Yau Yak Wah and Another v. Home Office

Yau Yak Wah & Another v Home Office (TH/47449/79(2108))

Court of Appeal (Civil Division)

[1982] Imm AR 16

Hearing Date: 22 February 1982

22 February 1982

Index Terms:

Deportation - Applicants, son and wife of father/husband, served concurrently with notice of intention to deport him - Whether cases of applicants should have been looked at independently from his - Whether decision of Secretary of State was in accord with any immigration rule - Whether open to an adjudicator to remedy defiencies in Secretary of State's decision - Immigration Act 1971, 22 3(5)(a), 3(5)(c), 19(1)(a)(i) - HC 82 paras 40, 45, 49, 52 and 54.

Adjudicator - Functions of - Whether open to him to remedy deficiencies in Secretary of State's decision - Immigration Act 1971, S 19(1)(a)(i).

Held:

The applicants, son and mother born in Hong Kong and China respectively, were granted entry clearance in 1973 to join their father/husband in the United Kingdom. On 30 May 1979 notice of intention to depart was served on the father/husband, and notice of this decision was also given the two applicants. Appeals by all three were dismissed by an adjudicator . The Immigration Appeal Tribunal refused leave to appeal but Forbes J issued an order of mandamus directing the Tribunal to hear the appeal of the two applicants; the father/husband had meanwhile been served with a deportation order, and had returned to Hong Kong. The Immigration Appeal Tribunal dismissed the applicants' appeal and on 19 November 1981 Forbes J dismissed an application for judicial review of that decision. Held: (i) The Secretary of State did not give separate consideration to the cases of each of the three, i.e. husband, wife and son. (ii) The Secretary of State never exercised his discretion in relation to the two applicants and it was not open to the adjudicator or the Immigration Appeal Tribunal to substitute his or its discretion for that of the Secretary of State.

Counsel:

D Barnard (for Lord Hooson QC and E Fitzgerald) for the Appellants; A Mallelieu (for C Symons) for the Respondents. PANEL: Waller, Kerr LJJ and Sir George Baker

Judgment One:

WALLER LJ: This is an application for leave to appeal and if granted an appeal against a decision of Mr Justice Forbes refusing to make an order of Certiorari to bring up and quash the determination of an Immigration Appeal Tribunal dated 28th August, 1981. We have treated this as the hearing of the appeal. The second named Appellant was born in China in 1927 and the first named Appellant, her son, was born in Hong Kong on 5th June, 1960. Mr Fook Yau, the husband of the second named Appellant and father of the first named Appellant, was given leave to enter the United Kingdom in 1971 and went first to the Isle of Man but came to the mainland in 1973. The two Appellants were granted entry certificates to join him in 1973 and their leave to remain was made concurrent with the leave granted to Mr Yau. There was also a daughter, born on 1st May, 1965, who remained in Hong Kong but joined the family in England in 1974. Mr Yau's leave was extended from time to time until 30th November, 1975. His leave to work was as a waiter but he made a number of applications to the Department of Employment to work as a cook all of which were refused. Nevertheless Mr Yau took employment as a cook and remained in such employment until 1978 in breach of the condition imposed upon him. In September 1978 the Secretary of State permitted him to make a fresh application for leave to remain in the United Kingdom on the basis of the Take Away restaurant which he had established with his son at Wisbech. This was rejected and in due course, on 30th May, 1979, notice was served of the Secretary of State's decision to deport Mr Yau and notice of this decision to deport was also given to the two Appellants. On 7th June, 1979, an appeal against that decision was lodged by Mr Yau and the Appellants, and that appeal was heard by an Adjudicator on 16th August, 1979. The Immigration Appeal Tribunal refused leave to appeal but leave to appeal was granted by the Divisional Court and applications for judicial review were consolidated and heard by Mr Justice Forbes on 13th February, 1981. Meanwhile a Deportation Order had been made against Mr Yau and he had returned to Hong Hong in September, 1980. Mr Justice Forbes issued an order of Mandamus to the Immigration Appeal Tribunal directing them to hear and determine the appeal, which was heard on 22nd June, 1981. The main argument, both before the Adjudicator and the Immigration Appeal Tribunal, was that no independent consideration was given to the Two Appellants because at all stages the two Appellants were being looked at as part of the family of Mr Yau. Although no questions were asked of either Appellant, both of whom were present, the Immigration Appeal Tribunal gave fuller consideration to the cause of the Appellants but dismissed the appeal. Application was made to the Divisional Court for judicial review of that dismissal. This was heard by Mr Justice Forbes on 19th November, 1981, and he refused to make an order for judicial review. The basic facts are that the first Appellant was aged 13 when he came to this country and was nearly 19 when the Deportation Order was made and so had ceased to be a member of Mr Yau's family nearly a year before. Further, the second Appellant is in process of divorcing her husband Mr Yau. The daughter of the second Appellant has been in England since the age of 9 and was 14 when the Deportation Order was made against her mother. There are a number of other matters though relevant to a consideration of the cases of the Appellants it is unnecessary to set out for the purposes of this appeal. The main submission made on behalf of the Appellants is that the Secretary of State did not consider the cases of the Appellants separately from the case of Mr Yau, the father, and by reason of his failure to do so the appeal should have been allowed. The Deportation Order was made under Section 3(5) of the Immigration Act, 1971. Section 3(5) reads: "(5) A person who is not patrial shall be liable to deporation 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; or (b) if the Secretary of State deems his deportation to be conducive to the public good; or (c) if another person to whose family he belongs is or has been ordered to be deported." The duties of the Adjudicator are set out in Section 19(1) which reads: "19. - (1) Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act - (a) shall allow the appeal if he considers - (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal". The practice and procedure to be followed in connection with appeals is set out in the Immigration Rules (H.C.82). Rule 40 sets out the ambit of the Secretary of State's power to deport as follows: "Ambit of the power to deport. 40. Under sections 3 (5)-(6) and 5 (1)-(4) of the Immigration Act 1971 the Secretary of State may, if he thinks fit, make a deportation order requiring a person who is not patrial to leave and to remain thereafter out of the United Kingdom: (i) if the person has failed to comply with a condition attached to his leave to enter or remains beyond the authorised time; (ii) if the Secretary of State deems the person's deportation to be conducive to the public good; (iii) if the person is the wife or the child under 18 of a person ordered to be deported; (iv) if the person, after reaching the age of 17, is convicted of an offence for which he is punishable with imprisonment and the court recommends deportation." Rule 45 sets out the principles guiding decisions: "Consideration of the merits. 45. In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects." Rule 49 deals with deportation under Section 3(5)(a): "49. Deportation will normally be the proper course where the person has persistently contravened or failed to comply with a condition or has remained without authorisation. (So also where he has been recommended for deporation on conviction of entering the United Kingdom unlawfully.) But full account is to be taken of all the relevant circumstances before a decision is reached." There is also the power to deport under Section 3(5)(c) and Rules 52 and 54 are relevant when making such a decision. "52. In considering whether to require a wife and children to leave with the head of the family the Secretary of State will take account of all relevant factors, including - length of residence in the United Kingdom: any ties which the wife or children have with the United Kingdom otherwise than as dependants of the principal deportee: the ability of the wife to maintain herself and the children in the United Kingdom or to be maintained by relatives or friends without charge to public funds not merely for a short period but for the foreseeable future any compassionate or other special circumstances: any representations received from or on behalf of the wife and children." "54. Children cease to be members of the family, as defined in the Act, at 18, and their deportation will not normally be contemplated if they have spent some years in the United Kingdom and are near that age. Nor will deportation normally be appropriate if the child left the family home on taking employment and has established himself on an independent basis, or if he married before deportation came into prospect. In the case of children of school age it will be right to take into account, on the one hand, the disruptive effect of removal on their education and, on the other, whether plans for their care and maintenance in this country if one or both parents were deported are realistic and likely to be effective.". The original Deportation Order made under Section 3(5) did not specify whether it was made under Section 3(5)(a) or 3(5)(c) . If the decision was under 3(5)(a) then Rules 49 and 45 would both apply. Full account of all the relevant circumstance relating to that person would have to be taken and any compassionate circumstances balanced against the public interest. If, however, 3(5)(c) was being considered, the various matters outlined in Rule 52 would have to be taken into account. In relation to the first Appellant it may be that Rule 54 would also have to be considered. As a result of the appeals against the order, the Home Office made a statement setting out the history and the facts on which the Secretary of State based his decision. The first 14 paragraphs of that statement are historical and in no particular differentiate the Appellants from Mr Yau. He is described as the principle Appellant and the present Appellants, the son and wife, as the minor Appellants. Paragraph 15, which explains the Secretary of State's consideration, deals entirely with Mr Yau and the family as a group. The following quotations illustrate this: "He" (i.e. Mr Yau) "was informed on 30th May, 1977, that he should leave the country and take his dependants with him. He did not do so nor did he make any further attempts to contact the Home Office and regularise his own stay or that of the minor Appellants". The nearest indication to separate consideration is the sole sentence: "It appeared to the Secretary of State that none of the Appellants would voluntarily leave the United Kingdom". Finally the statement says the Deportation Order is made under Section 3(5)(a) but refers, among others, to Rule 52. The whole statement is concerned with Mr Yau and his family as one unit. Mr Justice Forbes, in giving judgment on the application for Mandamus, said: "It is fair to say that if you look through that statement from beginning to end there is no further clue to be obtained from it that each of these parties is being deported as an indpendent person save this" and then the Judge refers to the fact that separate orders were made. However he went on to express the conclusion that the Adjudicator had failed to consider the cases of these two Appellants separately and so granted Mandamus to the Appeal Tribunal to hear the appeal. On the second occasion before Mr Justice Forbes when considering Certiorari directed to certain specific matters which do not arise before us, the learned Judge refused to order Certiorari. On each occasion, perhaps because Counsel did not suggest there was an arguable point of law which would determine the appeal, Mr Justice Forbes only considered the matters arising on the appeal to the Adjudicator and Immigration Appeal Tribunal respectively. The Adjudicator's task and Immigration Appeals Tribunal's task is to decide whether or not the decision was "in accordance with any Immigration Rules applicable to the case". (See Section 19(1)(a)(i)). If the Adjudicator considers that the decision was not in accordance with the rules he must allow the appeal. It is not therefore open to the Adjudicator to remedy deficiencies in the Secretary of State's decision. It follows that the Secretary of State's decision must be in accordance with the Immigration Rules applicable to the case. Rule 40 would be the starting point and sub-rule (i) would have to be considered and perhaps sub-rule (iii). If it was Rule 40(i) then Rule 49 would require "full account to be taken of all the relevant circumstances before a decision is reached" and this would apply in relation to "the person" being considered. Then Rule 45 would require the merits to be considered and this again would require "the person" to be considered. Similarly if the starting point was Rule 40(iii). I have come to the conclusion that the Secretary of State did not give separate consideration to the case of each Appellant and did not weigh in relation to each Appellant the matters for and against deporting that Appellant. In my opinion the Secretary of State never exercised his discretion in relation to these two Appellants and in my judgment it is not open to the Adjudicator or the Immigration Appeal Tribunal to substitute its or their discretion for that of the Secretary of State. Accordingly I would allow this appeal and send the case back to the Immigration Appeal Tribunal with directions to allow the appeal against the Deportation Order. This will enable the Secretary of State, for the first time, to give separate consideration to the cases of each of the two Appellants. I have not considered in this Judgment the various compassionate matters which were urged before us, the probability that the second Appellant would be destitute, the fact that the first named Appellant has been in this country 8 years since the age of 13, and the fact that the daughter who has been in this country 7 years since the age of 9 is at present dependant on her mother. These are some of the matters entirely for the Secretary of State in considering the exercise of his discretion.

Judgment Two:

KERR LJ: I agree that this appeal should be allowed for the reasons given by Lord Justice Waller and there is little that I wish to add. As stated by Lord Justice Waller, and as was also rightly conceded by Mr Symons on behalf of the Respondent, in exercising his discretion whether or not to make a deportation order under Section 3(5) of the Immigration Act 1971 the Secretary of State must take account of the Immigration Rules. For the purposes of an appeal to an adjudicator under Section 19, the Secretary of State must prepare a written statement of the facts relating to his decision and of the reasons therefor: See Rule 8 of the Immigration Appeals (Procedure) Rules 1972 (S.I. 1972 No 1684). This statement (apart from any further evidence which may be adduced and admitted) then forms the basis for the determination by the Adjudicator, and of any further appeal to the Appeal Tribunal, as to whether the Secretary of State's decision was in accordance with the law or with any applicable immigration rules; if not, the appeal must be allowed: See Section 19(1)(a)(i) of the Act. Further, if the decision involved the exercise of a discretion, the appeal must also be allowed if, in the view of the Adjudicator or the Appeal Tribunal, the discretion should have been exercised differently: See Section 19(1)(a)(ii). When one then turns to Section 3(5) of the Act, and in particular to the question whether in this case the Secretary of State would have been entitled to exercise his power to order deportation solely under paragraph (c) , which in effect treats the members of a family as one unit for this purpose, it was also rightly conceded by Mr Symons that this would in any event not have been permissible in the case of the son, Mr Yau Yuk Wah, who was nearly 19. He submitted that the Secretary of State had considered the cases of both individual Applicants on their merits under paragraph (a), and he referred in particular to the reference to this provision in the body of the statement. However, for the reasons already explained by Lord Justice Waller, I cannot accept that the statement bears this out in any way. The references to the Rules not only omit Rule 45 but include Rule 52. More important, however, the statement as a whole bears every appearance of having been directed solely to paragraph (c) , and it includes no reference to the material which was available, and which would clearly have been relevant, for the purposes of consideration under paragraph (a). It follows that the right course for the Adjudicator was that he should simply have allowed the appeal on the foregoing ground. However, it also appears that this ground was not put forward as a clear-cut point of law, either before the Adjudicator, or in the lengthy further proceedings for appeal and judicial review which followed. It was not until the matter reached this court that the point of law was presented on behalf of the Applicants in this way by Lord Hooson. Mr Symons then very properly conceded that if the point is a good one, as in my view it clearly is, it should not be held against the Applicants that it had not been taken with the same clarity below. I would only mention one further consideration. When one reads the lengthy subsequent decisions, by the Adjudicator, by Mr Justice Forbes on the application for judicial review ordering the Appeal Tribunal to hear the appeal, and finally the reasons of the Appeal Tribunal for dismissing the appeal, I think that one is struck by the pre-eminent importance of the original statement on behalf of the Secretary of State. In effect, all the proceedings thereafter concerned themselves solely with the question under Section 19(1)(a)(ii) whether the discretion should have been exercised differently, which places a relatively heavy burden on an Appellant even when there is much to be said, as in the present case. The proceedings were thereafter never able fully to escape from the fetter of the wrong approach which had in my view been adopted in this case from the outset, and which should have been dealt with under Section 19(1)(a)(i). Accordingly I would allow this appeal in the terms stated by Lord Justice Waller.

DISPOSITION:

Appeal allowed with costs. Matter to be remitted to the Industrial Appeal Tribunal.

SOLICITORS:

Collyer, Bristow, agents for Ollards, Wisbech; The Treasury Solicitor.