R v. Immigration Appeal Tribunal, Ex parte Farooq

REGINA v IMMIGRATION APPEAL TRIBUNAL, Ex parte FAROOQ

COURT OF APPEAL (CIVIL DIVISION)

[1986] 1 WLR 1448

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 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 Appeal 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 61.

Introduction:

APPEAL from Kennedy J. The Secretary of State for the Home Department decided to deport the applicant, Mohamed Farooq, on 28 September 1983. The applicant appealed against that decision to an adjudicator, claiming that he was a refugee entitled to political asylum. The adjudicator dismissed the appeal, holding that he had no jurisdiction to consider the claim to be entitled to political asylum because the Secretary of State had not been aware of it when he had made his decision on 28 September. The adjudicator's decision was upheld by the Immigration Appeal Tribunal. On 16 October 1985 Kennedy J refused the applicant's application for judicial review of the appeal tribunal's decision. The applicant appealed on the ground, inter alia, that the judge erred in upholding the finding of the Immigration Appeal Tribunal that paragraph 158 of the Statement of Changes in Immigration Rules of 1983 (HC 169) restricted its jurisdiction to considering only facts known to the Secretary of State at the date of the decision to deport. The facts are stated in the judgment of Dillon LJ.

Counsel:

Mya Mya Aye 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 LJJ

Judgment One:

DILLON LJ: The applicant, Mohamed Farooq, is a Burmese subject. As I explained in my judgment, just handed down on the parallel appeal of Hassanin, the applicant entered the United Kingdom on 9 January 1976 as a short term visitor with permission to stay for one month only. He said he wanted to stay for three weeks only and knew no-one in the United Kingdom. Within hours events happened which led the immigration officer to believe that the applicant had lied in order to secure his admission to the United Kingdom. However it was not then possible to find him and he was not found until he was denounced to the immigration authorities in July 1983. The Secretary of State then made the decision to deport the applicant, and signed a detention order without any previous interview for fear that if the applicant learned that he had been traced he would abscond from his then current address and place of work, and again be lost elsewhere in the United Kingdom. For my part I see no objection to the Secretary of State deciding to deport an overstayer, without any interview of the person concerned to discover his current circumstances, if the Secretary of State fears that that person will abscond if approached. The decision to deport the applicant and the detention order were made on 28 September 1983 and he was thereupon taken into custody. While still in custody (although he was subsequently released on bail) he gave, as he was entitled to, on 26 October 1983 notice of appeal to an adjudicator against the decision to make the deportation order. In the grounds of appeal it was stated that the applicant did not want to return to Burma as his life and liberty would be at risk. His claim is, in essence, that he is a refugee entitled to the protection of the Convention Relating to the Status of Refugees 1951 and the Protocol of 1967; he says that he is a Burmese Muslim of indian extraction, that before he left Burma in November 1984 he was politically active in the Burma Muslim Organisation and that consequently he has a well-founded fear of being persecuted on religious and political grounds if he is returned to Burma. I mention in passing that arrangements were made for the applicant to be interviewed by Home Office officials on 27 February 1984 in relation to his claim that his life or liberty would be at risk if he returned to Burma. According to the explanatory statement put before the adjudicator, the Secretary of State carefully reconsidered his decision to deport the applicant in the light of the grounds of appeal and the representations at that interview, but was not prepared to reverse his decision. When the applicant's appeal came before the adjudicator in October 1984, the adjudicator held, on an objection taken on behalf of the Secretary of State, that he, the adjudicator, had no jurisdiction to consider the applicant's claim to be a refugee entitled to asylum, because the Secretary of State was not, and could not have been, aware of this claim when on 28 September 1983 he made the decision to deport the applicant. The adjudicator followed, in so holding, a decision of the appeal tribunal in the parallel case of Kandemir. The appeal to the adjudicator was accordingly dismissed. The applicant applied for leave to appeal to the appeal tribunal, but that application was dismissed by the Vice-President of the appeal tribunal on 13 November 1984 on the ground that the case was indistinguishable from Kandemir, by virtue of which decision the appellate authorities were restricted in the circumstances they can consider in deportation proceedings to those known to the Secretary of State at the date of decision. The applicant accordingly applied to a Divisional Court for leave to move for judicial review of the decision of the appeal tribunal which had refused him leave to appeal, but his application was refused by Kennedy J on 16 October 1985. In his judgment Kennedy J followed the decision of Mann J in the parallel case of Hassanin; Mann J had taken the same view of the law as had been taken by the appeal tribunal in Kandemir and by the adjudicator in the present case, that in an appeal in deportation proceedings the appellate authorities can only consider the circumstances which were known to the Secretary of State at the time when he made his decision to deport the applicant. We have now held, in our judgments handed down in the case of Hassanin that that view of the law was wrong. It follows that the applicant was entitled to have his claim to be a refugee considered by the adjudicator on the basis of the facts as they existed at the time of the Secretary of State's decision to deport him, even though those facts were not known to the Secretary of State at that time. The appellate authorities had jurisdiction to consider on that basis the substance of his claim to be a refugee, but have never done so. This appeal must therefore be allowed, the decision of the appeal tribunal refusing leave to appeal against the decision of the adjudicator must be quashed, and the case must be remitted to the appeal tribunal.

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. The appeal is allowed, with costs.

DISPOSITION:

Appeal allowed with costs.

SOLICITORS:

Richard J Stevens, Walthamstow; Treasury Solicitor.