Kaya v. Secretary of State for the Home Department

KAYA v SECRETARY OF STATE FOR THE HOME DEPARTMENT

IMMIGRATION APPEAL TRIBUNAL

[1991] Imm AR 572

Hearing Date: 12 June 1991

12 June 1991

Index Terms:

Common Travel Area -- Republic of Ireland -- whether a person entering the United Kingdom from the Republic of Ireland is "deemed" to be granted leave to enter -- the restrictions and conditions imposed on such a person by the 1972 Order -- whether notice of those restrictions and conditions has to be given to a person in writing. Immigration Act 1971 (as amended) ss 1(2), 1(3), 3(5), 4(1), 9(2), 9(3), 9(6), sch 2 paras 1(3), 6, sch 4: Immigration (Control of Entry through Republic of Ireland) Order 1972 (as amended) art 4.

Deportation -- decision of Secretary of State to initiate deportation proceedings against the appellant as an overstayer -- appellant had entered United Kingdom from the Republic of Ireland -- not granted "leave" -- period of stay in United Kingdom restricted by provision of the Order -- whether when applicant remained for a longer period in the United Kingdom the Secretary of State had power to initiate deportation proceedings -- whether the notice of intention to deport was invalidated by the use of the term "deemed to have been given leave." Immigration Act 1971 (as amended) s 3(5)(a).

Held:

The appellant was a citizen of Turkey who had entered the United Kingdom through the Republic of Ireland. The Secretary of State decided to initiate deportation proceedings against him, he having concluded that the appellant was an overstayer. The notice of intention to deport stated that the appellant had been "deemed to have been granted leave to enter for three months". On appeal it was argued that under the provisions of the 1972 Order, the appellant was not granted "leave", and the Secretary of State was not entitled to assert that the appellant had been "deemed to have been granted leave": it follows, so argued counsel, that there was no power in law for the Secretary of State to have taken the decision he took. Held: 1. Under the provision of the 1972 Order the appellant did not require "leave" to be in the United Kingdom and was never given leave. 2. Nevertheless the 1972 Order imposed a restriction: that was of direct effect and did not require notice in writing to the appellant. The restriction limited his permitted stay to three months. 3. By virtue of s 9(3) of the 1971 Act, the power to issue a deportation order extended to circumstances where there was a breach of a condition imposed by the 1972 Order. 4. In the event the notice was not invalidated by the erroneous use of the term "deemed", and the Secretary of State had had the power in law to issue the notice.

Counsel:

A Riza QC for the appellant; Mrs P Culley for the respondent PANEL: Professor DC Jackson (Vice-President), N Kumar Esq JP, BJS Edmond Esq

Judgment One:

IMMIGRATION APPEAL TRIBUNAL: The appellant, a citizen of Turkey, appeals against a decision of an adjudicator (Mr JG Storry) dismissing his appeal against the decision to make a deportation order against him by virtue of section 3(5)(a) of the Immigration Act 1971. The case falls within the ambit of section 5(1) of the Immigration Act 1988 and the grounds of appeal are therefore restricted to asserting that there is in law no power to make the deportation order for the reasons stated in the notice of decision. That notice reads: "In the light of all the known circumstances of your immigration history (including your own admission) the Secretary of State is satisfied that you arrived in the United Kingdom on or about 29 August 1988. In accordance with the Immigration (Control of Entry through Republic of Ireland) Order 1972 you were deemed to have been given leave to enter for 3 months. The Secretary of State is satisfied that you are remaining without authority. The Secretary of State has therefore decided to make an order by virtue of Section 3(5) of the Immigration Act 1971 requiring you to leave the United Kingdom and prohibiting you from re-entering while the order is in force. He proposes to give directions for your removal to Turkey, the country of which you are a national or which most recently provided you with a travel document". There is no issue as to the facts. The appellant arrived in Ireland on 26 August 1988, and 3 days after that he came to the United Kingdom. As he was coming from the Republic of Ireland there was no passport control. The first question is, therefore, whether the notice of decision is accurate in basing the power to deport the appellant on the proposition that he was "deemed to have been given leave to enter for 3 months". If that does not accurately express the legal consequence of entry from Ireland but the appellant is in some way restricted in the authority to be here, the further question arises whether the appellant's appeal succeeds because of the stringent wording of section 5 of the 1988 Act. The applicable legal framework Section 1(2) of the Immigration Act 1971 makes it clear that those who do not have the right of abode may "live, work and settle in the United Kingdom by permission . . .". Section 1(3) provides for the "common travel area", and (inter alia) that a person entering this country from the Republic of Ireland, the Channel Islands or the Isle of Man does not require leave to enter the United Kingdom. Section 9(6) confers power on the Secretary of State by order to exclude the Republic of Ireland from section 1(3) for such purposes as may be specified in the order. Section 9(2) confers specific power to impose restrictions on the duration of a period for which a person may remain and on the ability to seek employment. So far as is relevant, the provision reads: "9(2) Persons who lawfully enter the United Kingdom on a local journey from a place in the common travel area after having either -- (a) entered any of the Islands or the Republic of Ireland on coming from a place outside the common travel area; or (b). . . if they are not patrial (and are not to be regarded under Schedule 4 to this Act as having leave to enter the United Kingdom), shall be subject in the United Kingdom to such restrictions on the period for which they may remain, and such conditions restricting their employment or occupation or requiring them to register with the police or both, as may be imposed by an order of the Secretary of State and may be applicable to them". (Schedule 4 refers to the integration of the immigration laws of the Channel Island and the Isle of Man with the United Kingdom). The Secretary of State has exercised his powers under section 9(6) through the Immigration (Control of Entry through Republic of Ireland) Order 1972 (as amended). It is common ground that article 4 of that Order is relevant to the appellant. This, so far as it is relevant, reads: "4(1) Subject to paragraph (2), this Article applies to any person who does not have the right of abode in the UK under section 2 of the Act and is not a citizen of the Republic of Ireland and who enters the UK on a local journey from the Republic of Ireland after having entered that Republic -- (a) on coming from a place outside the common travel area; or (b) after leaving the UK whilst having a limited leave to enter or remain there which has since expired.

. . .

(3) A person to whom this Article applies by virtue only of paragraph (1)(a) shall, unless he is a visa national who has a visa containing the words 'short visit', be subject to the restriction and to the condition set out in paragraph (4). (4) The restriction and the condition referred to in paragraph (3) are -- (a) the period for which he may remain in the UK shall not be more than three months from the date on which he entered the UK; and (b) unless he is a national of a state which is a member of the European Economic Community, he shall not engage in any occupation for reward". It follows that as, on entry, the appellant was not a visa national, his authority or permission to be in the United Kingdom was limited to a period of 3 months. The power to make a deportation order on a person who has remained in the United Kingdom without authority is rooted in section 3(5)(a) of the Immigration Act 1971. This reads: "3(5) A person who is not patrial shall be liable to deportation from the United Kingdom -- (a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave". The link between the "authority" under which the appellant remained in this country following his entry and a power to make a deportation order in relation to him is to be found, if anywhere, in section 9(3) of the Act of 1971. This reads: "9(3) Any provision of this Act applying to a limited leave or to conditions attached to a limited leave shall, unless otherwise provided, have effect in relation to a person subject to any restriction or condition by virtue of an order under subsection (2) above as if the provisions of the order applicable to him were terms on which he had been given leave under this Act to enter the United Kingdom". The contentions Mr Riza's case was that there was no power in the Act of 1971 for the Secretary of State to deem that leave had been granted. Mr Riza argued that although the Secretary of State could by statutory instrument provide for the deeming of leave, under the Act as it stands leave must be granted by an immigration officer (section 4(1)) and that the grant of the leave is contained in the notice of writing which usually takes the form of a stamp in the passport. Mr Riza said that because of the legal framework, a person such as the appellant could not be deported unless, after entry, he had been granted leave to remain and then there would be a foundation for a case of overstaying. Mrs Culley argued that it was not essential that leave be given in writing. Mrs Culley reminded us that schedule 2 paragraph 6 provided that leave should be deemed to have been given where an immigration officer is considering whether to grant limited leave and fails to do so within a specified period of time. Mrs Culley contended that, by virtue of section 9(3) of the 1971 Act, it was appropriate to describe the authority on which the appellant remained in the country as "deemed leave". Conclusions It is clear that the power to grant leave to enter is vested exclusively in immigration officers, although the Secretary of State may direct an immigration officer as to how that power should be exercised (schedule 2 paragraph 1(3)). It is also clear that the obligation to grant the leave through notice in writing is qualified in that that obligation applies "unless otherwise allowed by this Act . . ." (section 4(1)). Whatever the ambit of the qualification on the duty to grant leave by notice in writing, it seems to us that the appellant in this case did not need leave to be in the United Kingdom and never had it. It further seems that section 9(3) cannot be read so as to require the restriction provided for in the 1972 Order not to be operative unless imposed by an immigration officer through a notice in writing. First, the restriction is imposed on entry by virtue of the Order directly. It follows that if the requirements as to notice of section 4(1) fall within the ambit of section 9(3), they are also excluded from its effect. It is "otherwise provided" by the terms of the Order, that phrase not being limited to a provision of the Act. Secondly, even if section 4(1) was applied to the imposition of the restriction, the restriction falls within the exception in that section to the requirement of notice in writing. It is (in the words of section 4(1)) "otherwise allowed" by the Act simply by virtue of section 9(2) and the Order made under it. It is noticeable that in this case the wording is "allowed" and not "provided for". The imposing of a restriction does not therefore have to be by writing, and we agree with the approach of the adjudicator to this issue. Given that, it seems to us that the power to make a deportation order conferred by section 3(5)(a) is directly adapted to the imposition of a restriction by the words of section 9(3). As a consequence, the power to make a deportation order applies to the appellant as if the duration of three months was a term on which he had been given leave under the Act to enter the United Kingdom. The final question is, therefore, whether the foundation of the power to make a deportation order in respect of the appellant is accurately described as resting on the fact that he was "deemed to have been given leave to enter for 3 months". The adjudicator thought that any point taken on the use of the word "deemed" was an exercise in semantics, defining "deemed" as "to be treated as". However, the adjudicator seems to have proceeded on the basis that there was a necessity for a person to have leave in the United Kingdom before he can become an overstayer. In the adjudicator's view, the appellant had an implied leave or a form of leave as if he had been given a notice of leave in writing. Therefore, thought the adjudicator, the appellant was "for all intents and purposes deemed to have been given leave to enter". However as we have said, in our view, the appellant did not have expres or implied leave. We agree that looking at section 3(5)(a) alone and as the Tribunal has held on earlier occasions, the power to deport as an overstayer requires the granting of leave. However, that is qualified by the operation of section 9(3) which, as we have said, adapts the power to make a deportation order to the circumstances of the appellant who has no leave but is subject to a restriction on the duration of the time he is permitted to remain in this country. It is, therefore, not strictly accurate to describe the appellant as a person who, by virtue of the 1972 Order, was deemed to have been given leave to enter for 3 months. We therefore go with Mr Riza to this extent that that Order does not provide that a person within it is to be deemed to have been given leave to enter. However, by virtue of section 9(3), the restriction is to be regarded as if it were a term on which leave had been granted. For the notice to say that "you were deemed to have been given leave to enter for 3 months" is, therefore, an acceptable summary of the substantive operation of the legislation. The notice then identifies the primary reason for the decision to make the deportation order ie that the appellant was, at the date of decision, remaining without authority. The only defect of the notice was in giving the impression that the appellant was deemed to have been given leave to enter for 3 months by virtue of the Order of 1972. In truth the restriction imposed by that Order is to be treated as a condition of leave by virtue of section 9(3) of the Act. The omission of the statutory link translating the effect of the restriction into the effect of a condition of leave does not, in our view, render the notice defective. On receipt of the notice the basis for the decision to make the order would have been perfectly clear to the appellant. That basis was accurate in that the appellant, on entry, had permission to remain for three months and that permission was to be taken to be a condition of leave. The appeal is dismissed.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Turkan & Co