Secretary of State for the Home Department v. Zalihe Huseyin

SECRETARY OF STATE FOR THE HOME DEPARTMENT v ZALIHE HUSEYIN

Court of Appeal (Civil Division)

[1988] Imm AR 129

Hearing Date: 30 October 1987

30 October 1987

Index Terms:

Deportation -- wife of a Commonwealth citizen settled in the United Kingdom on 1 January 1973 -- marriage contracted in November 1983 -- whether the Secretary of State had power to deport her -- whether her position was protected by s 1(5) of the 1971 Act. Commonwealth Immigrants Act 1962 (as amended) ss 2(1), 2(2), 6(1), 6(2), 7, 8: Immigration Act 1971 ss 1(5), 3(2), 3(6), 5(1), 5(4): HC 169 paras 124, 148, 149.

Held:

Appeal from Farquharson J The respondent was a Cypriot who was admitted to the United Kingdom as a visitor for a month. She overstayed. Of that offence she was convicted. The Court recommended she be deported. The Secretary of State acted on that recommendation. Meanwhile the respondent married a Commonwealth citizen settled in the United Kingdom on 1 January 1973. On application for judicial review which was granted by Farquharson J, it had been argued that as the wife of a Commonwealth citizen she could not be deported, having protected rights through s 1(5) of the 1971 Act, which rights arose under the provisions of the Commonwealth Immigrants Act 1962, (as amended). The learned judge had also considered the meaning of "admitted in a temporary capacity" in paragraph 124 of HC 169, holding that it referred to the status of an applicant at the date of the marriage, not solely at the date of admission. On appeal by the Secretary of State, it was argued that the protection embodied in s 1(5) of the 1971 Act only related to what was subsequently written into the rules. It did not relate to other provisions of the 1971 Act itself. Held: 1. The respondent was protected by the provisions of s 1(5) of the 1971 Act. As the wife of a Commonwealth citizen himself settled in the United Kingdom on 1 January 1973 she could not be deported. In that regard the quality of the marriage was irrelevant: a marriage of convenience would suffice. 2. The provisions of s 1(5) of the 1971 Act were not restricted to wives and children at that date (ie 1 January 1973) of Commonwealth citizens then settled in the United Kingdom. 3. The immunity from deportation derived from ss 2(2) and 6(2) of the Commonwealth Immigrants Act 1962 (as amended). Rules promulgated under the 1971 Act ought to have included specific provisions to continue that protection for persons in the position of the respondent. 4. The Court, dismissing the appeal on the basis of the provisions of s 1(5) of the 1971 Act, gave no guidance on the true interpretation of paragraph 124 of HC 169.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Zalihe Huseyin (unreported, QBD 15 April 1987). Immigration Appeal Tribunal v Haque, Rahman, Ruhul [1987] Imm AR 587.

Counsel:

P Havers for the appellant; D Pannick for the respondent PANEL: Sir John Donaldson MR, Neill, Ralph Gibson LJJ

Judgment One:

SIR JOHN DONALDSON MR: The applicant for judicial review is a Cypriot. In September 1981, when she was seventeen, she sought to enter this country as a visitor and was given leave to stay for one month. This was later extended to twelve months, but she overstayed, thereby committing a criminal offence to which she pleaded guilty in the Newham Magistrates' Court on 26 October 1983. She told the court that she would be leaving the country on 4 November 1983 and produced an airline ticket to prove it. The magistrates imposed a conditional discharge, but reinforced her expressed resolve to return to Cyprus at an early date by making a recommendation for deportation. On 4 November 1983, instead of flying to Cyprus the applicant decided to embark on a shorter journey -- to the Islington Registry Office, where she married Mr Huseyin, a Commonwealth citizen who was born in this country in 1959 and had been settled here on 1st January 1973. Whatever else may be said in favour of this marriage from the point of view of the applicant, and it is by no means clear what else can be said, it had, in the submissions made on her behalf, the overwhelming advantage that it deprived the Secretary of State of the right to deport her. The Home Office did not see it that way and the Secretary of State duly made a deportation order on 9 July 1984. The applicant applied for judicial review to quash this order and Farquharson J granted that application. The Secretary of State now appeals. I can deal with the matter comparatively briefly, because the scope for argument has been much reduced by a very recent decision of this court by which we are of course bound. This is R v Immigration Appeal Tribunal ex parte Ruhul (CA transcript 31 July 1987, now reported, [1987] Imm AR 587). Lest the date lead anyone to conclude that this was the judicial equivalent of a "Friday car", it should be added that the judgment had been reserved and was only handed down on that date. The central point in that appeal, as in this, was the true construction of section 1(5) of the Immigration Act, 1971. This is in the following terms: "(5) The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed." Slade LJ, giving the judgment of the court consisting of himself, Stephen Brown LJ and Sir John Megaw, traced the history of immigration control as it affected Commonwealth citizens, their wives and children from the Commonwealth Immigrants Act, 1962. For present purposes it is only necessary to note the position as it obtained after the coming into force of the Commonwealth Immigrants Act, 1968, which amended section 2 of the 1962 Act. Thereafter, whilst there was a general power under section 2(1) to refuse admission to a Commonwealth citizen, this power could not be exercised if the prospective immigrant, "being a woman, satisfies an immigration officer that she is the wife of a Commonwealth citizen who is resident in the United Kingdom" (section 2(2)). Furthermore whilst section 6(1) authorised the deportation of Commonwealth citizens who were convicted of offences punishable by imprisonment, section 6(2) excluded the application of subsection (1) in the case of persons born in the United Kingdom and the wife of such a person. The Immigration Act, 1971 repealed the 1962 Act as from 1 January 1973 and, by section 3(2), required the Secretary of State to make rules: "as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter." This court in Ruhul held that section 1(5): "imposed (i) a mandatory obligation on the Secretary of State to include in the rules appropriate provisions to reflect the previous statutory rights of [persons to whom section 2(2) of the 1962 Act applied] to be given leave to enter and to give them equivalent protection and (ii) a negative obligation on him not to derogate from those rights in framing new rules." The current Immigration Rules (HC 169) include "Part XII Deportation" and paragraphs 148 and 149 in that part faithfully reflect the Secretary of State's power to make a deportation order under sections 3(5), 3(6), 5(1) and 5(4) of the 1971 Act. I emphasise the word "power", because there is no provision in the 1971 Act which requires the Secretary of State to make a deportation order. The order in respect of Mrs Huseyin was in fact made under section 3(6), ie, it was based upon the court's recommendation. What the rules do not provide, what they could have provided and what, applying this court's construction of section 1(5), they had to provide, was that the Secretary of State would not exercise any of his powers to deport and, consequentially, to refuse re-admission if doing so would infringe the statutory rights of persons to whom section 2(2) and 6(2) of the 1962 Act had previously applied. Had the rules so provided or had the Secretary of State acted as if they had so provided, this deportation order could not and would not have been made. I reach this conclusion with extreme reluctance because, as it seems to me, any unmarried woman faced with deportation on whatever grounds, including that her deportation would be conducive to the public good (section 3(5)(b) of the 1971 Act), has only to marry a Commonwealth citizen who was settled in this country on 1 January 1973 to be proof against deportation. Furthermore, the marriage need only be an "immigration marriage" ie, the parties need have no intention of living together permanently as man and wife and indeed may never even have met before the wedding, the sole object of the ceremony being to secure a right to remain in this country. So reluctant was I to reach this conclusion that I considered a point not argued in Ruhul and expressly disavowed by the Secretary of State in this appeal, namely, whether the application of section 1(5) was not limited to Commonwealth citizens settled in this country on 1 January 1973 and those who were their wives or children at that date. I abandoned this line of thought, because I came to the conclusion that it was unlikely that Parliament intended to discriminate between children born before and after 1 January 1973 and also unlikely that it intended to deprive Commonwealth citizens, whose wives had died after that date and who remarried, of the advantage which they had previously enjoyed of having a wife who was entitled to remain in this country by virtue of her status as such. The argument in the court below and before us also took in the true construction of Rule 124, "A woman admitted in a temporary capacity who marries a man settled here should on application be given indefinite leave to remain", the point at issue being whether "admitted in a temporary capacity" referred to the time of admission or to the time when the marriage took place. If, as the learned judge held, the latter was the true construction, the rule had no application to Mrs Huseyin who by that time was an overstayer. I express no view on the point because, in the light of my conclusions on the application of section 1(5), Mrs Huseyin does not need to rely upon Rule 124. I would dismiss the appeal.

Judgment Two:

NEILL LJ: The Secretary of State appeals against the order of Farquharson J dated 15 April 1987 whereby he quashed a deportation order made by the Secretary of State against the respondent dated 9 July 1984. The deportation order was made following a recommendation for deportation made by the Newham Magistrates' Court on 26 October 1983. The power to make a deportation order is contianed in section 5(1) of the Immigration Act 1971 (the 1971 Act) which is in these terms: "Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force." It is to be noted that section 5(1) empowers the Secretary of State to make an order but does not require him to do so. The effect of section 3(5) and section 3(6) of the 1971 Act, which contain the relevant provisions specifying who is "liable to deportation", is set out in Rule 148 of the Immigration Rules (HC 169) made under section 3(2) of the 1971 Act in these terms: "Under sections 3(5)-(6) and 5(1)-(4) of the Act the Secretary of State may, if he thinks fit, make a deportation order requiring a person who does not have the right of abode to leave and remain thereafter out of the United Kingdom: (a) If the person has failed to comply with a condition attached to his leave to enter or remains beyond the authorised time; (b) If the Secretary of State deems the person's deportation to be conducive to the public good; (c) If the person is the wife or the child under 18 of a person ordered to be deported; (d) If the person, after reaching the age of 17, is convicted of an offence for which he is punishable with imprisonment and a court recommends deportation." In the present case the respondent became liable to deportation under section 3(6) of the 1971 Act, having pleaded guilty to an offence for which she was punishable with imprisonment and the court having recommended deportation. Section 7 of the 1971 Act, however, contains provisions exempting certain existing residents from deportation. In addition section 8 contains certain exceptions relating to members of a diplomatic mission and to other persons specified. These exemptions and exceptions are for present purposes sufficiently set out in Rule 149 of HC 169 which is in these terms: "The power to deport applies generally to all people subject to control under the Act, but, under section 8(3), it does not apply to any member of a mission (within the meaning of the Diplomatic Privileges Act 1964), any person who is a member of the family and forms part of the household of such a member, and any other person entitled to the like immunity from jurisdiction as is conferred by the 1964 Act on a diplomatic agent. "Under section 7 a citizen of the Irish Republic or Commonwealth citizen who has been ordinarily resident in the United Kingdom continuously since the coming into force of the Act is not liable to be deported on the ground that his deportation is conducive to the public good; and if he was ordinarily resident here on the coming into force of the Act and has been so resident for the preceding 5 years he is not liable to deportation on any ground." It has at all material times been the case for the Secretary of State that the respondent does not fall within any of the exemptions or exceptions specified in either section 7 or section 8 of the 1971 Act, that these specified exemptions and exceptions are exhaustive, and that as the respondent is a person subject to control under the 1971 Act he had power to make the deportation order. The case for the respondent on the other hand has been that no valid deportation order could be made against her because she is and was on 9 July 1984 the wife of a Commonwealth citizen who was settled in the United Kingdom at the date of the coming into force of the 1971 Act, namely 1 January 1973. It is further her case that by reason of section 1(5) of the 1971 Act HC 169 should have been so framed as to preclude the making of a deportation order in her case. In addition she contends that she should have been given indefinite leave to remain in the United Kingdom on the basis that she was "a woman admitted in a temporary capacity" who had married a man settled in the United Kingdom within the meaning of Rule 124 of HC 169. In view, however, of the conclusion which I have reached on the respondent's primary contention, I do not propose to express any opinion as to the question whether the phrase "a woman admitted in a temporary capacity" in Rule 124 is intended to refer to the woman's status at the date of the marriage or to the capacity in which she entered the country in the first instance. I turn to the argument based on section 1(5) of the 1971 Act. Section 3(2) of the 1971 Act requires the Secretary of State from time to time to lay before Parliament: "statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances . . ." Further matters which are required to be included in these rules (which for the purposes of this appeal are those set out in HC 169) are specified in section 1(4) of the 1971 Act. The provision on which the respondent relies in particular is set out in section 1(5), which is a section which has the heading "General Principles", in these terms: "The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed." Certain matters are not in dispute: a That Mr Huseyin was a Commonwealth citizen settled in the United Kingdom on 1st January 1973. b That the respondent is his wife. c That had the 1971 Act not been passed the respondent would have been free to enter the United Kingdom by reason of the provisions of section 2 of the Commonwealth Immigrants Act 1962 (as substituted by the Commonwealth Immigrants Act 1968). d That had the 1971 Act not been passed no deportation order could have been made against her by reason of the provisions of section 6(2) of the Commonwealth Immigrants Act 1962. It was argued on behalf of the respondent that section 1(5) of the 1971 Act obliged the Secretary of State when framing the new immigration rules in accordance with section 3(2) to include any necessary provisions to protect her right freely to come into and go from the United Kingdom which she would have had under the Commonwealth Immigrants Acts 1962 and 1968 had the 1971 Act not been passed. Thus it will be remembered that a deportation order made under section 5(1) of the 1971 Act prohibits the person who is subject to the order from entering the United Kingdom. For my part I see no answer to this argument. Furthermore, the argument is strongly reinforced by the comprehensive judgment of this court in R v Immigration Appeal Tribunal ex parte Ruhul and others which was given on 31 July 1987 and of which we were provided with a transcript. In that case the Court of Appeal gave consideration to the effect of section 1(5) of the 1971 Act. At page nine of the transcript the court gave this guidance: ". . . section 1(5) was, in our judgment, indisputably intended to cater for the privileged categories specified in sections 2(2) and 2(2A) of the 1962 Act, as amended. Whether or not it had further effect, section 1(5) imposed (i) a mandatory obligation on the Secretary of State to include in the rules appropriate provisions to reflect the previous statutory rights of these categories of persons to be given leave to enter and to give them equivalent protection, and (ii) a negative obligation on him not to derogate from these rights in framing new rules." From this judgment I extract the proposition that the Secretary of State was obliged when framing HC 169 to include provisions which gave persons such as the respondent equivalent protection to that which they would have enjoyed under the Commonwealth Immigrants Acts 1962 and 1968 if the 1971 Act had never been passed. In other words, in setting out "the practice to be followed in the administration of" the 1971 Act the Secretary of State should have included a provision to protect the respondent and persons in her position from the making of a deportation order against them. Under the 1971 Act itself they might become liable to deportation under the provisions in section 3(5) or section 3(6), but the immigration rules should have protected them from the making of a deportation order. I have reached this conclusion without enthusiasm. My Lord has already referred to the merits of the case. But for the reasons which I have endeavoured to outline I see no alternative but to dismiss this appeal.

Judgment Three:

RALPH GIBSON LJ: I agree that this appeal must be dismissed. Section 1(5) of the 1971 Act requires that "the rules" shall be so framed as to achieve the stated result, namely that "Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed". This court, in R v Immigration Appeal Tribunal ex parte Ruhul, 31 July 1987, held that section 1(5) imposes, firstly, a mandatory obligation on the Secretary of State to include in the rules appropriate provisions to reflect the previous statutory rights (of persons in the categories specified in section 2(2) and 2(2A) of the 1962 Act) to be given leave to enter and to give them equivalent protection and, secondly, a negative obligation on him not to derogate from those rights in framing new rules. The court was there concerned with a claim to enter and not with deportation. Immunity from deportation was given to persons in the relevant categories not by section 2 of the 1962 Act but, as my Lord The Master of the Rolls has pointed out, by section 6(2) of that Act. The primary submission made by Mr Havers for the Secretary of State on this appeal was that section 1(5) applies only to the immigration rules and not to the provisions of the 1971 Act itself. The circumstances in which a person becomes liable to deportation are laid down in the Act by section 3(5) and (6) and by section 5. The references in the rules to deportation are, he said, merely descriptive of the statutory powers and do not confer any power. Therefore section 1(5) has no application in such a case as this. He further argued that the decision of this court in ex parte Ruhul has no application to deportation. If Parliament had intended section 1(5) to control the powers of the Secretary of State with reference to deportation then, Mr Havers contended, either in section 5 or in section 7 there would have been express reference to such restriction and there is none. I agree with my Lords that these submissions cannot be accepted. The fact that the power of deportation is given to the Secretary of State by the Act and the fact that section 1(5) directs that the required result be achieved by the framing of the rules cannot be decisive since it is not in issue that, notwithstanding the terms of the Act, the required result can properly be achieved by the rules which the Secretary of State is required by section 1(4) to lay down. I was impressed by the point made with reference to section 7 which is headed "Exemption from Deportation for Certain Existing Residents" and which makes no reference to the effect on exemption from deportation claimed by this respondent under section 1(5). I have, however, been unable to see any way in which the clear meaning of section 1(5) can be limited so as to exclude from the result to be achieved the exemption from deportation which "if this Act had not been passed" this respondent would have enjoyed. "The rules" mentioned in section 1(5) must be the rules mentioned in section 1(4): ie, "the rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode". A similar phrase is used in section 3(2). I have considered whether "the rules" which are required by section 1(5) to achieve the stated result were intended to be limited to those concerned firstly with entry into the United Kingdom and secondly stay in the United Kingdom in the sense of the period of time permitted and the conditions imposed, and not to extend to rules concerned with deportation from the United Kingdom under powers given by the Act. This point was not part of the submissions first made for the Secretary of State but when it was raised in the course of argument Mr Havers was minded to adopt it but, I think, not with any confidence. Mr Pannick contended that such a restriction was impossible because it would cause rules made outside the stated category to be ultra vires. Whether or not Mr Pannick is right in that submission it seems to me impossible to restrict the meaning of "the rules" in section 1(5) in this way. The result which is required to be achieved is that a category of persons in which this respondent is included shall be no "less free to come and go from the United Kingdom than if this Act had not been passed". The statutory immunity from deportation which the respondent would have enjoyed under section 6 of the 1962 Act was repealed by the 1971 Act. That immunity can be effectively secured by appropriate provision in the rules. The appeal must accordingly fail.

DISPOSITION:

Appeal dismissed Leave to appeal to the House of Lords refused

SOLICITORS:

Treasury Solicitor, Mathias & Co