminal convictions. With regard to the compassionate circumstances we certainly recognise that if he has to return to Sri Lanka he will no doubt face an uncomfortable existence and possibly even a dangerous one, and this is certainly a compassionate circumstance which we put into the scales to balance against the public interest in maintaining an efficient immigration control. We do not consider however that it is sufficient, when taken into consideration together with the other factors, such as they are, to outweigh such public interest and in our opinion neither the decision of the Secretary of State nor the determination of the adjudicator involved an exercise of discretion with which we would seek to differ. The appeal is consequently dismissed, but no doubt the Secretary of State will take due notice of the apparent deterioration of the situation in Sri Lanka since his decision to deport the appellant was made.

DISPOSITION:

Appeal dismissed.