O'Shea v. Secretary of State for the Home Department

O'Shea v Secretary of State for the Home Department

Court of Appeal (Civil Division)

[1988] Imm AR 484

Hearing Date: 18 March 1988

18 March 1988

Index Terms:

Deportation -- alien -- overstayer who went to ground -- notice of intention to deport not served -- deportation order signed -- subsequent marriage to British citizen -- application for indefinite leave -- refusal of Secretary of State to revoke deportation order -- whether appellant entitled to indefinite leave under paragraph 124 of HC 169 -- whether the appellant was protected by s 1(5) of the 1971 Act. Commonwealth Immigrants Act 1962 (as amended) ss 2(2), 6(2): Immigration Act 1971 ss 1(5), 5(1): Aliens Order 1953 (SI 1671 of 1953) (as amended by the Aliens (Appeals) Order 1970 (SI 151 of 1970) r 20: HC 169 paras 124, 126, 166, 167, 170, 171.

Held:

Appeal from Mann J. The appellant was a citizen of Columbia who overstayed her leave as a visitor and went to ground. A decision to initiate deportation proceedings was taken, but the notice was not served on her, her whereabouts being unknown. In due course a deportation order was signed. She subsequently came to the notice of the authorities after she married a British citizen and application was made for her to be given indefinite leave under paragraph 124 of HC 169. That was refused and the Secretary of State refused to revoke the deportation order. Her application for judicial review was dismissed. On appeal, it was argued that following Ruhul and Zalihe Huseyin the appellant enjoyed the protection of s 1(5) of the 1971 Act. It was also argued that she was entitled to indefinite leave under paragraph 124 of HC 169, which made different provision for wives from those provided for husbands in paragraph 126. Before the Court of Appeal but apparently not fully below, it was contended that the application made on her behalf after her marriage was an application for the revocation of the deportation order. Held: 1. The appellant as an alien secured no rights under pre-1971 legislation which would assist her: in particular she secured no rights under the Commonwealth Immigrants Act 1962 such as to give her immunity from deportation under s 1(5) of the 1971 Act. Ruhul and Huseyin distinguished. 2. Paragraph 124 had no relevance to the case, but if it had, no support could be derived from reliance on the different provisions of paragraph 126: paragraph 126 does not deal with cases where a deportation order has already been signed. 3. The case fell to be decided under paragraph 171 of HC 169. The Secretary of State's decision could not be faulted on the facts.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Ruhul (CA) [1987] 1 WLR 1538: [1987] Imm AR 587. Secretary of State for the Home Department v Zalihe Huseyin (CA) [1988] Imm Ar 129. R v Secretary of State for the Home Department ex parte O'Shea (unreported, QBD, 29 October 1987).

Counsel:

IJA Kumi for the appellant; D Pannick for the respondent PANEL: Slade, Staughton LJJ, Sir Roualeyn Cumming-Bruce

Judgment One:

SIR ROUALEYN CUMMING-BRUCE: This appeal raises a single question of construction. S 5(1) of the Immigration Act 1971 provides: ". . . 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." Section 1(5) of the same Act provides: "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." The rules relevant to this case are the Statement of Changes in Immigration Rules 1983 (HC 169). In part XI of those rules, rules 93 to 147 deal with "Variation of leave to enter or remain." Rule 124, under the sub-heading "Marriage" provides: "A woman admitted in a temporary capacity who marries a man settled here should on application be given indefinite leave to remain . . ." Part XII comprises rules 148 to 171 under the heading "Deportation". Rules 170 and 171 come under a sub-heading "Revocation of deportation orders." Rule 171 provides: "Applications 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 3 years." In the material passage of his judgment Mann J stated: "On 11th July 1985 the applicant married a man who was settled here. On the basis of that marriage she applied for indefinite leave to remain by reference to paragraph 124 of HC 169. The applicant had now emerged from the obscurity into which she had removed herself. Whether or not the applicant falls within paragraph 124 of HC 169 is not a matter with which I concern myself. My concern arises in a different direction. Section 5(1) of the Immigration Act 1971 provides:

'. . . 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.'Thus, if indefinite leave had been granted, it would have been invalid because the deportation order was in force. That order is in force to this day. The only way in which the applicant can embark upon the road to success is to flaw the deportation order or to get it revoked if it be valid. There has not been an application to revoke."

He proceeded to examine the submission that it had been flawed by reason of the absence of actual service of the decision to deport, and rejected that submission. There is no appeal against that part of his judgment so that this court is not concerned with that point. The case for the appellant in this court is simply that the learned judge was wrong in holding that there had been no application to revoke the order, and that he should have held that rule 124 gave the applicant the right to remain upon her marriage to a British citizen settled in the United Kingdom. For the Secretary of State it is submitted that rule 124 is nihil ad rem, because the relevant rule is rule 171. That is the issue that this court has to decide. In this court it was accepted on behalf of the Secretary of State that though there had been no express application to revoke the deportation order, on a fair reading of the application made on behalf of the applicant it should be understood as necessarily implying an application to revoke the order. We agree, and it is clear that the Secretary of State treated the application in that way. It is right that it should be made clear that if the issue argued before us on behalf of the appellant was raised at all before the learned judge, it certainly was not elaborated as it has been before this court. The facts With that introduction, I come to the facts relevant to the appeal, omitting facts relevant to that part of the decision of the learned judge which is not challenged in this court. On 9 April 1960 the appellant was born in Columbia. Her name was Claudia Mendez Arbelaez, a Columbian national. On 17 April 1982 she arrived in the United Kingdom, carrying a Columbian passport. She applied for leave to enter as a visitor in order to attend her sister's wedding. She was given leave to enter and to remain for one month on condition that she did not enter employment or engage in any business or profession. She gave as her address in England, 155 Smarts Lane, Loughton, Essex. She did not leave the United Kingdom at the end of the permitted month but overstayed without applying for any extension. She left the address that she had given to the Home Office without disclosing the fact. In October 1982 the Home Office made enquiries, without success, to discover where she was. On 31 January 1983 the Secretary of State decided to make a deportation order, but could not serve notice of the decision as she could not be traced. On 8 June 1984 the deportation order was made, but could not then be served for the same reason. On 11 July 1985 she married James Patrick O'Shea, a British citizen, settled in the United Kingdom. On 19 July 1985 the Home Office received a letter dated the day before from the Central London Law Centre, writing on behalf of the appellant. For present purposes the relevant passages of the letter read as follows: "Re: Claudia Mendez Arbezaez We write on behalf of the above named regarding her application to stay in the United Kingdom on the basis of her marriage to Mr James Patrick O'Shea . . . They were married on the 11th July 1985 at the Kensington and Chelsea Register Office . . . We would be grateful if your department can regularise Ms Mendez stay in the United Kingdom." In January 1986 the appellant and her husband attended for interview by an immigration officer, who reported to HM Chief Inspector on 24 January 1986. As appears from paragraph 8 of the affidavit of Mr Pawsey, SEO in the Immigration and Nationality Department of the Home Office, sworn on 30 July 1986, the application from the Central London Law Centre was then considered by officers on behalf of the Secretary of State in the light of paragraphs 170 and 171 of the Immigration rules HC 169. I quote: ". . . It was not considered that the circumstances justified the revocation of the Deportation Order and the Central London Law Centre was so advised by the letter dated 19th February 1986 . . ." That letter reads: "MRS CLAUDIA O'SHEA -- COLUMBIAN -- BORN 9TH APRIL 1960. Thank you for your letter of 18th July 1985 about the above named in which you request she be granted indefinite leave to remain by virtue of her marriage to a British citizen, James Patrick O'Shea. The Secertary of State has carefully considered this application but, as a deportation order was signed against Mrs O'Shea (nee Mendez) on 8 June 1984, her marriage gives her no claim to remain in the United Kingdom. In the light of information given on interview by her and her husband, it is not considered that there are the most exceptional circumstances for not deporting her. Mrs O'Shea was served with the deportation order on 21 January 1986 and her appeal against direction for removal on deportation will now be allowed to go on to a hearing . . ." It is to be observed that the last sentence of rule 171 of HC 169 is in these terms: "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 less than three years." The letter of 19 February communicated the Secretary of State's refusal to revoke the deportation order. The Judicial Proceedings There followed on 12 March 1986 notice of application for leave to apply for judicial review. (On 15 April 1986 her appeal against destination was dismissed.) On 5 June 1986 leave was granted to apply for judicial review. On 29 October 1987 Mann J in the Queen's Bench Division dismissed her motion for judicial review. Her notice of appeal to this court was received on 19 November 1987. The submissions Mr Kumi for the appellant accepted that unless section 5(1) of the Immigration Act 1971 was qualified in its operation by subsequent legislation or by rules having such effect, the deportation order made on 8 June 1984 invalidated the leave given to the appellant to enter and remain in the United Kingdom on 17 April 1982. But he submitted that rule 124, made under section 1(5) of the 1971 Act imposed upon the Secretary of State a mandatory duty when administering the Act to give the appellant indefinite leave to remain after her marriage to a man settled here. The rule, he said, overrides the Act as it is intended to control the practice to be followed in the administration of the Act. He relied upon the judgment of this court in R v Secertary of State for the Home Department, ex parte Zalihe Huseyin decided on 30 October 1987, two days after the judgment of Mann J in this case. In that case this court followed the earlier decision of this court in R v Immigration Appeal Tribunal ex parte Ruhul [1987] 1 WLR 1538, when it held that section 1(5) of the 1971 Act imposed (i) a mandatory obligation upon 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 Commonwealth Immigrants Act 1962 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. As the Master of the Rolls held in Huseyin (supra) part XII of HC 169 reflects the power of the Secretary of State to make a deportation order but the rules also had to provide that the Secretary of State could not exercise any of his powers to deport if to do so would infringe the statutory rights of persons to whom section 2(2) and 6(2) of the 1962 Act had previously applied. Mr Pannick for the Secretary of State submitted that consideration of the structure of the 1971 Act and the rules made it clear that rule 124 in part XI of the rules did not apply at all to the case of the appellant. The bundle of rules 93 to 147 appear in the part headed with the words "Variation of leave to enter or remain" and deals with persons who have been admitted with leave for a limited period and who apply for variation of that leave. But by section 5(1) of the 1971 Act, once the deportation order was made, it invalidated her original leave to enter or remain in the United Kingdom, so that the bundle of rules in part XI ceased to have any application to her case. The relevant rules are those in part XII including rule 171 which the Secretary of State followed. The cases of Ruhul (supra) and Huseyin (supra) had no application to the appellant's situation. She had no rights as a Commonwealth immigrant. She was a Columbian national and an alien to whom rule 20 of the Aliens Order 1953 (1953 No 1671) applied, as amended by Article 17(1) of the Aliens (Appeals) Order 1970 )1970 No151). Conclusion I would accept the submissions made on behalf of the Secretary of State. Section 5(1) of the Immigration Act 1971 had the effect of invalidating the leave to enter or remain given to the appellant on entry in 1980. She had no rights under the Commonwealth Immigrants Act 1962, or any other Act save by virtue of the provisions of the Aliens Restriction Acts of 1914 and 1919, and section 14 of the Immigration Appeals Act 1969, none of which can avail her. In deciding whether to revoke the deportation order the Secretary of State rightly had regard to the guidance given in rule 171 of the immigration rules which expressly provides guidance with respect to revocation of deportation orders. He considered whether there were most exceptional circumstances for revoking the order which had been in force less than three years. Rule 124 was not material because the appellant as an alien had no statutory rights which it was the duty of the Secretary of State to protect. It is unnecessary therefore to embark upon any question of the proper construction of rule 124. For these reasons I would dismiss the appeal.

Judgment Two:

STAUGHTON LJ: I agree. At one time I was impressed by the argument that, since rule 126 of HC 169 expressly mentions deportation as an impediment when a man is seeking leave to remain or an extension of stay on the ground of marriage to a woman settled here, it is by implication excluded from rule 124, which deals with the converse case of a woman's application on the ground of marriage, where there is no mention of deportation. Mr Kumi sought to support that argument by reference to HC 503, in which an amendment was made so as to secure equal treatment for both sexes, although the amendment has no direct effect on this case. However, I am now convinced that this argument should not prevail. Rule 124 provides: "A woman admitted in a temporary capacity who marries a man settled here should on application be given indefinite leave to remain. If she marries a person who has only limited leave to enter, her leave should, if necessary, be varied by extending its duration so that it coincides with his." And rule 126: "Where a man admitted in a temporary capacity marries a woman settled here, an extension of stay or leave to remain will not be granted, nor will any time limit on stay be removed, unless the Secretary of State is satisfied: (a) that the marriage was not entered into primarily to obtain settlement here; and (b) that the parties to the marriage have met; and (c) that the husband has not remained in breach of the immigration laws before the marriage; and (d) that the marriage has not taken place after a decision has been made to deport him or he has been recommended for deportation or been given notice under sectin 6(2) of the Immigration Act 1971; and (e) that the marriage has not been terminated; and (f) that each of the parties has the intention of living permanently with the other as his or her spouse. Where the Secretary of State is satisfied that all the conditions at (a) to (f) above apply, the husband will be allowed to remain, for 12 months in the first instance, provided that the wife is a British citizen. At the end of the 12 months' period the time limit on the husband's stay may, subject to (a) to (f) above, be removed. None of the three events in paragraph (d) of that rule is the same as the making of a deportation order; in particular, a decision to deport is a different and earlier stage in the process from the making of an order, as is shown by rules 166 to 167. It follows that rule 126 says nothing about what should happen if a deportation order has already been made; nor can it be inferred that there was any deliberate omission to deal with such a case in rule 124. The effect of a deportation order already made is, as my Lord has said, dealt with elsewhere in the Act and the rules. In those circumstances it is unnecessary to express any concluded opinion as to whether those matters expressly mentioned in rule 126 are by implication excluded from consideration under rule 124; and I do not do so.

Judgment Three:

SLADE LJ: I entirely agree with the judgment of Sir Roualeyn Cumming-Bruce and add these brief comments only because I was a party to the Ruhul decision. In applying that decision in Huseyin Sir John Donaldson MR said: "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 1st January 1973 to be proof against deportation." Mr Kumi placed strong reliance on that sentence in his argument in the present case. However, the Huseyin case concerned a lady who was herself a Commonwealth citizen, being a citizen of Cyprus. The Court of Appeal in that case therefore did not have to consider whether section 1(5) of the Immigration Act 1971 renders immune from deportation the wife, not herself being a Commonwealth citizen, (such as the appellant in the present case) of the Commonwelth citizen settled in the United Kingdom on 1 January 1973. In my judgment it is plain that section 1(5) confers no such immunity on such a person. The protection given by section 2(2) of the Commonwealth Immigrants Act 1962 (both in its original form and as amended by section 2 of the Commonwealth Immigrants Act 1968) and by section 6(2) of the 1962 Act, applied to no one who was not himself or herself a Commonwealth citizen. An alien, such as the appellant in the present case, would not have been immune from deportation even prior to 1 January 1973 under the 1962 and 1968 Acts. Thus, in my judgment, neither section 1(5) of the 1971 Act, nor the decision in Ruhul, nor the decision in Huseyin enables an unmarried woman such as the appellant who is an alien faced with deportation to claim immunity from deportation merely by marrying a Commonwealth citizen who was settled in this country on 1 January 1973. In the event the appellant became liable to deportation from the United Kingdom when she remained beyond the time of one month limited by the leave to enter given her on 17 April 1982; (see section 3(5)(a) of the 1971 Act). Once it is accepted that rule 171 of the immigration rules was the relevant rule for the Secretary of State to apply (as I do accept) there can be no challenge to his view that there were on the facts no "most exceptional circumstances" justifying the revocation of the deportation order.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Borm Reid & Co; Treasury Solicitor

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