R v. Immigration Appeal Tribunal, Ex parte Bakhtaur Singh

R v Immigration Appeal Tribunal Ex parte Bakhtaur Singh

Court of Appeal (Civil Division)

[1984] Imm AR 217

Hearing Date: 11 December 1984

11 December 1984

Index Terms:

Practise and procedure -- Deportation -- Compassionate circumstances -- Public interest -- Whether compassionate circumstances to be considered were limited to those of a personal nature relating solely to impact of deportation upon applicant himself -- Whether impact of deportation upon community relations was a compassionate circumstance to be considered -- If not was it a relevant circumstance -- Immigration Act 1971 s 3(5)(a) -- HC 66 paras 154, 155, 156 and 158.

Held:

The applicant, a citizen of India described in his affidavit as a "priest/musician", arrived in September 1979 with a work permit as a member of an India folk music group. He was admitted in that capacity, and granted an extension until 30 November 1979. However successive applications for further stay, as a visitor and music teacher/priest respectively, were refused. Following ignoral of advice by the Home Office that he would be liable to deportation if he did not leave he was arrested and, after pleading guilty to the charge of overstaying, sentenced to two months imprisonment. On 1 February 1983 he was served with notice of the Home Secretary's intention to deport him. His consequential appeal was dismissed by an adjudicator and leave to appeal against that decision refused by the Immigration Appeal Tribunal. In the present proceedings he sought judicial review of both these decisions the judge holding that he was entitled to succeed. Held: (i) In the context of paragraph 154 "Public interest" meant that in favour of deportation, excluding any considerations of public interest which might be against deportation. (ii) "Compassionate circumstances" in paragraph 154 were those of a personal nature relating to the impact of the departure upon the applicant himself. (iii) In the context of paragraph 158 "Relevant circumstances" did not extend to matters unrelated to the personal circumstances of the applicant, his family and persons intimately connected with him.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal, ex parte Sohal [1981] Imm AR 20, DC. R v Immigration Appeal Tribunal, ex parte Arvind Chaturbhi Patel [14.2.1984] unreported, DC. R v Nazari [1980] 71 CR AR 87 3 All ER 88, [1980] 1 WLR 1366 CA. Mohamed Rustan Khan [23.7.1983] unreported, TH/101105/82 (2724).

Counsel:

John Laws for the appellant; Frances Webber for the respondent. PANEL: Stephenson, Fox and Purchas LJJ

Judgment One:

FOX LJ: This is an appeal from an order of Hodgson J that a decision of the Immigration Appeal Tribunal refusing leave to the applicant, Bakhtaur Singh, to appeal from a determination of an adjudicator be quashed. The applicant, who is described in the affidavit sworn on his behalf in support of the application for judicial review as "a priest/musician", arrived in the United Kingdom in 1979. He is a Sikh and an Indian citizen. He is about 34 years of age. He came to this country in September 1979 with a work permit for employment as a member of an Indian folk music group. He was given then, and by a later extension, permission to remain in that capacity, until 30 November 1979. Early in November 1979 he made application to stay for a further three months as a visitor; almost immediately afterwards he applied for a further six months' stay as a music teacher and priest. These applications were both rejected. Extension of time under the Immigration (Variation of Leave) Order expired in October 1980. On 8 December 1980 the Home Secretary wrote to Messrs Sargeant and Collins, the applicant's representatives, stating that the applicant should leave the United Kingdom as soon as possible. In February 1981 representations were made on the applicant's behalf by a Member of Parliament. The Home Secretary refused to alter his previous decision and stated that the applicant should leave the United Kingdom at once. On 16 March 1981 the applicant informed the Home Office that he would leave within the next four weeks. There being nothing to suggest that the applicant had in fact left, the Home Office wrote to him on 2 June 1981 informing him that he would be liable to deportation if he did not leave the United Kingdom immediately. In June 1982, the applicant was arrested and charged with overstaying. He pleaded guilty and was sentenced to two months' imprisonment; in addition a recommendation was made for his deportation. He appealed to the Crown Court; the recommendation was quashed. On 4 October 1982 the applicant was informed, through a Member of Parliament, that he should leave without delay. He did not do so. The Home Secretary therefore decided to deport him under s 3(5)(a) of the Immigration Act 1971. Notice of that decision was given to the applicant on 1 February 1983. He appealed to an adjudicator; and that appeal was dismissed. The applicant then sought leave to appeal to the Immigration Appeal Tribunal. The Tribunal refused leave. In the present proceedings the applicant seeks judicial review of these two decisions. The judge held that he was entitled to succeed. At this point, we should refer to the statutory and other provisions with which we are concerned. S 3(5) and (6) of the Immigration Act 1971 provide: "(5) A person who is not patrial shall be liable to deportation 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. (6) Without prejudice to the operation of subsection (5) above, a person who is not patrial shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so". S 19(1) of the same statute provides that an adjudicator on appeal to him: "(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 any immigration rules applicable to the case; or (ii) where the discretion 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". Rules have been laid before Parliament by the Home Secretary establishing the practice to be followed in such a case as the present. They are to be found in House of Commons Paper 66 of 1982. The material paragraphs are in Part XII "Deportation" (which begins at paragraph 148). Paragraph 154. "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 between one person and another though one case will rarely be identical with another in all material respects". Paragraph 155. "Most of the cases in which deportation may be the appropriate course fall into two main categories. There are, first, those cases which come to notice following a conviction for a criminal offence and in which it is fitting that, because of his conduct, a person should no longer be allowed to remain here; and, second, those cases in which the person is here, or is remaining here, in defiance of the immigration control". Paragraph 156. "In considering whether to give effect to a recommendation for deportation made by a court on conviction the Secretary of State will take into account every relevant factor known to him, including: age; length of residence in the United Kingdom; Strength of connections with the United Kingdom; personal history, including character, conduct and employment record; domestic circumstances; the nature of the offence of which the person was convicted; previous criminal record; compassionate circumstances; any representations received on the person's behalf. In certain circumstances, particularly in the case of young or first offenders, supervised departure, with a prohibition on re-entry, may be arranged as an alternative to the deportation recommended by the court provided that the person is willing to leave the country". Paragraph 158. "Deportation for breach of conditions of unauthorised stay. Deportation will normally be the proper course where the person has failed to comply with or has contravened a condition or has remained without authorisation. Full account is to be taken of all the relevant circumstances known to the Secretary of State, including those listed in paragraph 156, before a decision is reached. Where, however, a man has remained without authorisation who does not qualify for leave under paragraph 126 because the condition in (e) or (f) of that paragraph is not met, deportation will normally be the proper course irrespective of the reasons which led to the termination of the marriage or to one of the parties ceasing to intend to live with the other, and irrespective of the length of any period during which he has been resident in the United Kingdom as a husband or fiancé". Paragraph 171. "Application for the revocation of a deportation order will be carefully considered in the light of the grounds on which the order was made and of the case made in support of the application. The interests of the community, including the maintenance of an effective immigration control, are to be balanced against the interests of the applicant, including any circumstances of a compassionate nature. In the case of an applicant with a serious criminal record continued exclusion, for a long term of years, will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered either by a change of circumstances since the order was made or by fresh information coming to light which was not before the court that made the recommendation or the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order. Since so much depends on other relevant circumstances, it is not practicable to specify periods as appropriate in relation to particular grounds of deportation. All applications for revocation will be carefully considered when made but save in the most exceptional circumstances the Secretary of State will not revoke a deportation order which has been in force for less than three years". The adjudicator in dismissing the applicant's appeal took the view that the loss to the Sikh community of the religious and musical services which the applicant renders to that community was not proper to be taken into account by him and in particular do not constitute "compassionate circumstances of the case" within paragraph 154. In reaching that conclusion the adjudicator followed the decision of Forbes J in R v Immigration Appeal Tribunal Ex parte Sohal. In that case the applicant was a priest of the Sikh religion who overstayed. The Home Secretary decided to make a deportation order. A portion of the Sikh community were most anxious to retain the services of the applicant as a priest. It was contended first that to deprive that part of the Sikh community of the applicant's services would harm community relations. Forbes J held that this argument failed on the ground that it was really a "political" argument and was not justifiable by the courts. "Political" there was used in the sense as being a broad matter of public consequence which was essentially for the decision to the Home Secretary. The further argument was adduced that the loss which would be suffered by the Sikh community in consequence of the applicant's deportation constituted "compassionate circumstances" for the purpose of paragraph 38 of House of Commons Paper 80 (which is in the same terms so far as material as paragraph 154 of House of Commons Paper 66 of 1982). Forbes J held that when one is considering the word "compassion" as used in paragraph 38, one is looking at it from the aspect of the person likely to be deported, not of those likely to be affected by the deportation order other than himself. It was on this aspect of the case (that is to say, the loss which would be suffered by the Sikh community) that the applicant based his request for judicial review. The adjudicator, it was contended, had misdirected himself in following the decision of Forbes J in Sohal. It has not been suggested that there was any other misdirection. Hodgson J accepted the applicant's contention and quashed the decision of the Appeal Tribunal (which had held that no arguable point of law arose on the adjudicator's decision). The conclusions which Hodgson J reached were, in substance, as follows: (i) The "public interest" referred to in paragraph 154 is not restricted to the interest of the public in having the immigration laws enforced. So far as that section of the public which is of Sikh origin is concerned there is a public interest against deportation. (ii) "compassionate circumstances" within paragraph 38 are not limited to circumstances personal to the applicant and can include the effect on the Sikh community of his deportation. (iii) The adjudicator must take into account in considering "whether deportation is the right course on the merits", the public interest in a broad sense including, but not exclusively, the interest of the public in effective immigration control together with the compassionate circumstances of the case. We come then to the construction of the material paragraphs in the House of Commons paper. We accept that the document has to be operated, in part at any rate, by Immigration Officers and should be construed fairly broadly and not legalistically. But in approaching the House of Commons Paper it is necessary to bear in mind that the Secretary of State is exercising his discretion against the background of the provisions of s 3(5) of the Act of 1971. That identifies three circumstances when Parliament thought it appropriate in the public interest that a person should be liable to deportation. One of these is where he has overstayed. The statute does not refer to public interest save in paragraph (b) but we think that, having regard to the fact that what is involved in so serious a matter as deportation and to the nature of the three cases themselves which are specified in s 3(5) it is to be inferred that the public interest is necessarily involved. The dispute, in the present case, turns largely on the opening words of paragraph 154 namely, "In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case . . .". What is required by these words, in our view, is a consideration of conflicting interests. That follows, we think, from the word "balancing" and the word "against". It seems to us to be assumed that the compassionate circumstances are, in the balancing procedure, something necessarily in conflict with the element of public interest. Obviously that does not mean that in the end the compassionate circumstances may not outweigh the public interest, but the fact that a balancing is required at all indicates that there is a conflict of interest. The structure of the provision assumes adverse factors on each side of the scales. What then is meant by the "public interest" in paragraph 154? In our view it must be the public interest in favour of deportation in enforcement of the immigration laws. Paragraph 154 is dealing with cases where by the statute the person is liable to deportation and, thus far, one can properly assume that it is in the public interest that he should be so liable. But the situation, in fact, goes beyond that in a case such as the present in respect of which paragraph 158 provides that deportation will normally be the proper course. Basically, it seems to us, what Parliament has done is this. It has not thought it desirable that the Home Secretary should have a general power to deport at his discretion. But it has specified certain cases where it has thought it to be in the public interest that a person should be liable to deportation. But even in those cases the House of Commons Paper has indicated a further protection, namely a balancing of that public interest with the compassionate circumstances of the case. It was Miss Webber's contention that "the public interest" referred to in paragraph 154 is sufficiently wide to include the public interest of the Sikh community in having available to them in the United Kingdom the services of priest and musician who is as valued by them as is the applicant and that accordingly the adjudicator should have taken that into consideration. In our opinion paragraph 154 is concerned with a conflict. That conflict is between the public interest on one side and the compassionate circumstances on the other. The existence of the conflict is indicated by the word "against". We agree that one should avoid, in construing this document, an approach based on refined linguistic points. But one cannot disregard ordinary English usage. In our view the word "against" is a strong indication of a distinction between the public interest and the compassionate circumstances of the case. In the context of the document itself and the statute, we can only interpret the "public interest" referred to in paragraph 154 as the public interest in favour of deportation and as excluding any considerations of public interest which might be against deportation. The only circumstances which the opening words of paragraph 154 is contemplating as being capable of being against deportation are "the compassionate circumstances of the case". The next question is what within these confines is meant by "the compassionate circumstances of the case". It is contended on behalf of the applicant that such circumstances include the impact upon the Sikh community of his removal from the United Kingdom having regard to their attachment to him as a priest and musician. Community relations are, it is said, included within compassionate circumstances. In our opinion, the compassionate circumstances referred to in paragraph 154 are those of a personal nature relating to the impact of the deportation upon the applicant himself which arouse compassion. And compassion, we think, is the emotion of being moved by the suffering or distress of another and wishing to relieve it. But it seems to us that it is the personal situation of the applicant himself that one is concerned with. Thus, in paragraph 156, (dealing with recommendations for deportation by a court) the listed circumstances are, we think, all essentially personal to the applicant. We agree with the statement of Woolf J in R v Immigration Tribunal Ex parte Patel (14 February 1984) that: "When you look at those rules speaking for myself I would respectfully endorse the way the matter was set out in the judgment of Forbes J (in Sohal). It does seem to me that what one is concerned with is the effect of the decision on the person who is liable to be deported but in saying that I am certainly not, nor was Forbes J, saying it is not necessary to look at others who will be affected by the decision. Part of the compassionate circumstances of the person who is going to be deported is the consequences of his deportation on other persons such as his family and those closely connected with him". In our judgment the impact upon community relations as regards the Sikh community (which is what is relied upon by the applicant) cannot in the ordinary use of English be called a compassionate circumstance of the case. It may be of public importance but it is a political or public matter and not personal to the applicant. Nor, it seems to us, can it have been intended that the impact of a deportation upon community relations should be judged by the adjudicator. He will not normally have the knowledge with which to do it. Community relations are a matter of policy for the Secretary of State. He is perfectly entitled to take them into account in deciding against deportation. But that does not make them "compassionate circumstances" within paragraph 154 which in our view do not relate to the interest of persons other than the applicant, members of his family and persons with whom he is intimately associated. It is said that, if the impact on community relations is not a "compassionate circumstance" it is, at any rate, one of the "relevant circumstances" within paragraph 158. We do not accept that. If it were correct, it would make the reference to "relevant circumstances" so wide as to include matters of a wholly different character from those in paragraph 156. We do not think that "relevant circumstances" can be taken as extending to matters unrelated to the personal circumstances of the applicant and his family and persons intimately connected with him. To remove the ambit of the expression from a personal level to a public one is going too far. Reference was also made to paragraphs 148 -- 152 and 171. Paragraphs 148 -- 152 are merely descriptions of the legislative background. They give no guidance as to how the power to deport should be exercised. Paragraph 171 refers to "The interests of the community including the maintenance of effective immigration control" being "balanced against the interests of the applicant". This paragraph, however, is dealing with a different subject matter. It is dealing with a person who has been deported and wishes (generally after a lapse of not less than three years) to come back. It does not, therefore, involve the powers of the Home Secretary under s 3(5) and (6). Accordingly it is not dealing with a situation in which parliament has stated specific grounds upon which the Home Secretary can take action. Paragraph 154 contains no reference to the interest of the community and, having regard to the difference in the problems with which the two paragraphs are dealing, we do not regard the language of paragraph 171 as affording any reliable guide to the meaning of paragraph 154. Hodgson J referred to the case of Nazari, [1980] Volume 71 Criminal Appeal Reports, 87. This case it seems, has been regarded as throwing doubt upon Sohal (see Mohammed Rustan Khan, Immigration Appeal Tribunal, 23 June 1983). We do not think that Nazari does that. It was a criminal case and the Court of Appeal (Criminal Division) was indicating some guidelines which courts should keep in mind in considering whether to make orders recommending deportation. At p 95 Lawton LJ referred to: "the effect that an order recommending deportation will have on others who are not before the court and are innocent persons. This court and all other courts would have no wish to break up families or impose hardship on innocent people. The case of Mrs Fernandez illustrates this very clearly indeed. Mrs Fernandez is an excellent person, a good wife and mother . . . As we have already indicated, if her husband is deported, she will have a heartrending choice to make". All of that is quite in line with the meaning of "compassionate circumstances" as interpreted, rightly in our view, by Forbes J and Woolf J. But it is not dealing at all with the question whether "compassionate circumstances" includes impact upon community relations; or with the question of the meaning of the words "public interest" in paragraph 154. The result, in our view, is that Sohal, as interpreted by Woolf J in Patel, was rightly decided and that accordingly the adjudicator in the present case did not misdirect himself in law. There is, therefore, no ground for interfering with the decision of the Tribunal to refuse leave to appeal.

DISPOSITION:

Appeal allowed

SOLICITORS:

Messrs Laxmans; Treasury Solicitor.

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