Regina v. Immigration Appeal Tribunal, Ex parte Kandemir
- Author: Court of Appeal (Civil Division)
- Document source:
-
Date:
16 October 1986
REGINA v IMMIGRATION APPEAL TRIBUNAL, Ex parte KANDEMIR
COURT OF APPEAL (CIVIL DIVISION)
[1986] 1 WLR 1448, [1986] Imm AR 510
Hearing Date: 2, 3, 16 October 1986
16 October 1986
Index Terms:
Immigration -- Appeal -- Evidence -- Decision to deport -- Facts in existence at time of Secretary of State's decision but unknown to him -- Whether adjudicator or appeal tribunal to admit evidence of such facts -- Statement of Changes in Immigration Rules of (1982) (HC 66), para 158
Held:
In each of three separate cases the applicant entered the United Kingdom as a visitor with leave to stay for a limited period only. In each case the applicant stayed on after the limit had expired, and in due course the Home Secretary made a decision to deport him. Each applicant appealed to an adjudicator against the decision to deport, seeking to put forward additional facts on the appeal which, although in existence at the time of the Home Secretary's decision, had not been known to him. Those appeals were dismissed, and the applicants appealed to the Immigration Appeal Tribunal. the tribunal dismissed all three appeals, holding that on such an appeal it was not open to the applicant to adduce evidence of facts or circumstances which had not been known to the Home Secretary at the time of his decision, notwithstanding that the facts or circumstances were in existence at that time. Each applicant sought judicial review of the appeal tribunal's decision. Mann J, in the first two cases, and Kennedy J, in the third case, refused the applications. In the first case the appeal tribunal found that, even if the facts sought to be put in evidence by the applicant had been considered, there was no ground for interfering with the decision of the Home Secretary. On appeal by the applicants in all three cases:- Held, dismissing the appeal in the first case and allowing the appeals in the other cases, that on appeal to an adjudicator under section 19(1)(a)(ii) of the Immigration Act 1971 against a decision to make a deportation order, where the question in issue was the exercise of a discretion by the Secretary of State or an officer, evidence of facts which existed at the time of the exercise of the discretion was admissible even though the facts were not known to the decision maker at the time he made the decision; and that, accordingly, the latter two cases would be remitted to the appeal tribunals to consider the evidence. Per Dillon and Croom-Johnson LJJ. A person against whom the Secretary of State has decided to make a deportation order without there having been any recommendation by a criminal court may say on appeal, without suggesting an alternative destination, that it is not appropriate to make any deportation order at all because he is entitled to political asylum as a refugee. Decision of Mann J affirmed. Decisions of Mann and Kennedy JJ reversed.Cases referred to in the Judgment:
Reg v Immigration Tribunal, Ex parte Kotecha [1983] 1 WLR 487; [1983] 2 All ER 289, CA. Reg v Immigration Appeal Tribunal, Ex parte Muruganandarajah [1983] Imm AR 141; (unreported), 16 July 1984; Court of Appeal (Civil Division) Transcript No 300 of 1984, CA. Reg v Immigration Appeal Tribunal, Ex parte Osei (unreported), 23 October 1985; Court of Appeal (Civil Division) Transcript No 584 of 1985, CA. Reg v Immigration Appeal Tribunal, Ex parte Weerasuriya [1983] 1 All ER 195. Reg v Secretary of State for the Home Department, Ex parte Musisi, The Times, 8 June 1985; Court of Appeal (Civil Division) Transcript No 217 of 1985, CA.Cases cited in the Judgment:
Reg v Immigration Appeal Tribunal, Ex parte Baktaur Singh [1986] 1 WLR 910; [1986] 2 All ER 721, HL(E) Reg v Immigration Appeal Tribunal, Ex parte Enwia [1983] Imm AR 40, CA. Reg v Immigration Appeal Tribunal, Ex parte Rahman (unreported), 18 July 1985; Court of Appeal (Civil Division) Transcript No 394 of 1985, CA. Reg v Secretary of State for the Home Department, Ex parte Husbadak [1982] Imm AR 8 Reg v Secretary of State for the Home Department, Ex parte Zaman [1982] Imm AR 61Introduction:
APPEAL from Mann J. The applicant, Ekrem Kandemir, a Turkish subject, entered the United Kingdom in 1978 as a visitor. He overstayed without authorisation and in October 1983 he was given notice of a decision by the Secretary of State to deport him. The notice named Turkey as the country to which it was proposed that he be removed. He appealed to an adjudicator on the grounds that he wished to be considered for political asylum, that he had effectively taken up full-time residence in the United Kingdom and that, in the circumstances, it was not in the interests of justice to make a deportation order. He also objected to Turkey as a destination, but did not suggest an alternative. The applicant appealed to an adjudicator, who dismissed the appeal. The applicant's appeal to the Immigration Appeal Tribunal was also dismissed. The tribunal held that it was open to the tribunal to consider on appeal only circumstances known to the Secretary of State at the date of his decision to deport. On 6 March 1986, on an application for judicial review by way of certiorari to quash the appeal tribunal's decision Mann J upheld the decision, and refused the relief sought. The applicant appealed on the grounds that (1) the judge erred in finding that section 19(1)(a)(i) of the Immigration Act 1971 did not confer a jurisdiction on the Immigration Appeal Tribunal to determine whether a person was in fact a refugee at the time of the Secretary of State's decision to deport, whether the Secretary of State was aware of the claim to such status or not; (2) deportation and proposed removal to a particular country were not administrative processes completed by the time an appeal reached hearing stage, and the judge was wrong to hold that the function of the Immigration Appeal Tribunal in such cases was purely appellate; and (3) the judge erred in his construction of section 17(3) of the Act of 1971. The facts are stated in the judgment of Dillon LJ.Counsel:
Alper Riza for the applicant; John Laws for the appeal tribunal.Judgment-READ:
Cur adv vult. 16 October. The following judgments were handed down. PANEL: Sir John Donaldson MR, Dillon and Croom-Johnson LJJJudgment One:
DILLON LJ: The applicant, Ekrem Kandemir, is a Turkish subject. He entered the United Kingdom on 29 December 1978 as a visitor with leave to enter for six months only. He overstayed without authorisation, and nothing more was heard of him by the immigration authorities until August 1983. He was then found working in a restaurant in Glasgow and was interviewed by immigration officers on 13 August 1983. He had apparently been working in various restaurants in the United Kingdom since about one month after his arrival here. After the interview, the Secretary of State decided, on or just before 7 October 1983, to deport him. The notice of the decision to deport the applicant named Turkey as the country to which it was proposed that he should be removed. On 17 October 1983 the applicant gave notice of appeal to an adjudicator against the decision to deport him. In the notice he gave as his grounds of appeal (1) that he wished to be considered for political asylum, (2) that he had effectively taken up full-time residence in the United Kingdom and had no desire to return to Turkey, and (3) that in all the circumstances it was not in the interests of justice to make a deportation order. He also stated in the notice that he objected to being removed to Turkey, but he did not suggest any alternative destination if he was to be deported at all. The basis of his claim to be considered for political asylum is that he says that he is of Kurdish extraction and that Kurds are subject to persecution in Turkey. No hint of this claim for political asylum or of the facts on which it is based had emerged in the course of the interviews of 13 August 1983 and consequently those facts were not known to the Secretary of State when he made his decision to deport the applicant. After the applicant had made his claim for asylum in his notice of appeal he was again interviewed by an immigration officer in relation to this claim. A lot more information was obtained, which is set out in the explanatory statement from the Home Office which, under the Immigration Appeals (Procedure) Rules 1972, was put before the adjudicator. The conclusion of the Secretary of State, after considering this information, was that he could find no cause to alter his decision to make a deportation order against the applicant and no ground for departing from his decision to direct that he be removed to Turkey. The applicant has no separate right of appeal against these conclusions of the Secretary of State on review of his case; his only right of appeal is a right of appeal under section 15(1) of the Immigration Act 1971 against the original decision of the Secretary of State to make the deportation order against him, with which can be combined under section 17(3) of the Act an objection to the country specified in the notice of the decision to make the deportation order as the country to which he is to be removed, and a claim that he ought to be removed (if at all) to a different country specified by himself. The applicant's appeal against the Secretary of State's original decision of 7 October 1983 to make a deportation order came before an adjudicator in March 1984 and was dismissed by the adjudicator. The adjudicator heard full evidence from the applicant in support of his claim for asylum and in relation to his fears of persecution in Turkey. The adjudicator rejected the claim to asylum on the facts; he stated that he could not regard the applicant as an impressive or credible witness, he rejected some of the applicant's alleged fears as absurd, and he concluded that he was not satisfied that the applicant's declared fears of persecution, were he to be removed to Turkey, were either genuine or well-founded. Against that decision of the adjudicator the applicant, having obtained leave, appealed to the Immigration Appeal Tribunal. His appeal was dismissed on 23 November 1984. The appeal tribunal held as a matter of law that it was open to the adjudicator and to the tribunal, on appeals from the decision of the Secretary of State notified on 7 October 1983 to make a deportation order against the applicant, to consider only circumstances known to the Secretary of State at that date, and consequently the applicant could not rely on evidence relating to the plea for asylum made for the first time on 17 October 1983. The appeal tribunal further held, and this is unchallenged, that on the facts of the case other than those relating to the claim for asylum there was no basis for interfering with the Secretary of State's decision to make a deportation order against the applicant. Having obtained leave to move, the applicant applied to a Divisional Court for judicial review of the decision of the appeal tribunal. That application came before Mann J and was dismissed by him on 6 March 1986. Mann J upheld the view of the law taken by the appeal tribunal, and in so doing he followed his own decision in Hassanin's case and the decision of Kennedy J in Farooq's case, both on the same point. The applicant now appeals against the decision of Mann J and the appeal has been heard together with the appeals in the cases just mentioned of Hassanin and Farooq. In the judgments in the case of Hassanin, which this court has just handed down, we have held that that view of the law was wrong. It follows that the appeal tribunal should have considered the evidence relating to the applicant's plea for asylum in so far as that evidence consisted of facts which existed at the time of the Secretary of State's decision to make the deportation order. I would therefore allow this appeal, quash the decision of the appeal tribunal, and remit this case to the appeal tribunal. The credibility of any evidence tendered will, of course, be a matter for the tribunal. The arguments in the case of Hassanin turned entirely on section 19(1)(a)(ii) of the Act of 1971, which provides that an adjudicator to whom an appeal is brought under the relevant sections of the Act is to allow the appeal if, where the decision or action against which the appeal is brought involved the exercise of a discretion by the Secretary of State or an officer, the adjudicator considers that the discretion should have been exercised differently. The question for decision was whether on that wording, and as under the relevant Immigration Rules (rule 158 of HC 66 of 1982 in that case and of HC 169 of 1983 in the present case) the Secretary of State, at any rate, in exercising his discretion to decide to deport is only required to take account of the circumstances known to him, the adjudicator was precluded from taking into account facts which, though they existed at the time of the Secretary of State's decision, were for whatever reason not then known to him. In the present case Mr Riza for the applicant has put forward an alternative argument for the applicant based on section 19(1)(a)(i). That subsection provides that an appeal is to be allowed if the adjudicator considers "that the decision . . . against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case." Mr Riza submits, quite apart from the point above-mentioned under subsection (1)(a)(ii) as to the exercise of discretion, that if the applicant was in truth at the time of the Secretary of State's decision a refugee within the meaning of the Convention Relating to the Status of Refugees 1951 (Cmd 9171) and the Protocol of 1967 (Cmnd 3906), even though the Secretary of State did not know it, then the decision to make a deportation order against the applicant was contrary to law and contrary to the immigration rules. Mr Riza refers to paragraph 153 of HC 169 of 1983, which provides that where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol and nothing in the rules is to be construed as requiring action contrary to the United Kingdom's obligations under those instruments, and also to article 165 which provides that, in accordance with the provisions of the Convention and Protocol, 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 persecution. Mr Riza refers also to article 33 of the Protocol, which provides that no contracting state shall expel or return a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, etc. Since I would allow this appeal on the ground indicated above, it is not necessary for me to express any view on this alternative argument, and I prefer not to, since the argument may trench on matters which are about to be considered by the House of Lords in the appeal in Reg v Secretary of State for the Home Department, Ex parte Musisi, The Times, 8 June 1985; Court of Appeal (Civil Division) Transcript No 217 of 1985, which is fixed for hearing in November. I would, however, in the interests of clarity on any further hearing of the applicant's case comment on a further point canvassed in argument. As I have already stated, the applicant in his notice of appeal against the decision to make a deportation order against him stated that he objected to being removed to Turkey, but did not suggest any alternative destination if he was to be deported at all. There was a certain amount of somewhat tangled argument as to how far a person who objects to being deported to a particular country is bound to specify an alternative destination, and Mr Riza sought to derive comfort for his submissions from section 17(3) of the Act. In my judgment two points are in danger of getting confused. I do not think that section 17(3) bears the construction which Mr Riza seeks to put on it, but equally I do not think that it impedes the point which he is really seeking to make. Section 17(1) and (3) are alike concerned with the situation where a person threatened with deportation wants to say that if he is to be deported it should be to a country other than the country to which the Secretary of State proposed to remove him. In such a case it is for the prospective deportee to suggest, or specify, an alternative country to which, if he is deported, he may be sent. If he does not suggest an alternative, then, if he is deported, he will be sent to the country proposed by the Secretary of State. Section 17(3) has, therefore, no application to the present case as the appellant has never suggested or had in mind any country other than Turkey as his destination if deported. But that does not prevent a person in the position of the applicant, against whom the Secretary of State has decided to make a deportation order without there having been any recommendation by a criminal court, saying, on appeal against that decision (if he gets appropriate evidence properly before the appellate authority), without suggesting any alternative destination, that it is not appropriate to make any deportation order at all against him because he is a person who is entitled to political asylum as a refugee under the Convention and Protocol; in support of this contention he could point to the consequences in the way of persecution of which he has a well-founded fear if he were to be returned to the country to which the Secretary of State proposes to deport him. This was pointed out by Woolf J in Reg v Immigration Appeal Tribunal, Ex parte Muruganandarajah [1981] Imm AR 141, 145, and I entirely agree with him. It is also, as I read it, implicit in the judgment of Sir John Donaldson MR, on the appeal in Muruganandarajah's case (unreported), 16 July 1984; Court of Appeal (Civil Division) Transcript No 300 of 1984, which, somewhat surprisingly, appears never to have been reported.Judgment Two:
CROOM-JOHNSON LJ: I agree with the judgment of Dillon LJ.Judgment Three:
SIR JOHN DONALDSON MR: I, too, agree with the orders proposed by Dillon LJ.DISPOSITION:
Appeal allowed with costs.SOLICITORS:
Winstanley-Burgess; Treasury Solicitor.Disclaimer: Crown Copyright
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