Singh v. Secretary of State for the Home Department

Singh v Secretary of State for the Home Department

Court of Appeal (Civil Division)

[1990] Imm AR 124

Hearing Date: 30 October 1989

30 October 1989

Index Terms:

Deportation -- legitimate expectation -- appellant sought leave to remain following second marriage and after leave had expired -- no decision given to appellant on that application before deportation order signed -- whether appellant in the events which had happened had a legitimate expectation that he would be advised of decision to refuse leave to remain before deportation order made. Immigration Act 1971 s 3(5)(a): HC 169 (as amended by HC 503) paras 124, 171.

Held:

Appeal from Macpherson J. The appellant was an Indian citizen. He was admitted to the United Kingdom as a visitor. He married a British citizen. He applied for variation of leave. The marriage had broken down. The application was refused. An appeal was withdrawn. The appellant consequently became an overstayer. The Secretary of State decided to initiate deportation proceedings pursuant to s 3(5)(a) of the 1971 Act. An appeal was lodged. The appellant's marriage was dissolved: he married within weeks another British citizen. On the basis of that marriage another application was made for leave to remain. The appeal against the notice of intention to deport was withdrawn. Consideration of the new application for leave was protracted. The appellant and his wife were interviewed. The solicitors continued to press for a decision. However, in the end the appellant was re-interviewed and the deportation order was served on him. No decision on the application for leave to remain was, in terms, communicated to him. Application for judicial review was made. Before the learned judge at first instance it was contended that the Secretary of State had failed to consider all the relevant circumstances before making the deportation order, in particular he had not taken account of the appellant's second marriage. The learned judge found, as a fact, that he had. It was also argued -- and again argued before the Court of Appeal, that on the basis of the letters exchanged between the Home Office and the appellant's solicitors, he had a legitimate expectation that he would be advised of the result of his application for leave before the deportation order was signed, so that he might leave voluntarily. Held: 1. The learned judge was correct to conclude that there was no evidence that the appellant, if advised of the refusal of his application, would have left the country: at the highest there was a possibility that he might have done. 2. Following the settled cases, a legitimate expectation arose where the authorities made a promise of a particular course of conduct to be followed in the future. There was no evidence to suggest that any promise had been given that a period of time would elapse between a refusal of leave and the service of the deportation order. 3. The appellant, in the events which happened, was served simultaneously with the order to deport and refusal of his application for leave. 4. There was nothing to suggest that in that way, he was treated unfairly. He knew that he was at risk of deportation: if he had wished to leave the United Kingdom he could have done so voluntarily at any time.

Cases referred to in the Judgment:

Attorney-General of Hong Kong v NG Yeun Shiu [1983] 2 AC 629: [1983] 2 All ER 346. CSSU v Minister for the Civil Service [1985] AC 374; [1984] 3 All ER 935. R v Secretary of State for the Home Department ex parte Madanjit Singh (unreported, QBD, 28 October 1988).

Counsel:

A Riza for the appellant; P Havers for the respondent PANEL: Purchas, Glidewell, Russell LJJ

Judgment One:

GLIDEWELL LJ: On 28 January 1988 solicitors acting for the present appellant, Madanjit Singh, applied for leave to apply for judicial review. The order they sought was an order of certiorari to quash an order made by the Home Secretary on 6 November 1987 that the applicant be deported from the United Kingdom. They also sought an order of mandamus requiring the Home Secretary to consider the applicant's previous application to be permitted to stay permanently in the United Kingdom. On 3 February 1988 Webster J refused leave. But, on 11 February, on a renewed application, this court granted leave. The full application came before Macpherson J on 28 October 1988 when he refused the application. The appellant now appeals against that decision. The facts which bring the appellant to this court need to be rehearsed because there is a history of some length. The applicant is an Indian citizen and thus subject to immigration control in the United Kingdom. He is now 34 years of age. He arrived in the United Kingdom on 3 August 1983, saying that he was coming as a visitor. He was given leave to enter and to remain for one month, but was prohibited from taking employment. On 24 August an application was made for an extension of that leave, and he was given consent to say here for a further six months, which expired on 3 March 1984. Before that date arrived, on 9 December 1983, the appellant married a young lady who is a British citizen, Samro Kaur, and on 18 January 1984 an application was made to vary his leave to be in this country indefinite leave to remain as the husband of Samro Kaur. Before I continue with the facts, I turn to say something about the relevant law relating to that application. As I have already said, the appellant was subject to immigration control and thus he required leave either to enter or to remain in the United Kingdom. The application of 18 January 1984 was made under section 3 of the Immigration Act 1971. The criteria which were to be applied in relation to that application are to be found laid down in what is now rule 124 of HC 169 as amended by HC 503. That provides: "Where a person with limited leave seeks an extension of stay on the basis of marriage to a person settled here, an extension will not be granted unless the Secretary of State is satisfied: (a) that the marriage was not entered into primarily to obtain settlement here; and (b) tht the parties to the marriage have met; and (c) that the applicant has not remained in breach of the immigration laws; 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 . . .; 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; . . ." There are further requirements, that there should be adequate accommodation for the married couple and that they should be able to maintain themselves while they were here. The immediate effect of the application being made was to extend the leave which Madanjit Singh already had to remain in the United Kingdom to a period which expired 28 days after the Home Secretary's decision on the application. That is the effect of article 3 of the Immigration (Variation of Leave) Order 1976. The Home Secretary considered that application on 6 April 1984. The appellant and Samro Kaur were both inteviewed regarding that application separately. Following that interview, on 22 May 1984, the application to remain as the husband of Samro Kaur was refused. According to the Home Office statement, the two young people at those interviews gave totally different stories. The girl's account was that they never cohabited at all, that he had spent one night at her parents' home and made it quite clear to her that he had married her simply in order to seek to gain consent to stay in this country. Be that as it may, the application was refused. With the refusal the leave to remain in this country was extended until 19 June 1984. The purpose of that was to entitle the applicant to appeal against the decision if he was minded to do so, which he was. An appeal against that decision was entered on 31 May 1984. That appeal was never heard by an adjudicator because Samro Kaur started divorce or it may even have been nullity proceedings against the appellant. On 23 May 1985 that first appeal was withdrawn. I go back to the situation as it then existed. The effect of entering the appeal was that the appellant's leave to remain here was extended while the appeal was pending. Once the appeal was withdrawn, however, that extension automatically came to an end and thereafter the appellant had no leave to remain in the United Kingdom. Indeed, since the withdrawal of that appeal there has been no leave for this man to be in the United Kingdom. The Home Office were intending, had the appeal been heard, to put forward the details of the interviews which they had had with Samro Kaur as the basis for the decision that the requirements of the rules were not satisfied, and in particular that they were not satisfied that the marriage had not been entered into with a view to obtaining leave to remain in the United Kingdom. Thereafter, on 23 October 1985, the Secretary of State made a decision to deport the applicant. Under section 3(5) of the Immigration Act 1971 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 reamin, he does not observe a condition attached to the leave or remains beyond the time limited by the leave. This man, as I have said, had had his leave extended from time to time by virtue of the various processes to which I have referred. But when his appeal was withdrawn, on 23 May 1985, his leave to be in the United Kingdom expired and thereafter he became what is commonly known as an overstayer. Clearly the Secretary of State was empowered to indicate that he had decided to deport the applicant. The procedure requires that in the first place notice of intention to deport shall be communicated to the applicnt so that again an appeal can be lodged against that. That happened in this case. On 29 October 1985 the appellant lodged an appeal against the decision to deport him and that appeal was due to be heard on 30 April 1986. But before that date arrived the appellant's first marriage was dissolved and within a matter of weeks, on 26 March 1986, he married again a lady called Surjit Kaur who is also a British citizen. On 10 April 1986 solicitors acting for the appellant wrote to the Home Office requesting in terms a variation of the appellant's leave to be in the United Kingdom, entitling him to remain here as the husband of Surjit Kaur. Strictly, with respect to them, they were wrong to seek a variation because the appellant had no leave to be varied. But the Home Secretary is empowered to consider applications by those who have no leave to be here nevertheless to remain here, either temporarily or permanently. Technically, that is what he was asked to consider doing in this case and indeed it is what he did consider doing. On 28 April 1986 the second appeal, that is to say the appeal against the deportation order, was withdrawn. There were good reasons for that. The solicitors acting for the appellant recognised that on appeal the issues arising out of the appellant's second marriage would not have been relevant, and all the adjudicator could do was decide whether, on the basis of his overstaying the leave which had expired, there was any ground at all for suggesting that in some way or other he had not overstayed or any other ground on which the appeal might be allowed. Obviously it was decided there was not and so that appeal was withdrawn. So, from that time onwards, that is to say, from 28 April 1986, the position was this. The appellant had no leave to remain in the United Kingdom. The Home Office had indicated six months before that the Home Secretary had decided to make a deportation order. The appeal against the making of the deportation order had been withdrawn, so the order could then be made at any time. If the Home Secretary did consider the application for indefinite leave to remain as the husband of Surjit Kaur, he did so only as a matter of concession. However, that concession was extended to this appellant, because an officer on behalf of the Home Secretary replied to the solicitors for the appellant in a letter of 4 February 1987, upon which Mr Riza relies in the following terms: "Thank you for your letters of 5 August 1985 and 10 April 1986 on behalf of the above named. I am sorry that it has not been possble to send you an earlier reply. Mr Singh's application for indefinite leave to remain is currently under consideration and arrangements are in hand to interview Mr Singh and his wife. I will write to you again in due course". As I indicated during the course of argument, in my view, the Home Secretary was not obliged to give any consideration at all to that application for leave to remain as the husband of Surjit Kaur. But once he did embark on the process of considering it, then he was obliged to consider it properly and fairly. In that letter the officer on his behalf said that indeed he was considering it. The last sentence of that letter was "I will write to you again in due course". Mr Riza submits that that means: "I will write to you again in due course and give you the result of my decision on the application". But, with respect to him, since that immediately follows the sentence saying: ". . . arrangements are in hand to interview Mr Singh and his wife" it is at least equally capable of meaning: "I will write to you again with the arrangements for the interview". There was an interview. We do not have the correspondence in which the interview was arranged, but there must have been some form of communication because this appellant and his second wife were indeed interviewed on 5 March 1987. There is an unfortunate dispute of fact as to what transpired during the course of that interview. The appellant's solicitor speaks Punjabi, as I understand it, and acted as interpreter during the course of the interview, which makes it the more unfortunate that there is this difference of account as to what he said the appellant had said during the course of the interview. So I do not propose to say anything about that because, in the end, it does not seem to matter. After the interview the solicitors for the appellant heard no more from the Home Office for some eight months. It is a matter of regret, as the judge said, that the Home Office did not find it possible to indicate the decision upon the application for leave to remain in this contry during that period of time. The appellant's solicitors wrote during that time some four letters urging the Home Office to give them an answer. In particular, a letter of 12 August 1987 says: "We . . . should be obliged if you would please let us have your decision in this matter of some urgency as our client must know very soon, as to what his position is in this country". I wish to come back to that letter also in a moment. So they were acting entirely properly. They were urging an answer, and it is very regrettable that they did not get one. The fact that they did not get one is really the basis upon which Mr Riza in his able submission erects an argument for this appellant. What happened thereafter was that on 6 November 1987 the deportation order, which had been hanging like the sword of Damocles over Madanjit Singh's neck for about a year, was signed by Mr Douglas Hurd, the then Home Secretary. It rquired Madanjit Singh to leave the United Kingdom and prohibited him from re-entering so long as the order was in force. On 20 November 1987 the appellant was interviewed at the Home Office and he was then served with the deportation order. So it appears that it was not until that date that it came to his notice. There had been no formal notification of the result of the appellant's application for leave to be allowed to remain here permanently as the husband of Surjit Kaur by that date. In an affidavit sworn on behalf of the Home Secretary after these present proceedings started, Miss or Mrs Brenda Hawkyard deposes that before the Home Secretary signed the deportation order he had, on advice, concluded that he should refuse the application for leave to remain indefinitely. Macpherson J, has found as a fact that that is correct. It must, of course, be correct because, quite clearly, the Home Secretary was staying his hand on the deportation order until he had made the decision on the question: "Shall I allow this man to remain as a result of his second marriage?" It follows that the one event, the signing of the deportation order, was consequent upon the decision of the other. But, as I have said, that decision had not been formally communicated to the appellant. Indeed, in terms it was not communicated to the appellant until after these present proceedings were started, when, on 9 February 1988, the Home Office wrote a lengthy letter explaining why the decision to refuse the application for leave to remain here had been taken and, therefore, the deportation order had been made. The basis of Mr Riza's very clear submission is that though he was not entitled to any legal rights in this matter at all, once the Home Secretary embarked on the process of considering the appellant's application for leave to remain as the husband of his second wife, Surjit Kaur, the appellant had a legitimate expection, in two respects. Firstly, that the Home Secretary would consider that application properly and fairly. So far, I entirely agree. But, secondly, Mr Riza submits, the appellant also had a legitimate expectation tha the decision on the application for leave to remain here permanently would be communicated to the applicant some little time before a decision was made on the deportation order. The practical reason, Mr Riza submits, why that time should have been allowed to elapse was to permit the appellant, if he so chose, to leave the United Kingdom voluntarily. If he hd left the United Kingdom voluntarily, then, once he was in the Indian sub-continent, the appellant would have been entitled as soon as he thought fit to apply to an immigration officer for an entry clearance to entitle him to re-enter the United Kingdom as the husband of Surjit Kaur. But, once the deportation order was made, the order itself was an additional obstacle to his re-entry. He could not apply for entry clearance while the deportation order was in force. Moreover, under paragraph 171 of HC 169, save in exceptional circumstances, an application for revocation of a deportation order will not be entertained until the deportation order has been in force for three years. So, submits Mr Riza, what ought to have happened in this case was that the notice should have been given that the application for leave to remain had been refused, so that his client could leave voluntarily and thus not have the additional hurdle of a deportation order erected in his path. There is no evidence at all that this man would have left. The judge found that there was no evidence at all that he would have gone back to India. Indeed, Macpherson J said, at p 8: ". . . The highest that it can be put, and Mr Riza now accepts this, is that his client might have left and thus avoided the deportation order being made to get rid of him". Mr Riza has not quite put it that way before us. He has submitted that in the solicitor's letter of August 1987, which I have read, one of the letters in which the Home Office were being urged to anounce their decision, there is an inference that a reason for the need for a decision was to allow the applicant the chance of leaving voluntarily if he was so minded. With respect to Mr Riza, I do not read that into that letter. Of course he wanted to know what his prospects were of staying here, and that is exactly what the letter says. I do not read it as saying any more than that. But the really critical point is this. Is there a matter of law a legitimate expectation or did this appellant have a legitimate expectation that he would not merely have his application for leave to remain here considered properly and fairly, but that he would then be given time once a decision had been made on that to decide whether to leave before the deportation order was made? I cannot find any such expectation at all or any basis for such an expectation. The cases to which Mr Riza has drawn our attention, notably the GCHQ case and The Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 are cases in which a promise had been made by the relevant authorities of a particular course of conduct to be followed in the future. In this case there is nothing from which one can spell out any promise on behalf of the Home Secretary to allow a period of time to elapse. This appellant could have left voluntarily at any time after he had been given notice of intention to make the deportation order. It was apparent to him that he was at risk of the deportation order being made. In my view, while it is unfortunate that he was not given specific information as to the decision that had been made on his application for leave to remain, if in one letter, or two letters arriving simultaneously he had been informed that his application for leave to remain had been refused, and that the deportation order had that day been signed, there would have been no valid grounds for complaint at all. It follows, in my view, that, when he was served with the deportation order, simultaneously he was being served with that order and he was being informed that his application for leave to remain was being refused. The real question is: Was he being treated unfairly when that happened? In my judgment, the answer to that question is: No, he was not. For those reasons, I would dismiss this appeal.

Judgment Two:

RUSSELL LJ: I agree. I would emphasise, in agreement with my Lord and with Macpherson J, that there is no evidence in the papers to justify the inference -- which Mr Riza suggests there is -- to the effect that this appellant would or might have availed himself of the opportunity to leave the United Kingdom voluntarily before the deportation order was made. Accordingly, like my Lord, I am not persuaded that the appellant was in any realistic sense deprived of the opportunity to leave voluntarily. Nor, for the reasons given by my Lord, Glidewell LJ, do I see that the appellant had any legitimate expectation other than that his application to remain would be dealt with fairly by the Secretary of State. There is nothing to indicate that it was not, and I too would dismiss this appeal.

Judgment Three:

PURCHAS LJ: I agree that this appeal must be dismissed. There is nothing that I wish to add to the judgments already delivered.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Birdy & Co, Treasury Solicitor.