Amina Musa Ahmed Umarji and Musa Ahmed Umarji v. Secretary of State for the Home Department

AMINA MUSA AHMED UMARJI AND MUSA AHMED UMARJI v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal

[1989] Imm AR 285, [1989] Fam Law 357

Hearing Date: 4 January 1989

4 January 1989

Index Terms:

Deportation -- overstayers -- whether on appeal, an adjudicator is precluded from taking into account matters, the subject of earlier unsuccessful appeals -- whether adjudicator's review is restricted to determining whether the Secretary of State had taken all relevant factors into consideration. Immigration Act 1971 ss 3(5)(a) 19(1)(a): HC 169 paras 156-158.

Notice -- by Secretary of State -- properly signed as required by 1971 Act -- no official stamp -- whether notice invalid. Immigration Act 1971 s 32(2).

Held:

The appellants were citizens of India who, it was common ground, had become overstayers after appeals against refusals of indefinite leave to remain as dependent relatives had been dismissed. An adjudicator dismissed their appeals against the Secretary of State's decision, pursuant to s 3(5)(a) of the 1971 Act, to deport them. In the course of his determination he ruled that he was not entitled to take into account matters which had already been adjudicated upon in unsuccessful appeals against a refusal of indefinite leave to remain. He also appeared to have restricted himself to being satisfied that the Secretary of State had taken account of all relevant circumstances, rather than determining afresh whetherdiscretion ought to have been exercised in the way the Secretary of State had exercised it. When the matter went before the Tribunal the appellants' representative submitted that the notice of intention to deport was flawed in that although signed in accordance with the provisions of the Act, it bore no official Home Office stamp. Held: 1. Section 32(2) of the 1971 Act required a notice to be signed by or on behalf of the Secretary of State but there was no requirement that it should bear any official stamp. The notice, as served, was valid. 2. On an appeal against deportation, an adjudicator was obliged to consider all compassionate circumstances that could and were put before him, including any matters which had been previously considered by an adjudicator, Ali Ajmal followed. 3. In restricting his review to determining whether the Secretary of State had considered all the relevant circumstances, the adjudicator had misdirected himself as to his powers and duty under section 19(1)(a) of the 1971 Act.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Ali Ajmal (CA) [1982] Imm AR 102. Kiritbhai Chunibhai Patel v Secretary of State for the Home Department [1988] Imm AR 187.

Counsel:

E Slinger for the appellants; A Cunningham for the respondent PANEL: DL Neve Esq (President), RE Hunte Esq JP, BJS Edmonds Esq

Judgment One:

THE TRIBUNAL: The appellants, who are husband and wife, are citizens of India against whom on 26 March 1987 the Secretary of State decided to make deportation orders by virtue of section 3(5)(a) of the Immigration Act 1971. They appealed to an adjudicator against the decision. Their appeal was heard by Mr EJ Jenkins and dismissed on 8 July last. Against Mr Jenkins' determination the appellants now appeal to the Tribunal. We reserved our determination and the parties agreed to postal delivery of it. The facts of this case have never been substantially in dispute. The appellants first arrived in this country on 17 October 1982, when they were admitted as visitors for three months in order to visit their son who lives in Bolton. They were granted an extension of their permitted stay which expired on 17 October 1983. On 10 October 1983 they applied to be allowed to remain permanently as the dependants of their son. This application was eventually refused on 17 April 1984. They appealed to an adjudicator against this refusal, but their appeal was dismissed on 29 January 1985. Representations were made by a Member of Parliament on their behalf, but eventually, on 4 September 1986 the Secretary of State decided to make deportation orders against them. They appealed to an adjudicator against this decision and their appeal was allowed by Mr CP Rushton on 4 March 1987 because the notices of the Secretary of State's decisions which had been served upon them were unsigned. The Secretary of State subsequently issued fresh notices on 26 March 1987 which are the subject of this appeal. Before the adjudicator Mr Slinger took the technical point that the notices of intention to deport each of the appellants in this appeal bore no official stamp. He conceded that they had been properly signed on behalf of the Secretray of State, but objected that the notices did not bear the Home Office rubber stamp which is commonly affixed to such notices and which, in his submission, the appellants were entitled to expect. He produced a refusal notice relating to the appellants' application for an extension of their permitted stay, which bore such a stamp. We say at once that we find no merit in this submission. Section 32(2) of the Immigration Act 1971 provides that: "Any document purporting to be an order, notice or direction made or given by the Secretary of State for the purposes of this Act and to be signed by him or on his behalf, and any document purporting to be a certificate of the Secretary of State so given and to be signed by him, shall be received in evidence, and shall, until the contrary is proved, be deemed to be made or issued by him." Nowhere in the Act, or in the Immigration Appeals (Notices) Regulations 1984, is there any requirement that such notices should bear a stamp. We now consider the further submission made by Mr Slinger before the adjudicator and repeated before us -- that is, that the compassionate circumstances of each of the appellants outweigh the considerations of public interest. The following facts were accepted by the adjudicator. At the time of the Secretary of State's decisions which are the subjects of this appeal the appellants were aged 63 and 61. They are the retired headmaster and headmistress of a village school in India. They retired shortly before coming to this country in 1982. It is not disputed that their limited leave to be here expired on 17 October 1983 and that, having exhausted the appeal process on 29 January 1985, they have remained here without authority. They have three sons and three daughters. Three sons and two daughters are all in this country, and only one daughter remains in India, and she is married. Their sons have a business in this country (one is still a student). The appellants have a house in India, but when they left it was in a drelict condition and they would be unable to live in it if they had to return there. They are in receipt of pensions, but these are small and would not be sufficient to support them. The principal compassionate circumstance consists of the medical condition of the female appellant. As to this, there are medical reports upon the file. A report of the Consultant Orthopaedic Surgeon, Mr AT Williams, dated 18 February 1986, records that on 29 August 1983 she fell down some steps and landed heavily on her right wrist. She did not seek any proper medical treatment for some weeks and when she did do so it was found that she had fractured her wrist and it was not possible to reduce the fracture because by the time she was examined it had already hardened up. She had also injured her right shoulder and developed periarthritis. Mr Williams reports: "Looking to the long term it is possible to increase the functional capability of the right wrist and hand up to a point by systematic exercises but whether she can summon enough will to persevere along this direction remains doubtful. Even with high determination the maximum attainment of wrist function may not exceed two-thirds of the normal. Moreover she will be left with a permanent difficulty in terms of weakness of wrist function because of the incompetent action of the muscles due to differential tension and distorted pull across the deformed fracture. Now a comment on her finger function. Though she is able to make a fist it is not nearly as strong. This has also been largely due to lack of use and a certain amount of bone and joint atrophy as a direct consequence of it. It is unlikely that she will ever regain full function of her fingers and thumb either, which for a right-handed person would be a serious handicap. Further improvement is likely with exercise though this may be only marginal." Another report from a Dr Michael Tarsh, a Consultant Psychiatrist, dated 27 February 1987 concludes: "Mrs Umarji is severely physically handicapped. Perhaps she would have done better if she had spoken some English and if she had been taken for energetic physiotherapy. These opportunities have now gone and it is quite clear that she is going to be left disabled. There is no question of compensation for a domestic accident, but she is very like people whom I see in compensation cases who have adopted the role of an invalid, and these people do not get better when there is extensive family to look after them. Whether or not her dependence is prolonged deliberately and calculatedly in order to remain in England, I have no means of knowing. Perhaps there is some slight element of this, but probably she is dependent because she is physically handicapped, and most of the picture is organic, rather than emotionally caused. She probably does realise that her present state is the reason why she is asking to stay here, but I do not think that her position is deliberately and consciously exaggerated. At interview, she is generally unahppy and frightened and weepy, but as I have said, not mentally ill. If she went home she would require a far greater amount of physical nursing and emotional and social support and physiotherapy and general social services than can possibly be available in the small village where she comes from. She can not afford to move into the city even if such advanced facilities were generally available, which they are not." In their evidence to the adjudicator, which the adjudicator appears to have accepted, the wife said that she was virtually unable to use her right hand. She had been right-handed. She needed help from her daughter-in-law to bath and to dress. There was nobody in India who could do this for her. Her husband was incapable of cooking or looking after himself, and he himself was not in good health and was receiving treatment from two specialists. The adjudicator, having reviewed the facts, concluded his determination in this way: "All this is not to say that I do not have a great deal of sympathy for the situation of the appellants, their desire to be with their children in the United Kingdom, and their desire, and need, to take advantage of medical facilities which are no doubt far superior to those at home. Nevertheless, it seems to me that the only matter which it is within my competency to consider is whether or not the Secretary of State, in reaching his decision to make a deportation order, took into account all the relevant factors which he should have done under the Immigration Rules and the relevant law. On the evidence before me, I find that he did take into consideration all the relevant factors, including those which have been canvassed at some length before me on behalf of the appellants, in reaching his decision to deport the appellants, and in re-considering that decision upon this appeal. It may well be that the Secretary of State will wish, in his absolute discretion, to consider the circumstances yet again before the deportation orders are in fact made, but that is a matter for him and not for me. For these resons, I must dismiss these appeals." Before us Mr Slinger recapitulated the compassionate circumstances, stressing the poor health of the appellants, particularly the wife; the fact that they had no habitable house to return to; that the wife was incapable of basic activities without assistance; that the appellants were financially uanble to employ a servant; that, as retired teachers, they had a certain status in the community and would face humiliation if they had to return to a comparatively destitute life in India; and that in this country they had a close-knit family unit of which they were a part. In reply Mr Cunningham conceded that there were compassionate circumstances, but submitted that if they were really dependent upon their children in this country it was to some extent at least a dependency of choice. He put the Home Office view that public interest in the maintenance of efficient immigration control required the deportation of the two appellants. We have carefully considered the submissions in the light of the evidence contained in the file. Our task has been made easier by the conscientious record of proceedings and determination prepared by the adjudicator. However there are two passages in the adjudicator's determination which we feel call for comment. First, the adjudicator says: "At the outset of the hearing, I made it clear that I regarded these appeals only as appeals against the decision of the Secretary of State to make deportation orders, on the ground that they had remained without authority since an appeal against refusal of an application for indefinite leave to remain was refused on 29.1.85. It appeared to me that such grounds as had been offered related to previous applications which had been dismissed, and that it was not within my competence to consider further the matters which had already been considered in connection with paras 133 and 52 of HC 169." This was in our view a misdirection. In hearing an appeal against a decision to make a deportation order it is incumbent upon an adjudicator to consider all the matters which can be raised relating to compassionate circumstances, whether they have been previously considered by another adjudicator or not. This is clear from the determination in the case of Kiritbhai Chunibhai Patel [1983] Imm AR 187. In tha case, which followed the judgments of the Court of Appeal in the case of Ali Ajmal [1982] Imm AR 102, the Tribunal said this: "In this case it was open to the adjudicator (and it is open to us) to look at the marriage and assess the strength or weakness. Such a consideration may lead to a conclusion as to the marriage inconsistent with that reached in previous proceedings, but it cannot affect the previous conclusion. It is an element of the compassionate grounds that the Secretary of State and appellate authorities are directed to take into account. The adjudicator was therefore correct in holding that the decision refusing leave to remain could not be challenged. However in our view, he took that prohibition too far in stating that he must accept the earlier evaluation of evidence leading to that decision and that grounds of appeal relating to the nature of the marriage were excluded from consideration." The second passage to which we would refer is this: "Nevertheless, it seems to me that the only matter which it is within my competency to consider is whether or not the Secretary of State, in reaching his decision to make a deportation order, took into account all the relevant factors which he should have done under the Immigration Rules and the relevant law." If this passage is intended to mean that all an adjudicator has to do is to consider whether the Secretary of State has taken into account all the matters which he should have done, this also is a misdirection: because it is the duty of an adjudicator (imposed upon him by section 19(1)(a)(ii) of the Immigration Act 1971) to decide whether the Secretary of State's discretion should have been exercised differently -- in other words to decide whether he (the adjudicator) would have exercised his discretion in the same way as the Secretary of State. We are very conscious of the fact that deportation will normally be the proper course where a person has remained without authorisation (paragraph 158 of HC 169) but in considering whether the normal course should be allowed, we have to consider the matters set out in paragraph 156. After consideration, we have come to the conclusion that by the narrowest of margins the appellants have established that there are sufficient compassionate circumstances in this case to depart from the normal course. Not without considerable hesitation therefore, we have decided that the appeal of each of the appellants should be allowed.

DISPOSITION:

Appeals allowed

SOLICITORS:

Ramsbottom & Co, BlackburnCC5FEB7E97C205: