Secretary of State for the Home Department v. Peters

SECRETARY OF STATE FOR THE HOME DEPARTMENT v PETERS

Immigration Appeal Tribunal, TH/44205/91 (8961)

[1993] Imm AR 187

Hearing Date: 26 June 1992

26 June 1992

Index Terms:

Deportation -- student -- overstayer -- restricted rights of appeal -- appellant asserted that before the expiry of his leave application had been made for an extension -- no record of receipt of application or passport by Home Office -- whether adjudicator entitled to allow appeal on accepting that the documents were sent if it were not shown that they were received. Immigration Act 1988 s 5(1).

Held:

The respondent before the Tribunal was a citizen of Nigeria who after being granted leave to enter the United Kingdom as a visitor, asserted that during the currency of that leave he had applied for variation of leave as a student. The Home Office had no record of the receipt of such an application. No extension of leave was granted: the Secretary of State concluded the respondent had overstayed his leave and decided to initiate deportation proceedings against him. An appeal was allowed by an adjudicator. He saw evidence that satisfied him that the application for an extension of leave had been sent by the respondent's college and concluded that the burden of proof on the respondent had been discharged. Held: 1. The adjudicator had erred in law in his approach. 2. For an application for variation of leave to be made for the purpose of the 1971 Act and the rules, it had to be shown that the application had been received by the Home Office. 3. The evidence before the adjudicator had not shown that the application had been received by the Home Office. 4. It followed that at the date of the Secretary of State's decision the respondent had had no outstanding application for variation of leave and the Secretary of State accordingly had had the power to take the decision he had taken.

Counsel:

D Wilmott for the appellant; The respondent did not appear and was not represented. PANEL: Professor DC Jackson (Vice-President), RE Hunte Esq JP, AK Khandwala JP

THE TRIBUNAL:

The Secretary of State appeals against the decision of an adjudicator (Mr MT Fugard CB) allowing the appeal of Michael Oluwasegun Peters against the decision to make a deportation order against him by virtue of section 3(5)(a) of the Immigration Act 1971. Before the adjudicator the respondent was represented by Mr Ozongwu of counsel, apparently instructed by Christopher Roberts, an immigration welfare law practice of London. By letter of 28 April 1992 Christopher Roberts wrote to the Tribunal stating that, as the respondent had "failed to perfect his instructions", they were withdrawing their representation. By notice of 11 May 1992 sent to the address of the respondent as given in evidence to the adjudicator, the Tribunal notified the respondent of the date, place and time of the hearing. Being satisfied that the respondent was therefore notified in accordance with the Immigration Appeals (Procedure) Rules 1984, we decided to proceed with the hearing in the respondent's absence pursuant to Rule 34(2) of those rules. The notice of decision dated 5 June 1991 reads:

"You were last given leave to enter the United Kingdom on 21.5.89 for 6 months as a visitor. An application for leave to remain as a student was refused on 5.6.91. The Secretary of State is satisfied that you have since remained without authority".

The case falls within the ambit of section 5(1) of the Immigration Act 1988, and the respondent's grounds of appeal to the adjudicator were therefore restricted to asserting that there was in law no power to make a deportation order for the reasons stated in the notice of decision. The only point on which the power to make the order was challenged before the adjudicator was an assertion by the respondent that he had been granted leave to enter the United Kingdom on 21 May 1989 and, within that current leave (ie on 9 November 1989), an application had been made on his behalf for leave to remain as a student. If that were shown to be so, the application would be outstanding, and by virtue of the Variation of Leave Order 1976 the respondent would not be remaining without authority as asserted in the notice of decision. There was before the adjudicator documentary evidence concerning the respondent's stay in this country, and the respondent gave oral evidence. By letter of 21 September 1991 the registrar's office of the City of London College of Higher Education stated that on 9 November 1989 Mr Peters' passport, together with a college letter and evidence of funds, were forwarded to the Home Office for the purpose of extending his leave to remain. The registrar's office stated that the college believed that the documents had been received by the Home Office until on 23 August 1990 they received a letter notifying the college of the non-receipt of the passport. Investigations had then been undertaken with the post office to trace the missing passport, but without success. The college indicated that there were two other students from the college who had their passports mislaid "during the period of postal strike of November 1989". A copy of a letter of 9 November 1989 from the college to the Home Office, applying for leave for Mr Peters to remain as a student, is on file. It was apparently produced at the hearing by or on behalf of Mr Peters. Other evidence before the adjudicator included the explanatory statement and two immigration officers' reports, the first being the record of the interview concerned with the decision to make the deportation order and, the second, an earlier report (dated 16 April 1991) following the arrest of Mr Peters for possible immigration offences regarding working as a minicab driver without permission to take employment. The respondent told the adjudicator that his leave expired on 21 November 1989, and that on 9 November 1989 the college had written to the Home Office. The respondent said he obtained a new passport issued in Nigeria, and returned it to the college in March 1991. He said that he had been arrested twice, first in March 1991 and, again, on 5 June 1991. It appears that on the day after the later arrest a late application for leave to remain in the United Kingdom was refused. It should be noted that there are on file letters from the Home Office in August and October 1990 stating that they were unable to locate the passport and college letter which it was said was sent in November 1989. The Home Office requested details of posting such as the recorded delivery or registered post number, the date of posting and where the documents were posted from. The only details on file are those set out in the college letter of 21 September 1991 to which we have referred. The adjudicator summarised the evidence, and concluded his determination:

"The burden of proof in these cases is upon the appellant and the standard of proof is a simple balance of probabilities. Since this case is affected by the Immigration Act 1988 Section 5(1) the question arises whether there was in law the power to make the deportation order for the reasons stated in the notice of the decision. Despite the burden of proof in such cases, the coincidence in this particular case of the respondent's decision of 5 June 1991 without a right of appeal and the appellant's arrest on that day for other reason and the fact that the respondent had for some nine months been making enquiries of the City of London College concerning this appellant, enquiries which were not otherwise adverse to this appellant, is unsatisfactory. A copy of the College's letter of 9 November 1989 to the respondent which sadly went astray with the appellant's in-time application has now been produced. I find that on the balance of probabilities the order now under appeal, although strictly complying with the law on the face of it, did not do so. This appellant has discharged the burden of proof and his appeal is allowed in accordance with the Immigration Act 1971 Section 19(1)(a)(i). This appellant appears to be a person who was not affected by the provisions of the Immigration Rules HC 388 paragraph 111, having regard to paragraph 183 of those rules."

Conclusions

We agree with Mr Wilmott that, with respect, the adjudicator's reasoning in the paragraph we have set out is not clear. We find it difficult to appreciate the relevance of the coincidence of the arrest with the refusal of the late application for leave to remain to the issue of whether there was power to make a deportation order at the date of the deportation decision. As we have said, the sole issue seems to us to be whether, on the evidence, an application for leave to remain was received by the Home Office prior to the expiry of the respondent's leave to enter. It is for Mr Peters to establish, on the balance of probability, that an application was made prior to the expiry of his leave. We are unable to say that, on the balance of probability, such an application was made, the Home Office having made the search and having stated that no application was ever received. It may be that the application together with the passport was mislaid by the Post Office but, regrettably for Mr Peters, for the application to be made for the purposes of the Immigration Act 1971 and immigration rules, it must be shown that it was received. We are conscious that we have not seen the respondent, as did the adjudicator, but the point at issue on the appeal does not turn on any evidence given by the respondent or on any view taken of that evidence. It turns entirely on whether, on the objective facts, it is shown that an application for leave to remain was made in November 1989. As, in our view, it has not been so shown, the appeal must be allowed. The appeal is allowed, and the decision to make the deportation order reinstated. The Tribunal notes that no appeal was brought against the proposed directions to remove the respondent to Nigeria.

DISPOSITION:

Appeal allowed.