Ibrahim v. Immigration Appeal Tribunal

IBRAHIM v IMMIGRATION APPEAL TRIBUNAL

Court of Appeal (Civil Division)

[1989] Imm AR 111

Hearing Date: 3 November 1988

3 November 1988

Index Terms:

Deportation -- notice of intention to deport under s 3(5)(a) of the 1971 Act -- whether Secretary of State empowered to issue at the same time notices of intention to deport to members of the same family under s 3(5)(c) of the 1971 Act -- the true construction of s 3(5)(c). Immigration Act 1971 ss 3(5)(a), 3(5)(c), 5(1), (3), (4), 15(1), (2), (7), (8), (9).

Held:

Appeal from the Divisional Court. The Secretary of State had decided to initiate deportation proceedings against a citizen of Cyprus who had become an overstayer. Notice was served on her pursuant to s 3(5)(a) of the 1971 Act. At the same time the Secretary of State served like notices of intention to deport on her two children, pursuant to s 3(5)(c). All three appeals were accordingly heard by the Tribunal at first instance, as "related appeals". They were dismissed. Judicial review was sought, it being argued that following ex parte Mehmet, no notices could be served on the children under s 3(5)(c) while the mother was subject only to a notice of intention to deport. The Tribunal had accordingly no jurisdiction to hear the consolidated appeals at first instance. Judicial review was refused. On appeal the same submissions were made to the Court of Appeal, and argument was directed to the true construction of the phrase, in s 3(5)(c) of the 1971 Act "is or has been ordered to be deported". Held: 1. It is fundamental to the general construction of the Immigration Act as a whole that there is a distinction between a decision to deport and the actual making of a deportation order: it is the general approach of the Act that the family should be treated as a unit for purposes of immigration law. 2. Approaching the problem of construction in that way, the most appropriate interpretation to be given to the phrase "is or has been ordered to be deported" was that adopted by the Tribunal and the Divisional Court. 3. The Secretary of State was therefore entitled to serve notices under s 3(5)(c) on members of the family of a person on whom only a notice of intention to deport had been served pursuant to s 3(5)(a). 4. In ex parte Mehmet the Court did not appear to have had drawn to its attention the provisions of ss 5(3) or 15 of the 1971 Act; it was accordingly led into error on the interpretation of s 3(5)(c).

Cases referred to in the Judgment:

Suthendran v Immigration Appeal Tribunal [1977] AC 359: [1977] Imm AR 44. R v Immigration Appeal Tribunal ex parte Ekrem Mehmet (No 2) [1978] Imm AR 46. R v Immigration Appeal Tribunal ex parte Gulten Ibrahim and ors [1988] Imm AR 385.

Counsel:

A Riza for the appellant; R Jay for the respondent PANEL: May, Croom-Johnson, Woolf LJJ

Judgment One:

WOOLF LJ: This is an appeal against the decision of the Divisional Court given on 8 March 1988. The Divisional Court, in a judgment delivered by Tudor Evans J with which Watkins LJ agreed, dismissed an application for judicial review to quash the decision of the Immigration Appeal Tribunal made on 27 March 1986. The issue on this appeal, which is the same issue as was before the Divisional Court, is whether a member of the family of a person whom the Secretary of State has decided to deport, but has not ordered to be deported, is liable to be deported. The answer to that issue is to be found in the proper construction of section 3(5)(c) of the 1971 Act when that section is construed in the light of the other provisions contained in the Act. Before turning to the statutory provisions, it is necessary to refer shortly to the facts relating to the appellants which explain the circumstances in which the appeal arises. There was no dispute with regard to these facts before the Immigration Appeal Tribunal, or indeed before the Divisional Court or this court. Mrs Gulten Ibrahim and her two children came to this country after Mrs Ibrahim's husband who had come to this country in Decmeber 1978. When the husband came into this country he was granted leave to enter for one month. He in fact remained here without authority and undetected until his arrest on 27 March 1984. Mrs Ibrahim and the two children arrived in this country in August 1979. She was admitted as a visitor for one month and she and the children, who are now aged 6 and 9, joined the husband and they also remained in this country until the husband's arrest, without obtaining any extension of the leave which had been granted to Mrs Ibrahim to remain in this country. In August 1983 the husband was served with a deportation order. In July 1984 he was served with removal directions. He appealed against those removal directions but that appeal failed and in September 1985 he was removed to Cyprus. On 6 September 1985 the Secretary of State made a decision to deport the mother under section 3(5)(a) of the Act and the children under section 3(5)(c) of the Immigration Act 1971. An appeal was entered against both those decisions and the appeal was heard by the Tribunal. It was the decision of that Tribunal which was the subject of the application for judicial review and which ultimately has given rise to this appeal. The primary section of the Act which requires interpretation is that contained in section 3(5), the terms of which so far as relevant are as follows: "A person who is not [a British citizen] 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." I interpose here to say that subsection 3(5)(a) is the subsection pursuant to which the mother appealed. "(c) if another person to whose family he belongs is or has been ordered to be deported." It is under subsection (5)(c) that the decision was reached by the Secretary of State to deport the children. The contention which was advanced before this court, the Divisional Court and the Tribunal is that if one approaches subsection (5)(c) in accordance with the ordinary rules of construction it is clear that the Secretary of State had no power to make a decision in relation to the children, because section 3(5)(c) should be read so as to mean that the children only become liable to be deported when the mother is, or has been, the subject of an order of deportation, which was not the case here. Before going on to consider that submission further, it is right that I should point out that no reliance is made in this case upon the fact that the father had in fact been deported and prior to being deported had been ordered to be deported. It is possible that if the Secretary of State had chosen to do so, he could have relied on the fact that an order had been made in respect of the father. Had he sought to rely on that order, then the present point would not have arisen for consideration, but this basis for justifying the decision in relation to the children cannot be relied upon by the Secretary of State because it was the mother's contention that her marriage to the husband had broken down and that at the material time both she and the children had ceased to be part of the husband's family. With regard to the critical question of the interpretation of section 3(5)(c), in the course of argument Croom-Johnson LJ pointed out that the interpretation of the important words "is or has been ordered to be deported" could depend on where one took the view that brackets should be hypothetically inserted into the subsection. The brackets could be inserted after the word "is" and before the word "ordered". If one then removed the intervening words, the subsection would read "is ordered to be deported". Alternatively the brackets could be inserted after the word "is" and before the word "to", and the subsection on that basis would read -- "if another person to whose family he belongs is to be deported". Clearly the meaning would differ, depending upon where you put the brackets. The view of the Tribunal and the view of the Divisional Court was that the language of the section should be read as though the brackets began before the word "or" and closed after the word "ordered"; in other words, the effect of the subsection, so far as the relevant words are concerned, is to make members of the family liable to deportation in two alternative situations. The first situation is, on the one hand, where the other person to whose family they belong is to be deported, and the second situation being one where the person to whose family they belong has been ordered to be deported. It is only in the second of the two alternative situations that there has to be an order for deportation already made. It is sufficient in the first of the two situations if it is a person who is to be deported in the sense that he is a person who is intended to be and is liable to be deported. As was pointed out in the course of argument, unless that interpretation (that is, the interpretation that the subsection covers two alternative situations, one where there has been an order for deportation and the second where the person is to be deported) is adopted, it is difficult to give any meaning to the alternative situations which the subsection clearly creates. Mr Riza, in his helpful, clear and realistic submissions before the court, recognised that difficulty and doing the best that he was able he could only explain the alternative situations posed by the subsection, if his interpretation was correct, on the basis that perhaps the language was intended to cover the situation where there was some addition to the family arising out of a subsequent marriage of the principal person to be deported, or as a result of children being adopted. It does not seem to me that that could be the explanation for the two alternatives which were clearly contemplated by the language of the subsection. However, one conceivable explanation for the alternative is to be found in section 5(3), to which I will come later, because that subsection provides that "a deportation order shall not be made against a person as belonging to the family of another person if more than eight weeks have elapsed since the other person left the United Kingdom . . ." The fact that there is there a reference to a situation where the other person has left the United Kingdom could justify the reference to "has been ordered to be deported". A person who has left the United Kingdom is no longer ordered to be deported, because he has already left although he had been ordered to be deported: whereas a person who is subject to a deportation order but has not left the United Kingdom as yet, is someone who is ordered to be deported. However, notwithstanding that possibility, it is my view, on the ordinary use of language, that the more appropriate interpretation is the one adopted by the Immigration Appeal Tribunal and the Divisional Court. I say that in particular because, as again will appear later in this judgment, it is fundamental to the general construction of the Immigration Act as a whole that there is a distinction between a decision to deport and the actual making of the deportation order, and also that it is the general approach of the Immigration Act that the family should be treated as a unit for the purposes of immigration law. Turning to the relevant subsequent provisions of the Act, in addition to section 3(5) it is relevant to point out that section 5(1) provides: "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." Section 5(3), to which reference has already been made, in addition to providing that a deportation order shall not be made against persons belonging to the family of another person if more than eight weeks have elapsed since the other person has left the United Kingdom, goes on to provide that a deportation order also shall not be made "if the deportation order made against the other person ceases to have effect". Section 5(4) contains a definition of the family for the purposes of the relevant provisions now under consideration. The subsection reads: "For purposes of deportation the following shall be those who are regarded as belonging to another person's family -- (a) where that other person is a man, his wife, and his or her children under the age of 18; and (b) where the other person is a woman, her children under the age of 18." The subsection then goes on to deal with adopted children, but it is not necessary to refer to those provisions of the subsection. Turning to section 15, this contains the provisions of the Act dealing with the right of someone who is liable to deportation to appeal. Section 15(1) provides: "Subject to the provisions of this Part of this Act a person may appeal to an adjudicator against -- (a) a decision of the Secretary of State to make a deportation order against him by virtue of section 3(5) above; or (b) a refusal by the Secretary of State to revoke a deportation order made against him." It is that subsection that draws the distinction between a decision to deport and the actual deportation order. That distinction is emphasised by subsection (2), which provides: "A deportation order shall not be made against a person by virtue of section 3(5) above, so long as an appeal may be brought against the decision [my emphasis] to make it nor, if such an appeal is duly brought, so long as the appeal is pending; but in calculating the period of eight weeks limited by section 5(3) above for making a deportation order against a person belonging to the family of another person, there shall be disregarded any period during which there is pending an appeal against the decision to make it." Subsection (7), so far as relevant, deals with the situations where an appeal shall go direct to an Appeal Tribunal rather than go to, first, an adjudicator and then by way of appeal to the Appeal Tribunal, which is what happens in the case of a normal appeal against a decision to make a deportation order. Section 15(7) reads, so far as relevant: "An appeal under this section shall be to the Appeal Tribunal in the first instance, instead of to an adjudicator, if (a) it is an appeal against a decision to make a deportation order and the ground of the decision was that the deportation of the appellant is conducive to the public good; or (b) it is an appeal against a decision to make a deportation order against a person as belonging to the family of another person, or an appeal against a refusal to revoke a deportation order so made;" It was under section 15(7)(b) that the children's appeal went to the Appeal Tribunal in this case. (c) "there is pending a related appeal to which paragraph (b) above applies". It was under (c) that the appeal of the mother went direct to the Appeal Tribunal in this case. Subsection (8) reads: "Where an appeal to an adjudicator is pending under this section and before the adjudicator has begun to hear it a related appeal is brought, the appeal to the adjudicator shall be dealt with instead by the Appeal Tribunal and be treated as an appeal duly made to the Tribunal in the first instance." Subsection (9): "In relation to an appeal under this section in respect of a deportation order against any person (whether an appeal against a decision to make or against a refusal to revoke the order), any other appeal under this section is a 'related appeal' if it is an appeal in respect of a deportation order against another person as belonging to the family of the first-mentioned person." The language of section 15(9) in particular is by no means easy. However, the intent of subsection (9) is clear. What is intended by that subsection, when read together with subsections (7) and (8), is that if there are two appeals one by the parents and one by the other members of the family, then the two appeals should be linked and the appeal of the parent and the appeal of other members of the family should both go before the Appeal Tribunal, subject to the qualification contained in subsection (8) that, if an appeal to an adjudicator is not only pending but the hearing has commenced, then that appeal will continue before the adjudicator notwithstanding the fact that there is a subsequent appeal by the other members of the family. That being the intent of the combined effect of section 15, subsections (7), (8) and (9) it becomes critical with regard to the issue at present raised to note that in subsection (9), in relation to what I will call the principal appeal, that is the appeal of the parent, it is specifically provided that the subsection shall apply whether the appeal is against a decision to make a deportation order, or against the refusal to revoke the order. That reference is critical, because it pre-supposes that there can be a situation where at the same time there is an appeal against a decision to make a deportation order against the parent and an appeal against a decision to make a deportation order against the members of the family. The fact that there can be such a situation makes it clear that it is not possible to adopt the interpretation urged by Mr Riza because, if his interpretation was correct, it would not be possible for an appeal by the members of the family to take place until after a deportation order had been made in respect of the parent and because of the language of section 15(2) a deportation order cannot be made while an appeal is still pending against a decision to make a deportation order. The language of subsection (9) therefore conclusively shows that you can have a situation where there is at the same time two decisions, one a decision to deport a parent, and secondly a decision to deport other members of the family and they can exist together even though no deportation order has yet been made in respect of those decisions. That that should be the result is in accord with what one would expect from the general approach adopted by the Immigration Act 1971 to which I have already referred. If the situation were otherwise, the consequences would be that whereas you would expect children, or indeed a wife, to be deported at the same time as the husband, in fact if the children or the wife wanted to appeal there would be a situation created where either the husband would be left in a state of uncertainty so far as his removal was concerned, until the decision was finally made in respect of the wife and children, or there would be a situation where the husband would be removed first and only after he had been removed would the fate of the wife and children finally be determined. This would clearly have a divisive effect upon the family and is not an effect which Parliament would readily wish to bring about. The language of subsection (9) however, as has already been made clear, is not easy and Mr Riza, in support of his contentions was able to draw this court's attention to a decision of the Divisional Court presided over by the Lord Chief Justice in R v Immigration Appeal Tribunal, ex parte Mehmet [1978] Imm AR 46 in which the court clearly took a different view of the statutory provisions that are here under consideration. In Mehmet the court had to consider the effect of a deportation order being quashed by an order of certiorari on the position of a wife and children and in the course of his judgment the Lord Chief Justice said this at page 49: "As far as the mother and daughter are concerned, the first question we have to consider is whether they remain within s 3(5)(c) when the father's deportation order had been set aside. It will be remembered that the conditions necessary to bring s 3(5)(c) into operation are that another person who is the father to whose family the mother and daughter belong 'is or has been ordered to be deported'. Of course the father was ordered to be deported, but the order was not sustained and it was set aside in this Court by Certiorari. Can one then say that nevertheless the mother and the daughter are still members of a family of whom another member 'is or has been ordered to be deported'? In my judgment, one cannot. The effect of Certiorari quashing the deportation order was to remove it altogether. It does not seem to me possible to construe s 3(5)(c) as though the survival of a decision to make a deportation order against the father is enough to satisfy that requirement." Clearly in that passage of that judgment, with which the other members of the court agreed, the Lord Chief Justice was taking a different view from which I have indicated is the proper interpretation of section 3(5)(c). It is not apparent from the report as to the nature of the argument which was advanced to the Lord Chief Justice which caused him to come to that conclusion. However, it is noticeable that he makes no reference to the relevant provisions of section 15, to which I have referred earlier in this judgment, and therefore I draw the inference that those subsections were not drawn to the court's attention. In addition no reference is made to section 5(3) and in particular the closing words of the subsection, which provide that "A deportation order shall not be made against persons belonging to the family of another person if the deportation order made against the other person ceases to have effect." Clearly, once a deportation order has been quashed, it ceases to have effect. Mr Riza submitted that the words "ceases to have effect" are being used in some technical sense, as indicated by subsection (2) of the same section, which states: "A deportation order against a person may at any time be revoked by a further order of the Secretary of State and shall cease to have effect if he becomes a British citizen." Mr Riza submits that the concluding words of subsection (3) are limited to a situation dealt with in the concluding words of subsection (2). I cannot accept that submission. It seems to me that the language of subsection (3) is clearly language which is appropriate to regard as covering the situation which was being dealt with by Lord Widgery, CJ in Mehmet. It is my view that if the provisions of section 15 and the provisions of section 5(3) had been drawn to the attention of the Divisional Court in Mehmet, they would not have come to the conclusion there expressed. Those provisions not having been drawn to the attention of the court, the court was led into error and the decision of the Divisional Court in Mehmet, in so far as it deals with section 3(5)(c) must be regarded as being wrong and I would overrule that decision. In my view, for the reasons that I gave earlier in this judgment, the appeal provisions contained in section 15 are so clear that it is not possible to adopt the interpretation which was adopted by the Lord Chief Justice in the case of Mehmet. In support of his argument that we should take a different view Mr Riza referred to a passage from the speech of Lord Simon of Glaisdale in Suthendran v Immigration Appeal Tribunal [1977] AC 359 at 368 where Lord Simon said: "Parliament is prima facie to be credited with meaning what is said in an Act of Parliament . . .". And later: "The drafting of statutes, so important to a people who hope to live under the rule of law, will never be satisfactory unless courts seek whenever possible to apply 'the golden rule' of construction -- that is, to read the statutory language, grammatically nd terminologically, in the ordinary and primary sense which it bears in its context, without omission or addition. Of course, Parliament is to be credited with good sense; so that where such an approach produces injustice, absurdity, contradiction or stultification of statutory objective, the language may be modified sufficiently to avoid such disadvantage, though no further." Mr Riza was correct to remind us of those helpful remarks by Lord Simon as to the approach to statutory construction. In coming to the conclusion which I expressed earlier in this judgment as to the proper approach to the interpretation of the sections here under consideration, I have sought to apply what Lord Simon said. In my view the ordinary grammatical, terminological and indeed the ordinary primary meaning of section 3(5)(c) is that which I have pointed out. If that is not correct, then certainly this is a case where the intent of the Act would be stultified if the interpretation which I regard as correct were not to be adopted. For those reasons I would dismiss this appeal.

Judgment Two:

CROOM-JOHNSON LJ: I agree.

Judgment Three:

MAY LJ: The drafting of relevant provisions of the Immigration Act 1971 is not always immediately clear, but on the ordinary principles of construction, and when regard is had, as my Lord has pointed out, to the appellate provisions in section 15 of the Act, in my opinion it becomes quite clear that section 3(5)(c) of the Act is to be read in this way: a person who is not patrial shall be liable to deportation from the United Kingdom -- (c) if another person to whose family he belongs is to be deported or has been ordered to be deported. I respectfully agree also with my Lord that the dictum in the judgment of the Lord Chief Justice in the case of Mehmet, to which he has referred, cannot for the reasons which he gave now be relied on. For the reasons given by my Lord, I also agree that this appeal must be dismissed.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Turkan & Co; Treasury Solicitor