Ali (D.M.) v. Immigration Appeal Tribunal and Others

ALI (D.M.) v IMMIGRATION APPEAL TRIBUNAL AND OTHERS, TH/1436/72(20)

Court of Appeal (Civil Division)

[1973] Imm AR 33

Hearing Date: 13 October 1972

13 October 1972

Index Terms:

Political asylum -- Deportation order following recommendation of magistrates' court on conviction of offence -- Whether claim for political aslum can be an issue on an appeal against directions for removal to named country -- Representations on political asylum considered by Secretary of State before making order -- Secretary of State's decision on political asylum final -- Commonwealth Immigrants Act 1962, s 7, s 9(1)(2) -- Immigration Appeals Act 1969, s 5(3) -- Cmnd 4295, paras 35, 42, 46.

Deportation -- Country of destination -- Political asylum claimed on appeal against directions for removal to Cyprus on order implementing magistrate's court recommendation -- Representations claiming political asylum made to Secretary of State and considered before order signed -- Whether Immigration Appellate authority rightly refused to consider claim for political asylum on appeal against the directions for removal -- Commonwealth Immigrants Act 1962, s 9(1)(2) -- Immigration Appeals Act 1969, s 5(3) -- Cmnd 4295, paras 35, 42, 46.

Held:

On an appeal under s 5(3) of the Immigration Appeals Act 1969 n1 against directions given for the removal of a person from the United Kingdom pursuant to a deportation order made on the recommendation of a Court (under the provisions of the Commonwealth Immigrants Act 1962) the question before the immigration appellate authority was simply whether or not the person should be removed to the territory named in the directions. That question depended (under para 46 of Cmnc 4295) n2 very much on whether the person could show that there was any other country which would receive him. The consideration of any claim to political asylum made by the person was (under para 42 of Cmnd 4295) n3 a matter for the Secretary of State on representations being made to him when he was determining whether to make a deportation order, and his decision on the matter was final. At the subsequent stage of appeal to an adjudicator the matter of political asylum was out of the case. n1 Section 5(3) of the Immigration Appeals Act 1969 is set out on p 34, post. n2 Paragraph 46 of Cmnd 4295 is set out on p 35, post. n3 Paragraph 42 of Cmnd 4295 is set out on p 34, post. The Court of Appeal so held when affirming severally the decisions of the Queen's Bench Divisional Court, of the Immigration Appeal Tribunal n4 and of an Immigration Appeal Adjudicator, and dismissing the appeal of a Cypriot Citizen for whose removal to Cyprus the Secretary of State had given directions following upon a deportation order made by him on the recommendation of a magistrates' court under the provisions of the Commonwealth Immigrants Act

1962.

n4 Reported at p 19, ante.

Introduction:

The facts appear in the judgment of LORD DENNING MR reported below.

Counsel:

Eugene Cotran for the appellant. Gordon Slynn for the respondents. PANEL: Lord Denning, MR, Phillimore, Stephenson, LLJ. Judgment By-1: LORD DENNING, MR

Judgment One:

LORD DENNING, MR: Mr. Djengiz Mehmet Ali is a citizen of Cyprus. During the troubles in 1966 and 1967 he was about 19 years of age. He was a guerilla in the mountains with the Turkish Cypriots fighting against the Greek Cypriots. He deserted from that force and came to England. He arrived on 27 February 1967. He was given permission to stay until 31 December 1969. He did not have permission to stay longer. Yet he did so. He remained here without permission. In consequence he was brought up before the Magistrates' Court at Greenwich on 14 January of this year, 1972. He was convicted, fined @ 20, and recommended for deportation under s 7 of the Commonwealth Immigrants Act 1962. Mr Ali did not appeal from that recommendation. So the Home Secretary had to decide whether a deportation order should be made or not under s 9 of the 1962 Act. Before he came to his decision, Mrs Dines, who acts on behalf of people such as Mr Ali, wrote to the Home Secretary on 18 January 1972. She pointed out the difficulties of Mr Ali if he were returned to Cyprus. She said: "Should he return to Cyprus he will certainly be called to account for his desertion" -- I suppose by the Turks -- "It is also possible that the Government, who have details of illegal guerillas, would also be keen to arrest him... He has good reason to fear that should he be forced to return to Cyprus he would be arrested by one of either the Greek or Turkish authorities -- whoever got hold of him first." On 21 March 1972 the Home Secretary made a deportation order against Mr Ali. He said he had taken account of Mrs Dines' representations, but found no reason for not implementing the Courts' recommendation. On 25 April 1972 the Home Secretary gave direction for his removal. He directed that Mr Ali should be removed as soon as possible by air to Cyprus. Accordingly, Mr Ali was taken into custody, and he has been in custody ever since in Pentonville. Mr Ali appealed against the directions of the Home Secretary. He is given a right of appeal by s 5(3) of the Immigration Appeals Act of 1969. It says: --

"Where directions are given for the removal of a person from the United Kingdom, he may appeal to an adjudicator against the giving of the directions on the ground that he ought not to be removed to the country or territory to which he would be removed if the directions were carried out."

So Mr Ali appealed to an adjudicator on the ground that he ought not to be removed to Cyprus. The matter came before an adjudicator; from the adjudicator it went to the Tribunal. Each of them dismissed his appeal. I need not go into all the detailed arguments which were before them, but I will state simply the point that was taken before us. Mr Cotran has put it very clearly and succinctly. He put forward a claim to political asylum which he says is recognised by the Immigration Rules, which have statutory authority, Cmnd 4295. Rule 42 says: "A Commonwealth citizen will not be deported if this would mean his going to a country to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular group or political opinion." n5 n5 The criterion for the grant of asylum is in accordance with Article 1 of the Convention Relating to the Status of Refugees (Cmnd 9171). Mr Cotran argued that Mr Ali ought not to be removed to Cyprus because he had a well-founded fear of being persecuted because of his "membership of a particular group". But Mr Slynn on behalf of the Home Secretary, draws attention to another rule, no 46. It is so important that I will read it in full:

"46. Under paragraph 1 of Schedule 2 to the 1962 Act a Commonwealth citizen against whom a deportation order has been made may be removed from the United Kingdom to a country of which he is a citizen, or a country or territory to which there is reason to believe that he will be admitted. The power conferred by this paragraph should normally be exercised so as to secure the return of a Commonwealth citizen to the country of which he is a citizen, or if he is a citizen of the United Kingdom and Colonies, to the territory to which he belongs". (And then these are the important words) "Another country or territory may be specified if the Commonwealth citizen can show that it will receive him, but in considering any departure from the normal arrangements regard should be had to the public interest generally, and to any additional expense that may fall on public funds. The Commonwealth citzen has a right of appeal on the question of the country or territory to which he is to be removed (see paragraph 35 above n6) and will be notified of this right."

n6 Paragraph 35 of Cmnd 4295 is set out in footnote 8, post. It seems to me that para 46 is a reasonable rule. It is within the powers given by the statute. It says that another country may be specified if the Commonwealth citizen can show that it will receive him. It is very proper to applytht rule here. Although s 5(3) of the 1969 Act gives Mr Ali an appeal on the ground that he ought not be removed to Cyprus, nevertheless it is no good allowing such an appeal if there is no other country to which he can go. If he is not to go to Cyprus -- and there is no other country willing to receive him -- the only result would be that he would stay in England. So the deportation order would be circumvented and made of no effect. That cannot be right. So if Mr Ali wishes to succeed in his appeal, he should show, not only that he is in danger of being persecuted if he goes to Cyprus, but also he should show that there is another country or territory which will receive him. Mr Ali failed to do this. He failed to show that there was any other country ready to receive him. I believe that enquiries were made through friends as to whether Seden or any other country would take him; but none was found. There is no other country ready to receive him. The appeal has been rightly disallowed. I may add that in all these cases the proper person to consider a claim to political asylum is the Home Secretary. It is not a matter for the Court which recommends deportation. If a man has a well-founded fear of being persected if he is sent back to his own country, he should make representations to the Minister: and the Minister will take that fear into account in determining whether to make a deportation order. In this case, having taken that fear into account, the Home Secretary decided to make a deportation order. His decision is final on the point of political asylum. At the next stage, when there is an appeal to the adjudicator, the point of political asylum is out of the case. It has already been decided n7. The question then simply is whether or no the man should be removed to the named territory. That depends very much on whether or not he can show there is any other country which will receive him. If the adjudicator had evidence showing there is such other country, he would, in a proper case, give effect to his appeal. But in this case no other country being shown ready to receive him, I think the tribunal came to the right result. There is no ground whatever for interfering with its decision. The decision of the Divisional Court was right. I would dismiss the appeal. n7 Paragraph 42 of Cmnd 4295 has been replaced in H.C. 80 by para 50. This paragraph refers unambiguously to the making of the deportation order: -- "A deportation order will not be made against a person if the only country to which he can be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular group of political opinion." Judgment By-2: PHILLIMORE, LJ

Judgment Two:

PHILLIMORE, LJ: I also agree with the decision of the Divisional Court and with the judgment just delivered by my Lord. I cannot usefully add to the reasons which he has given and I would likewise dismiss the appeal. Judgment By-3: STEPHENSON, LJ

Judgment Three:

STEPHENSON, LJ: I entirely agree. I would add that both r 35 of the Immigration Rules (Cmnd 4295) n8 and s 17 of the 1971 Act n9 correctly recognise that, at the stage of an appeal against directions for the removal of an immigrant to the country of which he is a citizen, the ground stated in sub-s(3) of s 5 of the Immigration Appeals Act 1969 n10 leaves only the ground that there is reason to believe that the immigrant will be admitted to another country. Rule 42 of Cmnd 4295 deals on its plain terms with the stage before the deportation order is made. n11 n8 Rule 35 of Cmnd 4295 reads: "In all cases where the Secretary of State has decided to make a deportation order, whether under the 1962 Act or the 1969 Act, the Commonwealth citizen has a right of appeal under s 5 of the 1969 Act on the question to what country or territory he is to be removed." n9 Section 17 of the Immigration Act 1971, by S.I. 1972 No. 1514 (C.36) d. 7.10.72, comes into force on 1 January 1973, and on and after 25 January 1973 the immigration rules applicable to Commonwealth citizens on deportations under the 1971 Act are contained in H.C. 80. n10 Section 5(3) is set out on p 34, ante. n11 Rule 42 is set out on p 34, ante. See also footnote 7, ante. Further I would add that s 8 of the 1969 Act clearly shows that the Immigration Rules applicable to the case at the stage of directions must be taken into account by the adjudicator, and, for the reasons which my Lord has given, I am quite satisfied that r 46 is not ultra vires, but, on the contrary, sensibly recognises the position as it is when the appeal from the directions comes before the adjudicator. n12 n12 Rule 46 is set out on p 35, ante.

DISPOSITION:

Appeal dismissed. Leave to appeal to the House of Lords refused.

SOLICITORS:

Clinton Davis, Simons & Co (for the appellant); Treasury Solicitor.