Ayo v. Immigration Appeal Tribunal

AYO v IMMIGRATION APPEAL TRIBUNAL

Court of Appeal (CIVIL DIVISION)

[1990] Imm AR 461

Hearing Date: 7 February 1990

7 February 1990

Index Terms:

Deportation -- conducive to the public good -- limited function of the courts on judicial review -- whether the hearing before the Tribunal had been unfair -- Tribunal received as evidence judge's summing-up in criminal trial when that tendered by applicant's representative -- decision to initiate deportation proceedings taken over four years before -- obligation on Secretary of State to review the decision in the light of current circumstances. Immigration Act 1971 ss 3(5)(b), 15(7)(a): HC 169 paras 156, 159.

Judicial review -- immigration cases -- the need for such cases to be heard promptly.

Held:

Appeal from Pill J. The appellant was a citizen of Nigeria who had been convicted of serious criminal offences. In consequences, the Secretary of State decided to initiate deportation proceedings against him pursuant to s 3(5)(b) of the Immigration Act 1971. An appeal to the Tribunal was dismissed. The appellant had been convicted on 1 February 1984: his appeal to the Tribunal had been dismissed in November 1985. He had applied for judicial review of that dismissal. His application had been dismissed by Pill J on 26 April 1988. The appellant argued before the Court of Appeal, as he had argued below, that the Tribunal had erred in receiving as evidence the summing-up by the judge in the criminal trial: the Tribunal had moreover misunderstood the evidence before it. He also sought to raise the merits of his case. Held: 1. It was clear from the papers that the Tribunal had not misunderstood the evidence. 2. The judge's summing-up had been tendered to the Tribunal by the appellant's experienced representative, and the Tribunal's receiving it in evidence could not be faulted. 3. The court was not concerned with the merits of the decision, only with whether or not it had been lawfully reached. 4. Per the Master of the Rolls, immigration cases for the judicial review should be brought on more quickly. 5. Per, the Master of the Rolls, obiter, four-and-a-half years had now passed since the decision to deport the appellant had been taken: it would be Wednesbury unreasonable if the Secretary of State did not review that decision in the light of current circumstances.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Bashiru Adebola Ayo (unreported, QBD, 26 April 1988).

Counsel:

The appellant in person; GR Sankey for the respondent PANEL: Lord Donaldson MR, Staughton, Farquharson LJJ

Judgment One:

FARQUHARSON LJ: This appellant, who is now 37 years of age, was given leave to enter this country on 15 September 1978 as a visitor for a period of six months. In December of that year he married a British citizen and on 1 August 1980 he was granted indefinite leave to remain. The couple had two children, the first born in 1980 and the second in 1988. It is apparent that the appellant studied hard at a number of different educational establishments, where he was awarded qualifications in engineering. As a result, he had a number of well-paid jobs. This success story was, however, severly blemished by the fact that on 14 February 1984 he was convicted at the Central Criminal Court on five counts of rape and was sentenced to a term of two years' imprisonment, of which nine months was suspended. The appellant was detained in prison for a period of eight months before being released on parole. As he submitted to us this morning, one of the criteria which is considered before releasing a prisoner on parole is whether he still constitutes a threat to the community and it is implicit in the grant of parole that he no longer does create such a threat. The appellant also makes the point that, having regard to the length of the sentence, the learned judge who passed it must have regarded these offences of rape as at the less serious end of the spectrum. Following these convictions and by reason of them, the Secretary of State decided to make an order of deportation against the appellant on the ground that it was conducive to the public good pursuant to section 3(5)(b) of the Immigration Act 1971. The appellant was given notice of the Secretary of State's decision by letter dated 13 May 1985. Where a decision is taken to make a deportation order on these grounds, the deportee has a right of appeal to the Immigration Appeal Tribunal by virtue of section 15(7)(a) of the same Act. The appellant exercised this right and his appeal was heard on 15 November 1985. Before the hearing the appellant wrote a long letter to the Tribunal dated 28 October 1985. In dealing with his conviction, which he claimed was wrong, he explained that, after the birth of their first child in 1980, his wife went through a difficult period when she withdrew from sexual relations with him. After 18 months the appellant said that he was forced to indulge in outside sexual intercourse and this was the reason why he became the subject of the rape charges, notwithstanding his previous good record. The appellant claimed that the women involved were all prostitutes and the many of the things they said about him were untrue. The appellant went on to describe the difficult situation which by then obtained in Nigeria. If he was deported, his wife and son might be forced to live in a strange country where there was a great deal of violence and lawlessness or, alternatively, he would have to leave them in Europe. He drew attention to his own good character apart from the convictions, and to the fact that he and his wife lived in the house which they had purchased in Chislehurst. He listed, for the benefit of the Tribunal, his academic qualifications and training which, as already noted, were considerable. Both the appellant and his wife gave evidence to the Tribunal in which they expanded on their domestic life together. The grounds relied upon by the appellant in support of his appeal to the Tribunal were that the Secretary of State should exercise his discretion differently. In making his decision, the Secretary of State acts on the provisions of rules 159 and 156 of the House of Commons Paper 169, which are as follows. "159. The Secretary of State has the power to deport a person if he deems it conducive to the public good. General rules about the circumstances in which deportation is justified on these grounds cannot be laid down, and each case will be considered carefully in the light of the relevant circumstances known to the Secretary of State including those listed in paragraph 156." One then turns to paragraph 156, which is in these terms: "156. In considering whether to give effect to a recommendation for deportation made by a court on conviction the Secretary of State will take into account every relevant factor known to him, including: age; length of residence in the United Kingdom; strength of connections with the United Kingdom; personal history, including character, conduct and employment record; domestic circumstances; the nature of the offence of which the person was convicted; previous criminal record; compassionate circumstances; any representations received on the person's behalf." Having considered all those factors, the Secretary of State then in his discretion has to decide whether he will make a deportation order. On appeal the Tribunal has to go through a similar balancing exercise in the light of the factors set out in paragraph 156. It is evident from the summary of the contents of the appellant's letter to the Tribunal which I have already given that the Tribunal were fully apprised of all the relevant circumstances. The Tribunal concluded that the deportation was the right course on the merits and dismissed the appeal. The appellant then sought leave to move for judicial review of the Tribunal's decision. Form 86A is not available to us in the papers, so the grounds of his application only appear in the judgment of Pill J, who heard the motion on 25 and 26 April 1988. Briefly, the grounds upon which the appellant attacked the Tribunal's decision were, first, that the Tribunal was given a copy of the judge's summing up at the appellant's trial and that he had no opportunity to comment upon it or, indeed, any matter that the Tribunal considered relevant. As the learned judge pointed out, the appellant was represented by a man experienced in immigration matters, who had handed the transcript in when the Tribunal inquired about any observations the trial judge may have made. In any case, the Tribunal had investigated the full circumstances of the convictions during the hearing before it. The second matter was that the Tribunal had misunderstood the wife's evidence concerning her willingness to accompany her husband to Nigeria if he was deported. The learned judge examined the notes of evidence taken by the Vice-President of the Tribunal and concluded that there was no basis for that criticism. In the relevant extract from the Tribunal's findings this is recorded: "[Mrs Ayo] said that she and the appellant are a happily married couple and that he was a perfect father to their son. She has a good job as a secretary here. If her husband had to go to Nigeria she would go with him but she did not wish to do so. It was a different way of life. She had never visited another country. Public transport there was almost non-existent and she could not drive. She doubted whether she could get employment there." It was submitted to Pill J and, indeed, it has been submitted by Mr Ayo to us this morning that the Tribunal must have misunderstood what she was saying. Her point was that in no circumstances could she go to Nigeria because of the difficulties in that country, but that she would accompany her husband to any other country in Europe if it were possible for him to go there rather than to Africa. The learned judge, as I say, had examined the notes of evidence but, in any case, such a misunderstanding as is thrown up by that distinction would not, in my judgment, have made any conceivable difference to the conclusion which the Tribunal arrived at. The third criticism of the Tribunal's findings was that they had been under the mistaken impression that the trial judge had recommended that the appellant should be deported, when in fact he had not done so. This mistake, if any, was on the part of the appellant, who was, perhaps understandably, confused by the inter-relationship of paragraphs 156 and 159 of the House of Commons Paper No 169. It is true that paragraph 156 deals with the case where a court has recommended deportation but, as I hope was made clear by my reference to the text of the two paragraphs, when considering deportation on the grounds that the deportee's presence in this country was not conducive to the public good, the paper requires the Secretary of State to have regard to the same criteria. In fact, of course, the appellant's conviction was a matter that was very much in the forefront of the Secretary of State's mind. The judge, having reviewed all these matters, concluded that the hearing before the Tribunal was not in any way unfair and refused the motion. The appellant now appeals to this court against the order of Pill J on the grounds that the juge failed to consider the appellant's submission in full. He also appeals on the basis of a document which he has included amongst the papers submitted to this court. That document contains an extended version of the various matters which he dealt with in his letter to the Tribunal on 20 October 1985. The appellant again deals with his domestic circumstances, his work record, the dangers of living in Nigeria and the prejudice to his family if he were to be deported. The appellant does not understand, I fear, the function of this court in these proceedings, nor that of Pill J when he entertained the motion in the High Court. We are not concerned whether the Tribunal's decision was right or wrong on the facts, any more than we are concerned with the Secretary of State's decision being right or wrong on the facts. This court is only concerned as to whether those decisions -- in the instant case that of the Tribunal -- were lawfully arrived at. The Tribunal has to consider whether it has been demonstrated that the Secretary of State, in arriving at his decision to deport, did so in a manner that cannot be supported on the evidence, and this court, in appropriate circumstances, can only review the Secretary of State's decision in the sense of deciding whether any reasonable person in his position could have arrived at a conclusion to deport. In cases involving the question whether the presence of the person concerned is conducive to the public good, the circumstances in which the Secretary of State's decision can be reviewed must be very restricted. In the present case it is clear that no complaint can be sustained against the manner in which the Tribunal arrived at its decision to dismiss the appeal. On the material before him, in my judgment, Pill J rightly and inevitably dismissed the appellant's motion and, for my part, I would dismiss this appeal.

Judgment Two:

STAUGHTON LJ: I agree. As Farquharson LJ has said, the law is, for good or ill, that we do not make up our minds whether we would have ordered deportation. We have only to decide whether the decision of the Immigration Appeal Tribunal to uphold the deportation order was one which could lawfully be made in the exercise of their discretion. I, too, would dismiss this appeal.

Judgment Three:

THE MASTER OF THE ROLLS: I agree with both the judgments which have been given and that the appeal must be dismissed. As we made clear during the hearing by Mr Sankey, who is appearing on behalf of the Immigration Appeal Tribunal, the Secretary of State will now have to review the deportation order and will, of course, take account of events which have occurred -- and, in particular, perhaps, events which have not occurred such as any further criminal offences by Mr Ayo since the deportation order was made. He has to review the deportation order in order to decide whether to give effect to it or not. I do not wish to be misunderstood in any way. I am not expressing any view as to whether the Secretary of State should give effect to the deportation order or not. All I am doing is recording that it is agreed that the Secretary of State is under an obligation to review the matter in the light of current circumstances, including the birth of the second child and, no doubt, the lapse of time. Of course, Mr Ayo is free to, and should, if he wishes, write urgently to the Secretary of State or to the Home Office setting out any matters which he wishes to be taken into account. But that is not a matter for us. I merely mention it in order that Mr Ayo may know what the position is. THE MASTER OF THE ROLLS: Mr Sankey, is that a correct statement of the position? MR SANKEY: My Lord, that is correct. THE MASTER OF THE ROLLS: I am obliged. Mr Sankey, just as a matter of interest, why has there been so much delay? MR SANKEY: My Lord, this matter was before the Court of Appeal on 10 April of last year and an adjournment was sought for obtaining legal aid. Nothing happened thereafter. One was waiting to hear whether the applicant had legal aid. In August my instructing solicitor wrote to Mr Ayo, got a reply saying he was still waiting for legal aid. Nothing further was heard and so, eventually, towards the end of the year, those instructing me, I think, asked my clerk to fix it because nothing was happening. THE MASTER OF THE ROLLS: I think that these immigration cases need to be brought on much more quickly. There is, as I have said before, a screening process within the Court of Appeal in the sense that they are marked as priority cases, and the office do try and follow them up. It will be easier if and when we have lawyers on the staff (other than the Registrar) who will be able to watch these cases but, if I might respectfully suggest to the Home Office Immigration Department, the court would appreciate it if they would bring it to our attention if there is any delay in bringing the appeal on. For instance, in this particular case, no doubt the Registrar could have got in touch with the legal aid authorities and found out what the position was. No doubt you can pass that back. MR SANKEY: My Lord, certainly I will. As to your Lordship's statement, which I agreed with, I query whether in fact the Secretary of State is actually under an obligation as such to re-consider the deportation order. I accept that, as a matter of practice, he always does but, in terms of obligation, I am unable to point to any particular statutory provision. THE MASTER OF THE ROLLS: There is no statutory provision. Obviously it is not for us to decide it. But I make no secret of the fact that, in my view, it would be Wednesbury unreasonable, where four and a half years has elapsed, not to review the order in current circumstances. MR SANKEY: I can certainly say that, as a matter of practice, as I understand it, they are always reviewed. So there is no problem here. My Lord, so far as the appeal is concerned, I ask for it to be dismissed and I also ask for costs.

DISPOSITION:

Appeal dismissed with costs. Leave to appeal to the House of Lords refused

SOLICITORS:

Treasury Solicitor