Secretary of State for the Home Department v. Singh

SECRETARY OF STATE FOR THE HOME DEPARTMENT v SINGH

Immigration Appeal Tribunal

[1994] Imm AR 127

Hearing Date: 22 October 1993

22 October 1993

Index Terms:

Deportation -- overstayer -- appeal against refusal of political asylum lodged after respondent's limited leave had expired -- whether any right of appeal -- whether adjudicator correct to hold that the Secretary of State was obliged to refer that notice of appeal to an adjudicator for determination as to whether it be permitted to proceed -- the distinction between notice of appeal which was out of time in relation to the time limits imposed by the Procedure Rules and an appeal lodged after the expiration of limited leave. Immigration Act 1971 (as amended) ss 3(5)(a), 14(1): Immigration Appeals (Procedure) Rules 1984 rr 4, 5. Immigration (Variation of Leave) Order 176 (as amended) para 3(1).

Held:

The Secretary of State appealed against the determination of an adjudicator in which he had held that on the material date the Secretary of State had had no power in law to initiate deportation proceedings against the respondent, as an overstayer. The respondent had earlier sought to appeal against a refusal of political asylum: his notice of appeal however had been lodged after the expiration of his limited leave, as extended by the Variation of Leave Order 1976. The Secretary of State accordingly concluded that the refusal attracted no right of appeal and, in due course, the respondent not having left the country, proceeded to initiate deportation proceedings. The adjudicator concluded that the Secretary of State should have referred the notice of appeal to the immigration appellate authorities for it to be determined whether, as out of time, it should have been allowed to proceed on the merits: the appeal, he concluded, was still outstanding. The Secretary of State appealed to the Tribunal. Held 1. The adjudicator had erred in law. 2. Under section 14(1) of the 1971 Act, a person might only appeal against a refusal to vary leave if, at the time of lodging the appeal, he had limited leave. 3. That position was to be distinguished from a case where, having limited leave, a person failed to observe the time limits set out in the procedure rules for the lodging of an appeal. Where that occurred, an adjudicator might allow the appeal to proceed on its merits. He had no power however to over-ride the provisions of section 14(1) of the 1971 Act. 4. It followed that there was no outstanding appeal at the date of the Secretary of State's decision to initiate deportation proceedings and he had in law the power to take that decision.

Cases referred to in the Judgment:

Secretary of State for the Home Department v Said Ken'aan [1990] Imm AR 544.

Counsel:

A Gammons for the appellant; J Oommen of the Immigration Appeals Advisory Service for the respondent PANEL: Professor DC Jackson (Vice-President), RE Hunte Esq JP, AK Khandwala Esq JP

Judgment One:

THE TRIBUNAL: The Secretary of State appeals against the decision of an adjudicator (Mr J Freeman) allowing the appeal of Bhajan Singh against the decision to make a deportation order against him by virtue of section 3(5)(a) of the Immigration Act 1971. We were grateful to Mr Oommen for agreeing to represent the respondent at extremely short notice, thereby enabling us to deal with the preliminary issue and to remit the case for a hearing on the merits. The decision to make a deportation order was taken on 4 February 1993. The notice of decision reads: "You were last given leave to enter the United Kingdom on 3 April 1990 for six months as a visitor. An application for political asylum was refused on 24 June 1992 when your stay was extended to 22 July 1992 under the Immigration (Variation of Leave) Order 1976 (as amended). A further application for leave to remain on the same basis was refused on 7 December 1992 with no right of appeal. The Secretary of State is satisfied that you are remaining without leave." The respondent had arrived in the United Kingdom on 3 April 1990, being granted leave to enter as a visitor for six months. On 5 June 1990 the Immigration Counselling Service applied on the respondent's behalf for asylum. This application was refused on 24 June 1992, the respondent's stay being extended to 22 July 1992. The respondent lodged a notice of appeal on 7 August 1992. The decision to make the deportation order falls within the ambit of section 5(1) of the Immigration Act 1988, and the respondent is therefore restricted in the ambit of his appeal to the consideration of whether -- (a) at the date of decision there was a power in law to make a deportation order; and (b) consideration of whether his deportation would be contrary to the principles of the Refugee Convention. The adjudicator held that at the date of decision there was no power in law to make a deportation order and did not therefore go on to consider the issue of asylum. The adjudicator concluded that there was no power on the ground that the submission of an out of time appeal notice by the respondent in relation to his application for leave to remain imposed an obligation on the Secretary of State to submit that notice to the appellate authority for adjudication as to whether discretion should be exercised in allowing the appeal to proceed. The adjudicator said that the Secretary of State "never took the prescribed way of submitting his allegation that the first appeal was out of time to the decision of the appellate authority and that appeal is still pending". The adjudicator thought that the Secretary of State was not helped by "the fact that the appellant's leave had expired by the time the appellant sent in his first notice of appeal: this requirement relates to applications for further leave if they are to carry a right of appeal on refusal and not to notices of appeal". With respect, we are unable to agree. Section 14(1) of the Immigration Act 1971 provides that ". . . a person who has a limited leave under this Act to enter or to remain in the United Kingdom may appeal to an adjudicator against any variation of leave . . .". That provision means that a person may appeal only if at the time of the appeal he "has a limited leave under this Act". Clearly in this case the respondent did not have limited leave at the time he gave his notice of appeal. The fact that under the Immigration Appeals (Procedure) Rules 1984 there is power to permit an appeal to proceed if the notice of appeal is lodged outside the period set by those rules in relation to giving the notice cannot overcome the fundamental difficulty that there is no right of appeal to which the notice can relate (see eg Ken'aan [1990] Imm AR 544). This conclusion accorded with the views of the representatives, and both were then agreed that the matter should be remitted to the adjudicator for consideration of the issue based on the Refugee Convention. The appeal is allowed, and i. we hold that the respondent has no appeal pending against the refusal of leave to remain; and ii. the matter is remitted to the adjudicator (Mr J Freeman) for consideration of the matters which are within the adjudicator's jurisdiction in this appeal.

DISPOSITION:

Appeal remitted to adjudicator

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