Makinde v. Secretary of State for the Home Department

MAKINDE v SECRETARY OF STATE FOR THE HOME DEPARTMENT

IMMIGRATION APPEAL TRIBUNAL

[1991] Imm AR 469

Hearing Date: 5 February 1991

5 February 1991

Index Terms:

Deportation -- overstayer -- appellant in custody on date leave expired -- passport not returned to appellant until day notice of intention to deport served on him -- notice asserted he had remained in the United Kingdom "without authority" -- whether in the events which had happened the appellant was in the United Kingdom "without authority" when his leave expired -- the distinction between "leave", "authorisation" and "authority". Immigration Act 1971 (as amended) ss 3(1), 3(5)(a), 5(1): Immigration Appeals (Notices) Regulations r 4(1): HC 169 para 158.

Held:

The appellant is a citizen of Nigeria whose leave to remain in the United Kingdom expired on 15 January 1989. The appellant however had been arrested on criminal charges on 7 November 1988: he was detained in custody until 23 March 1989. When he was discharged, because the prosecution offered no evidence, his passport was retained by the police. He was not permitted to collect his passport until June 1989: when he attended the police station to collect it, he was arrested as an overstayer and, the same day, served with a notice of intention to deport. The notice stated that he had remained in the United Kingdom since 15 January 1989 (the date his leave had expired) "without authority". Exercising his limited rights of appeal, the appellant argued that if he were in custody he could not be held to be in the United Kingdom "without authority". The Tribunal concluded that it had jurisdiction to determine the issue, and reviewed it in the light of the distinctions to be drawn between "leave", "authorisation" and "authority". Held: 1. In using the term "authority" the Secretary of State had used a phrase distinct from the statutory term "leave". 2. The Tribunal assumed that there was a distinction between "authorisation" (the term considered in Idrish) and "authority". 3. Although the appellant was not detained by the authority of the Secretary of State, he was remanded in custody by the authority of a court. 4. Adopting a commonsense construction of the notice of decision, the appellant was not in the United Kingdom "without authority" when his leave expired.

Cases referred to in the Judgment:

Muhammad Idrish v Secretary of State for the Home Department [1985] Imm AR 155. Taj Mohd Swati v Secretary of State for the Home Department [1986] Imm AR 88. Catherine Mokuolu and anr v Secretary of State for the Home Department [1989] Imm AR 51. R v Secretary of State for the Home Department ex parte Beatrice Allegret [1989] Imm AR 211. John Emerson Minton v Secretary of State for the Home Department [1990] Imm AR 199. Sonia Malhi v Secretary of State for the Home Department [1990] Imm AR 275. R v Secretary of State for the Home Department ex parte Dukobu [1990] Imm AR 390.

Counsel:

R Scannell for the appellant; A Gammons for the respondent PANEL: Professor DC Jackson (Vice-President), AA Lloyd Esq JP, Major D Francombe

Judgment One:

IMMIGRATION APPEAL TRIBUNAL: The appellant, a citizen of Nigeria, appeals against a determination of an adjudicator (Mr JM Simons) dismissing his appeal against a decision to make a deportation order against him by virtue of section 3(5)(a) of the Immigration Act 1971. The decision was taken on 3 July 1989 and falls within the ambit of section 5(1) of the Immigration Act 1988. As a consequence, the appellant is restricted in the scope of his appeal to asserting 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 decision. The notice of decision reads: "You were last given leave to enter the United Kingdom on 9 June 1986 for one month as a visitor, and you were subsequently granted extensions of stay until 15 January 1989. The Secretary of State is satisfied that you have since then remained without authority". The sole point argued before us and on which the appeal turns, is whether the notice of decision is accurate in describing the appellant as remaining since 15 January 1989 "without authority". The facts which raise this issue were set out by the adjudicator in his determination as follows: "By his grounds of appeal the appellant claimed that he was prevented from applying for a further extension as he was held in custody and refused bail, and even after his release the police refused to return his passport to him. From what he told me in evidence at the appeal hearing what happened was that on 7 November 1988 [that is shortly before his leave was due to expire] he was arrested by the police and charged with conspiracy to defraud. His passport and other documents were seized, and held long after he was released from custody. He remained in custody, he told me, until 23 March 1989, when he was discharged as the prosecution had failed by then to adduce evidence. He said that he did tell his then solicitors that his leave was due to run out, and asked them to do something, but they had not. He later changed his solicitors. Even after his discharge he said he had difficulty in getting his passport released. I was shown correspondence between his solicitors at that time and the crown prosecution service. Indeed I was also shown a letter written by his Member of Parliament to the crown prosecution service. His solicitors wrote to him on 22 June 1989 to tell him that the police were then prepared to release the passport and that he should arrange to call at Finchley Road Police Station to collect it. When he did, and he told me that was on 3 July [the day the decision to deport him was made] an immigration officer attended the police station and arrested him for overstaying. He told me that he was interviewed and asked about his overstaying, and that he told the immigration officer about not having made an application because he was waiting for his passport back, and that that had been with the police since his arrest. He said he was asked about his studies, and his family background in Nigeria. Then, he said, the immigration officer left the room for a short time, returned and told him he could not have bail, and handed him the notice of the decision to deport him". The adjudicator continued that he viewed the appellant as an innocent man placed in an unenviable position, but that it was not necessary for him (the adjudicator) to decide whether he had been lawfully arrested and detained. The adjudicator concluded (as we do) that the circumstances which were set out before him by the appellant were plainly matters relevant to the question of whether to take the decision to make the deportation order. When the case was heard by the adjudicator, the law was understood to be that the jurisdiction of the appellate authorities extended to enquiring as to whether there had been any procedural irregularity in the process leading up to the decision to make the deporation order. That appears to have been the central feature of the appeal as presented to the adjudicator, but it is clear from subsequent decisions (and it is accepted on all sides) that the appellate authorities have no such power. They are restricted to the issue, as the statute provides, whether on the facts of the case there was in law no power to make the deportation order for the reasons stated in the notice of decision. The adjudicator commented that there was no need for him to decide whether the appellant could be said to have remained without authority at the time when he was in custody. However, as we have said, that is now the sole remaining point in the appellant's appeal. We must first consider whether we have the jurisdiction to consider the argument and, if we conclude that we do, the validity of the contention in the context of the immigration legal structure. Jurisdiction We accept Mr Scannell's argument that, in the case, the reason stated in the notice of decision is, as we have said, that the appellant remained in this country "without authority" from 15 January 1989 until the date of the decision (3 July 1989). It is clear that the appellant has remained in this country without leave since 15 January 1989, and had the notice of decision stated that the Secretary of State was satisfied as to this fact then, as Mr Scannell said, there would have been little to be said before us on behalf of the appellant. However, the reason given by the Secretary of State in the notice of decision was that the appellant has remained "without authority". We must therefore examine whether that reason may in law be a foundation for the making of a deportation order. We did not understand Mr Gammons to contest that, on the basis of the words of the notice of decision, we had jurisdiction to enquire into this issue. We agree with Mr Scannell that we have that jurisdiction. Was the appellant in this country without authority from 15 January 1989? Mr Scannell argued that in the context of immigration law "authority", as used in the notice of decision, was not to be equated with "leave". Mr Scannell contended that there were at least three similar but distinct concepts indicating that a person had "permission" to be in this country -- "leave", "authorisation" and "authority". In support of the proposition that "leave" was not the only method of indicating "permission", Mr Scannell referred us to the Tribunal decision in Idrish [1985] Imm AR 155. That case dealt with a decision to make a deportation order against an applicant by virtue of section 3(5)(a) before the enactment of the Act of 1988. The wording of the notice of decision contained the same phrase as does the notice in this case that the Secretary of State was satisfied that the applicant had "remained without authority" since a particular date, that date being the refusal of leave to appeal against a decision refusing variation of leave. The applicant in that case had challenged in the High Court and subsequently in the Court of Apepal and House of Lords the decision by the Tribunal to refuse leave in respect of the refusal to vary his leave. Those proceedings lasted some 18 months subsequent to the refusal of leave by the Tribunal, and the solicitors had written to the Home Office to the effect that they trusted that "until the legal process has been exhausted Mr Idrish will not be required to leave the United Kingdom". The Home Office did not respond to that letter and one of the issues in the case was the effect of the letter and the lack of response in the context of an immigration rule which provided that deportation would normally be the proper course where the person ". . . has remained without authorisation" (see HC 169 paragraph 158). The Tribunal held that "authorisation" in paragraph 158 was not to be equated with "leave". In so concluding the Tribunal stressed the technical nature of "leave" as used in the Immigration Act and immigration rules, that there were categories of persons whose presence in this country was authorised by statute and that it made sense to provide for the exercise of a discretion by the Secretary of State to allow a person to be in this country without leave so that the permission to remain would remain informal and not attract such rights as rights of appeal. The Tribunal recognised that, by virtue of section 3(1) of the Immigration Act 1971, unless the statute provided otherwise, leave to enter was required (see also now Mokoulu [1989] Imm AR 51). However, as the Tribunal said, no such mandatory requirement is specified in regard to remaining in this country. We add only that the conclusion that a person within immigration control and normally requiring leave to be lawfully in this country may be here lawfully without it, is supported by the wording of section 1(2) which provides that those not having the right of abode "may live, work and settle in the United Kingdom by permission . . .". In Idrish the question was whether the sending of the solicitors' letter and the lack of response amounted to "authorisation" within the meaning of HC 169 paragraph 158. The Tribunal concluded that it did not because of the particular wording of the letter. In this case, by virtue of section 5(1) of the Act, the immigration rules are not relevant to the appeal and, by virtue of the wording of the notice, the question is whether the appellant could be said to be here "without authority". Mr Scannell argued strongly that "authority" was distinct from "authorisation" and did not carry the implication of a conferment of some kind of permission which authorisation did. We are prepared to assume that "authority" is distinct from "authorisation" and we are also prepared to assume that it may be said, in a given case, that an applicant had been in this country with the authority of the Secretary of State even though he had no leave and even though the Secretary of State had not "authorised" his presence in the sense of expressly or impliedly agreeing that he could remain. In our view, if by the authority of the Secretary of State an applicant was detained, particularly if that detention was under provisions of the Immigration Act 1971, it would seem difficult to argue that he was not in this country with the authority of the Secretary of State. It would be somewhat removed from commonsense and indeed the legal structure of the Immigration Act for a Secretary of State to say, in effect, "I authorised your detention" and at the same time to maintain that "you are not here with my authority". In this case, however, the appellant was detained at the critical date ie 15 January 1989 (and for some months thereafter) under authority of a court. In our view, such detention could not be said to be with the authority of the Secretary of State. If therefore the issue before us was a construction of a statutory provision or immigration rule focusing on the concept of authority, we would have little difficulty in construing it as authority of the Secretary of State. He is the Minister of the Crown responsible for immigration under the Immigration Act 1971, and concepts appearing in that Act and in the rules made under it must be construed in that light. However, we are not concerned (as was the Tribunal in Idrish) with the meaning of a provision of the Act or rules. We are concerned with the construction of a notice of decision. The critical nature of the notice of decision in the immigration structure is shown by the requirement under section 4(1) of the Immigration Act 1971 that a notice granting leave should be in writing and that the duration of that leave should be clear from that notice (see R v Secretary of State ex parte Minton [1990] Imm AR 199). As regards notices of decisions adverse to the applicant, if such decisions are appealable the form and content of the notice is governed by the Immigration Appeals (Notices) Regulations 1984. By regulation 4(1) the notice must "include a statement of the reasons for the decision". It seems to us that the criteria of construction of a notice of decision is not any technical meaning that a word might have in immigration law, but the meaning which would be conveyed to a reasonable recipient. If therefore the Secretary of State chooses to depart from technical words in the Act which carry a plain meaning and uses words which in the context of the particular recipient are ambiguous, that ambiguity must be taken into account in deciding on the meaning of the notice. This is the more so in respect of decisions to make deportation orders which fall within section 5(1) of the Immigration Act 1988. That Act removes the right of a person in respect of whom such a decision is made to obtain a review of the merits of the decision, and to challenge the weight given by the Secretary of State to any relevant circumstances which there is an obligation to take into account (see HC 169 paragraph 156). Unless the notice of decision is clear in a particular case, it appears to us to be difficult for a recipient to know not only the weight given to relevant circumstances but the circumstances considered relevant. So in this case the relevance and indeed the weight to be given to the circumstance, that at the date of expiry of leave the appellant was in prison, may well depend upon the meaning to be given to the word "authority". We are conscious that the phrase "without authority" is a phrase which has been in use by the Secretary of State for a considerable time, and we are also conscious that it has continued in use in notices of decision in cases within section 5(1). Further, in the High Court it has been assumed on occasion that "without authority" means simply that the person was an overstayer (see eg R v IAT ex parte Malhi per Dillon LJ [1990] Imm AR 275 at page 277). However, no case was cited to us in which the phraseeology has been used where there was an alternative basis for a person remaining in the United Kingdom other than his or her own free will. The problem in this case is that, at the date of decision, the appellant could not have left the United Kingdom however hard he tried. It is established that it is not necessary for the Secretary of State to give reasons for his reasons. It is sufficient to reflect the words of the appropriate rule or statutory provision (see eg R v Secretary of State ex parte Swati [1986] Imm AR 88; R v Secretary of State ex parte Allegret [1989] Imm AR 211). In refusing an application for leave to appeal in R v IAT ex parte Dukobu [1990] Imm AR 390, Kennedy J rejected an attempt by counsel to resurrect a distinction between "grounds" for a decision and "reasons" for a decision. The learned judge held that to state that the Secretary of State was "satisfied that you have since remained without authority" was sufficient reason to satisfy the requirement of the Notices Regulations. Kennedy J said: "It seems to me however that where one has, as here, the Secretary of State dealing with a perfectly simple concept -- the question of overstaying -- and where he says, as he does say in this case, that the applicant has overstayed and he is going to deport him, he has decided, as the wording reads, to make an order by virtue of section 3(5). What he is doing is identifying the basis of his authority and also indicating the reason why he proposes to exercise it. By inference he is also saying that he is not prepared to exercise any discretion that he may have to act otherwise". In that case, the applicant had remained in this country without any vestige of authority from 27 May 1987 until 22 February 1989. Even though, therefore, the notice is not couched in terms of the Act or rules, there was no "authority" to which the applicant could point which gave him permission to stay in this country or, as in this case, made it impossible for him to depart. It follows that, despite its departure in terminology from the statutory basis of liability to deportation, the notice unambiguously reflected the appellant's status. On the contrary in this case, in one sense the appellant is here with authority in the sense that the state through one of its organs has made it, whether for a right or wrong reason, impossible for him to depart. We cannot view immigration law in a vacuum nor can we take it that the Secretary of State's understandings of language used in an immigration context are necessarily those to whom that language is addressed. In particular where the language departs from the ground on which an action may be taken, it cannot be that any understanding of the Secretary of State that the ground is reflected in the language should lead to any necessary inference that it is. Adopting a common sense construction of the notice of decision, in our view, the Secretary of State should be held to the words of his notice. It seems to us that if a reasonable man were asked whether the appellant was in this country "without authority" when he was in prison, the answer would be "no". That being so, and the Secretary of State having chosen to depart from the "ground" or "reasons" quite clearly and categorically set out in the Immigration Act 1971, the appeal must be allowed. In our view, on the facts of the appellant's case, there was in law no power to make the deportation order for the reasons stated in the notice of decision. The appeal is allowed. As a consequence, it is of course open to the Secretary of State to take a fresh decision to make a deportation order. If the Secretary of State should do so, then no doubt he will bear fully in mind the length of the overstay and the circumstances which may have contributed to it and which were outlined in the evidence of the appellant to the adjudicator.

DISPOSITION:

Appeal allowed

SOLICITORS:

Jane Coker & Co