Secretary of State for the Home Department v. Shamusideen Aranji Oladehinde

Secretary of State for the Home Department v Shamusideen Aranji Oladehinde TH/9980/88 (6487)

Immigration Appeal Tribunal

[1989] Imm AR 461

Hearing Date: 12 May 1989

12 May 1989

Index Terms:

Deportation -- effect of 1988 Act -- overstayer -- last given leave to remain less than seven years before the decision to deport -- whether an appeal lay to the immigration appellate authorities on the basis that the decision was unfair and thus not in accordance with the law -- whether such an appeal barred by the provisions of the 1988 Act -- whether a decision to deport may be taken by an immigration officer -- whether the Secretary of State has power to delegate that function to an immigration officer of appropriate rank. Immigration Act 1971 ss 3(5)(a), 4, 19(1)(a)(i), sch 2 para 1(3): Immigration Act 1988 ss 5(1) and (2): Immigration Appeals (Notices) Regulations 1984 r 3(2).

Held:

The respondent was a citizen of Nigeria to whom there had been issued a notice of intention to deport as an overstayer. On appeal, an adjudicator allowed the appeal although it was an appeal subject to the restrictions imposed by s 5 of the 1988 Act. The appeal was allowed on the basis that the Secretary of State had acted unfairly and the decision was therefore not in accordance with the law. The appellant challenged before the Tribunal the jurisdiction of the adjudicator so to determine a case of that nature. The respondent, before the Tribunal, challenged the validity of the decision on the basis that it had been taken by an immigration officer, to whom under the provisions of the 1971 Act, the Secretary of State had no power to delegate that function. Held 1. Following Aujla, s 5 of the 1988 Act excludes from the appellate authorities any consideration of the fairness of a decision within the ambit of that section. 2. An immigration officer is given specific powers and duties under the 1971 Act, but the Act does not restrict them to those specified powers. 3. An immigration officer is not, by operation of that Act removed from the ambit of 'responsible officials' in the Immigration and Nationality Department who, as such, following the Carltona doctrine can act as or for the Secretary of State in immigration matters. 4. It was not therefore necessary for the Secretary of State specifically to delegate authority to decide to deport an individual, to an immigration officer before he could exercise that power. If it were however, on the facts, that formal delegation had been effected.

Cases referred to in the Judgment:

Carltona Ltd v Commissioners of Works [1943] 2 All ER 560. Aujla (unreported) (6459)

Counsel:

A Cunningham for the appellant; K Drabu of the United Kingdom Immigrants Advisory Service for the respondent. PANEL: DL Neve Esq (President), GW Farmer Esq (Vice-President), Professor DCS Jackson (Vice-President)

Judgment One:

THE TRIBUNAL: The respondent is a citizen of Nigeria against whom, on 25 August 1988, the Secretary of State decided to make a deportation order under section 3(5)(a) of the Immigration Act 1971. The respondent appealed to an adjudicator against this decision and his appeal was heard by Mr IMS Donnell and allowed on 8 November 1988. Against Mr Donnell's determination the Secretary of State now appeals to the Tribunal. The respondent's appeal to the adjudicator was caught by the provisions of section 5, subsections (1) and (2) of the Immigration Act 1988, which are as follows: "5(1) A person to whom this subsection applies shall not be entitled to appeal under section 15 of the principle Act against a decision to make a deportation order against him -- (a) by virtue of section 3(5)(a) of that Act (breach of limited leave); or (b) by virtue of section 3(5)(c) of that Act as belonging to the family of a person who is or has been ordered to be deported by virtue of section 3(5)(a), except on the ground that on the facts of his case there is in law no power to make the deportation order for the reasons stated in the notice of the decision. (2) Subsection (1) above applies to any person who was last given leave to enter the United Kingdom less than seven years before the date of the decision in question but the Secretary of State may by order exempt any such persons from that subsection in such circumstances and to such extent as may be specified in the order." It was not disputed that the respondent had been admitted to this country as a student on 17 September 1983 and had been granted subsequent extensions of his permitted stay, subject to a condition prohibiting employment. He had taken employment in breach of this condition. The notice of the decision which is the subject of this appeal states: "You were last granted leave to remain until 31/5/88 subject to a condition prohibiting employment. You submitted an application for leave to remain as a student on 1/6/88 which has not yet been decided. By virtue of VOLO, the Immigration (Variation of Leave) Order 1976 your leave and the conditions attached to it was extended, and the Secretary of State is satisfied that you have failed to observe a condition of your stay by taking employment." The notice is signed by a Mr C Crowe "on behalf of the Secretary of State". Before the decision was taken the respondent was interviewed, and a report of the interview (dated the day following the interview) was before the adjudicator and marked 'Annex C'. The adjudicator concludes his determination: "I do not have knowledge of the mechanics of the process leading to the decision to deport the appellant. Annex C is stated to be a report to the Home Office in order to assist the Secretary of State in deciding whether such a decision should be made. However, as I have remarked, it is dated 26 August 1988, the day after the notice of intention to deport was served and it is not apparent by what means, if any, the information in the report was communicated to the Secretary of State, and authority given for notice of intention to deport to be served. It might be reasonable to assume that it was known by the Home Office that the appellant had had his stay extended on a number of occasions, that he had obtained some qualifications and that he was accepted up to the time of his last previous application as a genuine student. However, the report doubts that he is a geniune student, relying in part on the incorrect assumption that he had obtained no qualifications. I do not know to whom this information was communicated or what effect it had on him (or her) but the result was that a decision to deport the appellant was made. The question is whether there was a lack of fairness in the way the appellant was dealt with of sufficient gravity to warrant the review on the respondent's decision. I have no doubt that the appellate authority has the function to consider such a matter (Hashim (6155) at page 12) and in the exercise of it, I have come to the conclusion that the respondent, or the person acting on his behalf, has not acted fairly, in that the circumstances of the appellant's study in this country, notably the qualifications which he was able to obtain and the fact that he now wished to engage in a further course, were not taken into account. This means that the respondent's decision did not have a proper basis in law. I would not wish to express any view on the other circumstances except to emphasise that the statement under caution made by the appellant is not available, nor has any information been given by the respondent as to the circumstances in which it was made. For the reason stated the appeal is allowed." The Secretary of State's first ground of appeal reads: "1. The adjudicator misdirected himself in law in deciding that he was empowered to allow one appeal on the ground that the decision was "unfair" and therefore "not in accordance with the law". In respect of appeals brought under section 15 if the Immigration Act 1971, restricted by section 5(1) of the Immigration Act 1988, the adjudicator's powers under section 19(1)(a)(i) of the 1971 Act are "subject . . . to any restriction on the grounds of appeal". Section 5(1) of the 1988 Act imposes such restriction on the grounds of appeal and therefore does not empower an adjudicator to allow an appeal on the grounds of "unfairness" or "unreasonableness" which are not "grounds of appeal" applicable to the case." As to this, Mr Drabu went to some lengths to persuade us that the decision in this case was unfair and thus not in accordance with the law. He relied on grounds which have already been advanced to the (differently constituted) Tribunal in the case of Aujla (6459) -- the determination of which appeal was delivered prior to his submission. Whilst the Tribunal in that case held that to exclude the question of "fairness" would require express statutory provision, and that the appellate authorities could in the normal way consider whether a decision was fair, they went on to hold that such statutory provision was provided by section 5(1) and that "The obligation to be fair . . . goes to the exercise of the statutory power and not its creation. Indeed, the question can only arise if the power exists. There is no doctrine which will permit the obligation to be fair to qualify the statutory power itself. In other words, the requirement under Section 19 of the 1971 Act that a decision be in accordance with the law encompasses both the power and its exercise. The jurisdiction under Section 5 of the 1988 Act limits that jurisdiction to matters relating to the existence of the power. In our view, therefore, any issue of fairness does not affect the power to make a deportation order, and any consideration of it is excluded by Section 5 of the 1988 Act". Mr Drabu attempted, if we understood him correctly, to counter this finding by arguing that no distinction could properly be drawn between 'powers' and 'the exercise of powers'. In this case the Home Office statement did not even record that compassionate circumstances had been considered (other than a reference to paragraph 156 of HC 169). The exercise of power implied a discretion or choice, and by ignoring the whole scheme of deportation the Secretary of State had acted ultra vires the 1971 Act and did not have the power in law to make the decision. We have recorded this submission out of deference to Mr Drabu, but we see no reason to differ from the Tribunal's findings in the Aujla case, which are conclusive of the matter (at least until they should be reversed by higher authority). The remaining grounds of appeal are to the effect that the adjudicator failed to appreciate that the decision had been taken by HM Inspector DJ Barrell under powers delegated to him by the Secretary of State; and that before taking the decision Mr Barrell was in possession of all the information contained in the later report (referred to an Annex C). The remaining issues therefore centred on Mr Barrell's authority -- or lack of it -- to make the decision. Mr Cunningham submitted (a) that in his capacity as a Crown servant employed by the Immigration and Nationality Department of the Home Office in the administration of the Immigration Act Mr Barrell did not need express delegation of the Secretary of State's powers, and (b) if he did need it, such delegation had been effected as from 1 August 1988: and as evidence of such delegation he put in evidence (by our leave) a certificate signed by the Principal Private Secretary to the Home Secretary and a copy from Hansard recording an answer by the Home Office Minister Mr Renton to a Parliamentary Question dated 20 December 1988. As to (a), Mr Drabu submitted that before Mr Barrell could properly make the decision it was necessary for such function to be delegated to him. This was because the functions of the Immigration Service (of which Mr Barrell was a member) were tightly defined by the 1971 Act -- notably in section 4 and schedules 2, 3 and 4. They were concerned with the grant or refusal of leave to enter the country -- once in, control of an entrant passed to the Home Office. This was consistent with the scheme of immigration control. Without express delegation, Mr Barrell was acting beyond his powers. Mr Cunningham concedes that immigration officers are creatures of statute and have powers peculiar to themselves conferred on them by the Immigration Act. They are nevertheless still employees of the Immigration and Nationality Department of the Home Office and, when not exercising their functions as immigration officers, no different from any other member. We did not understand Mr Drabu to argue that the principles of the Carltona case could not or did not apply to the Home Office and to responsible officials in the Immigration and Nationality Department. Nor was any challenge mounted against Mr Barrell on the ground that he did not hold such a post as would otherwise qualify him as a "responsible official" within the Carltona principle. It follows that for Mr Drabu to succeed, he has to establish that by virtue of the Immigration Act 1971 either immigration officers may undertake only the tasks conferred on them by the statute or that the taking of a decision to make a deportation order is a function inconsistent with those specified by the statute. In our view, the Immigration Act has neither effect. Nowhere does it specify that a person appointed as an immigration officer can only exercise the powers conferred by the Act. Secondly, the taking of decisions to make deportation orders cannot be said to be in any way inconsistent with the statutory powers conferred on immigration officers ie to give or refuse leave to enter or the powers of examination, arrest, detention and removal ancillary to those powers. Further, the Act makes plain that even in respect of the statutory powers, the immigration officer is not an official set apart from (or in) the Home Office -- he is enjoined to act "in accordance with such instructions (not inconsistent with the immigration rules) as may be given . . . by the Secretary of State" (schedule 2 paragraph 1(3)). We therefore agree with Mr Cunningham that the dichotomy between the Secretary of State and immigration officers which appears in the Act has its purpose in conferring exclusive powers on immigration officers. It is not for the purpose of removing nor does it remove a person appointed as an immigration officer from the ambit of "responsible officials" in the Immigration and Nationality Department who, as such, can act as or for the Secretary of State in immigration matters. Should we be wrong about this, we go on to consider the 'belt and braces' aspect of Mr Cunningham's submission -- in other words, that if Mr Barrell needed delegation of the Secretary of State's authority, he had it. Mr Cunningham relies on the Hansard report and the certificate to which we have referred. The first reads: "Mr Renton: Except where specifically provided otherwise, it is well understood that powers conferred on a Minister by statute can be exercised on his behalf by his officials. The Immigration Act 1971 clearly distinguishes between the powers of the Secretary of State (including, therefore, officials acting on his behalf) and those of an immigration officer. Nevertheless, it is possible for the Secretary of State to delegate his powers to a senior member of his staff in the immigration service who is not, in his capacity as an immigration officer, involved in the case in question. Where potential deportees under section 3(5)(a) are traced by the immigration service, my right hon Friend decided, on this basis, and with effect from 1 August 1988, to delegate his powers to issue a notice of intention to deport, to issue a restriction order, to detain and to authorise supervised departure to members of the immigration service at not less than inspector level." The certificate reads: "This note responds to a request from the Tribunal for information about the date on which the Secretary of State delegated certain of his deportation powers to members of the Immigration Service. The Secretary of State decided on 13 June 1988 to delegate certain of his deportation powers to members of the Immigration Service at not less than Inspector level. The terms of the delegation are set out in the attached copy of an extract from Hansard which records a reply given by Mr Renton, the Minister of State, on 20 December 1988. The effective date of the delegation was 1 August 1988." As to this aspect, Mr Drabu submits that the Secretary of State has no power so to delegate his functions. There is no power conferred by statute or at common law. It is all very well for Mr Renton to say that the Secretary of State has such powers, but whence does he derive them? This purported delegation is a matter of public interest, not a private matter, and such delegation has never been published. He asked us to find that the purported delegation was unlawful and to dismiss the appeal. For the Carltona doctrine not to apply but for the delegation to be valid, the effect of the statutory distinction would be almost to create (as it were) a sub-department of the Immigration and Nationality Department, consisting of immigration officers. As a consequence, the members of this sub-department would fall outside the Carltona ambit but as they are essentially concerned with immigration control, decisions on those matters could be delegated to them. Assuming that (i) the effect of the statutory wording is to distinguish between immigration officers and other responsible officials of the Immigration and Nationality Department generally; and (ii) decisions on deportation matters are delegable, we think immigration officers are persons to whom the decisions may be delegated. As to (i) immigration officers are members of the Immigration and Nationality Department. As we have said, the fact that they are officials who, subject to instructions from the Secretary of State, must decide on leave to enter does not mean they cannot (and indeed do not) perform other immigration functions not inconsistent with those conferred on them. As to (ii) the extent to which the framework of the Immigration Act permits delegation by the Secretary of State to members of the Immigration and Nationality Department, must be considered in respect of the particular type of act delegated. It may be that in respect of some acts, the statutory responsibility placed on the Secretary of State (and exercised by responsible officials) is not capable of delegation. A decision made under delegated powers could not normally be revoked and it may not be open to the Secretary of State in every case to remove from his responsibility matters which the statute places within it. However, in respect of a decision to make a deportation order first, as Mr Cunningham said, the decision is not final in the sense that a deportation order is required for it to be implemented. Prior to making that order, the Secretary of State will receive a summary of all the factors relevant to making the decision (see HCV 169). Secondly, a decision to make a deportation order may always be withdrawn and there is no suggestion that there has been a delegation of the power to withdraw a decision. It follows that even if the Secretary of State may not participate in or interfere with any decision taken under the delegated power, it is always open to him to withdraw that decision. Delegation simply of the decision to make a deportation order does not therefore have the effect of surrendering the statutory deportation powers and the validity of the delegation must be viewed in that light. It is indeed curious that a delegation made on 13 June to take effect on 1 August was not publicly announced until 20 December. However, on the evidence, at the date of the decision in this case the power had been delegated. The terms of the delegation restrict the powers to a defined category of members of the Immigration and Nationality Department and it should be noted that this is a category which, if within the Carltona doctrine, would no doubt qualify "as responsible officials" who could act as the Secretary of State. In our view, such a delegation is permissible within the terms of the Act. The officials to whom the power is delegated are officials of the department concerned with immigration, the statutory framework within which they act does not prohibit them taking such decisions, and the Secretary of State has not purported to delegate all deportation powers. The delegated power to take a decision is subject to an overriding control by the Secretary of State both as to the continued operation of the decision and as to its implementation through a deportation order. The notice of the decision to make a deportation order in this case was signed by Mr Crowe, an immigration officer (on behalf of the Secretary of State). As we understand it, no point is taken on this and rightly so. On the evidence, the decision was taken by Mr Barrell and he either took it as the Secretary of State or under the powers delegated to him. Mr Crowe is clearly acting on Mr Barrell's behalf and therefore clearly acting in substance "on behalf of the Secretary of State". The notice is therefore valid under the terms of the Immigration Appeals (Notices) Regulations 1984. The decision was validly taken under the Immigration Act 1971. The adjudicator allowed the appeal apparently because he considered that there was not sufficient evidence that the Secretary of State had acted fairly. This question did not arise, for the reasons given by the Tribunal in the case of Aujla. We consider consequently that he misdirected himself in this respect, and in view of our findings on the other matters canvassed before us the appeal is allowed.

DISPOSITION:

Appeal allowed

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