R v. Secretary of State for the Home Department, Ex parte Oladehinde; R v. Secretary of State for the Home Department, Ex parte Alexander

COURT OF APPEAL (CIVIL DIVISION)

 

[1991] 1 AC 254, [1990] 2 All ER 367, [1990] 2 WLR 1195

Hearing Date: 7, 8, 15 March 1990

15 March 1990

Index Terms:

Crown -- Minister -- Statutory powers -- Decision to deport -- Minister devolving statutory power to make decision to immigration inspectors -- Whether devolution lawful -- Whether inspector's decision lawful -- Immigration Act 1971 (c 77), s 3(5)(a) (as substituted by British Nationality Act 1981 (c 61), s 39(6), Sch 4, para 2)

Held:

With effect from August 1988 the Secretary of State for the Home Department authorised certain officials of not less than inspector level serving in the immigration department of the Home Office to act on his behalf in making decisions to deport persons under section 3(5)(a) of the Immigration Act 1971 (Immigration Act 1971, s 3(5), as amended: "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; . . ."), so long as such officials had not been involved with the particular case as immigration officers. Acting on such authorisation two immigration inspectors decided to deport the applicants under section 3(5)(a) of the Act and they accordingly authorised immigration officers to serve on the applicants the appropriate notices of intention to deport. Each applicant appealed to an adjudicator and on subsequent appeals to the Immigration Appeal Tribunal the decisions made by the inspectors were upheld. In proceedings by way of judicial review the applicants sought, inter alia, an order of certiorari to quash the inspectors' decisions on the grounds, inter alia, that the Secretary of State's devolution of his power to make decisions under section 3(5)(a) was unlawful. The Divisional Court concluded that the Act of 1971 had created immigration officers as holding a distinct and separate office, with expressly different functions, namely entry control, from those of the Secretary of State whose powers related to the right to remain and to deportation, and that in consequence it was contrary to the policy of the Act of 1971 to authorise immigration inspectors to make the decisions to deport on his behalf. The Divisional Court accordingly granted the applications and quashed the inspectors' decisions. On the hearing of the appeal further evidence was adduced on behalf of the Secretary of State as to the appointment of officials to the immigration service. On appeal by the Secretary of State:- Held, allowing the appeals and dismissing the applications for judicial review, that having regard to the further evidence, immigration officers were Home Office civil servants, appointed under standard letters of appointment on whom certain discrete powers and duties were conferred, rather than holders of a distinct and independent office; that since it was a recognised constitutional principle that the Secretary of State might authorise officials within his department to exercise his powers on his behalf and since his authorisation had not been of immigration officers as such but was confined to a small group of Home Office civil servants with managerial and other duties within the immigration service provided they had no involvement as immigration officers with the particular case, the Secretary of State's devolution of his authority to act under section 3(5)(a) was not impermissible; and that, accordingly, the decisions made on his behalf to deport the applicants were lawful. Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, CA applied. Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, HL(E) considered. Per curiam. The effect of section 5(1) of the Immigration Act 1988 is that someone served with notice of intention to deport under section 3(5) of the Act of 1971 has a right of appeal to the adjudicator limited to a consideration of whether he had more than only a limited right to remain, and if not, has remained beyond the time limited by the leave or has not observed a condition attached to a limited leave to enter or remain. Accordingly, apart from cases within that limited right of appeal, the only remedy lies in seeking leave to apply for judicial review of the decision to deport. There should not be delay in making any such application while mounting an abortive appeal. Reg v Secretary of State for the Home Department, Ex parte Malhi [1990] 2 WLR 932, CA considered. Decision of the Divisional Court of the Queen's Bench Division, post, p 1198H et seq, reversed.

Cases referred to in the Judgment:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680, CA. Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, CA. Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997; [1968] 2 WLR 924; [1968] 1 All ER 694, HL(E) Reg v Secretary of State for the Home Department, Ex parte Malhi [1990] 2 WLR 932, CA.

Cases cited in the Judgment:

Commissioners of Customs and Excise v Cure & Deeley Ltd [1962] 1 QB 340; [1961] 3 WLR 798; [1961] 3 All ER 641

Introduction:

APPEALS from the Divisional Court of the Queen's Bench Division. The Secretary of State appealed from the decision of the Divisional Court (Woolf LJ and Pill J) given on 21 February 1990 in respect of the applications made by Shamusideen Aranji Oladehinde and Julius Cornell Alexander on the grounds (1) that the Divisional Court erred in law in concluding that Parliament had impliedly stated in the Immigration Act 1971 that a decision to deport could not be taken on behalf of the Secretary of State by an immigration inspector; (2) that the Divisional Court erred in law in failing to conclude that (i) the Act of 1971 specifically provided for those cases where decisions had to be taken personally by the Secretary of State, that (ii) in all other cases the Act of 1971 envisaged that by operation the Carltona Doctrine (Carltona Ltd v Commissioners of Works [1943] 2 All ER 560), it was open to the Secretary of State to authorise officials in his department to take decisions on his behalf. The Carltona doctrine applied to important, as well as to less important, decisions, that (iii) the Secretary of State had so authorised immigration inspectors, that (iv) immigration inspectors, and other immigration officers, served in the Home Office, that (v) the fact that Parliament had imposed certain functions on immigration officers under the Act of 1971 did not imply that Parliament intended that the immigration inspector, as a member of the responsible department, could not take other decisions on behalf of the Secretary of State if so authorised by the Secretary of State, that (vi) there was no conflict between the exercise by immigration inspectors of their specific functions under the Act of 1971 and the taking by them of the decisions to deport when authorised so to do by the Secretary of State; (3) that the Divisional Court erred in applying the doctrine in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, which was concerned with the use of discretionary powers of a substantive nature for a purpose envisaged by Parliament. That doctrine was not concerned with the application of the Carltona doctrine. In any event there was no basis for concluding that the decision to deport must not be taken on behalf of the Secretary of State by an immigration officer, far less by an immigration officer such as an inspector who had managerial responsibilities. By a respondent's notice dated 6 March 1990 the applicant, Mr Oladehinde, sought that the decision of the Divisional Court should be affirmed on the additional grounds (1) that, if contrary to the applicant's principal submission, an immigration inspector could exercise the Secretary of State's powers to make a decision to deport, then on the facts of the case the decision to deport the applicant was taken by an immigration officer, not an inspector who merely gave telephone authorisation for the earlier decision, alternatively the manner on which the inspector took his decision to deport was unfair having regard to (a) the fact that it was taken on the telephone without personal perusal of the files, interview notes and other documents, (b) no record was kept of the decision or the reasons, (c) particular caution in coming to such a decision should be taken where the inspector was aware that the applicant would not be able to appeal against the exercise of discretion to an independent authority; (2) that the Immigration Appeal Tribunal had jurisdiction to determine who took the decision to deport and whether the decision was taken by the Secretary of State, within their jurisdiction under section 15(1) of the Immigration Act 1971, as amended by section 5(1) of the Immigration Act 1988. The notice of intention to deport stated that the decision was taken by the Secretary of State and if the contrary was true there would have been no decision to deport and therefore no power in law to proceed to make a deportation order; (3) that contrary to the decision of the Court of Appeal in Reg v Secretary of State for the Home Department, Ex parte Malhi [1990] 2 WLR 932 the immigration appellate authorities had power to consider matters relating to the fairness of the decision to deport as determined by the adjudicator in the present case. By a respondent's notice dated 6 March 1990 the applicant, Mr Alexander, sought that the decision of the Divisional Court be affirmed on the additional grounds that (1) if contrary to his main submission the immigration inspector could exercise the Secretary of State's powers to make a decision to deport, the decision in the applicant's case was taken by an immigration officer not by an inspector who merely gave telephone authorisation for the earlier decision. Alternatively (2) that the manner in which the inspector took his decision to deport was unfair having regard to (a) the fact that it was taken on the telephone without personal perusal of the files, the interview notes and other documents, (b) it failed to have regard to inconsistencies in the immigration officer's records and the absence of any opportunity for the applicant to make observations, (c) no record was kept of the decision or the reasons, (d) the particular caution which should be taken in coming to such a decision where the inspector was aware that the applicant would not be able to appeal against the exercise of discretion to an independent authority; (3) that there was power in the Immigration Appeal Tribunal to determine who took the decision and whether the decision was taken by the Secretary of State within their limited powers as restricted by section 5 of the Immigration Act 1988 because the notice of intention to deport stated that the decision was taken by the Secretary of State because he was satisfied as to certain matters, and if the contrary were true there would be no power in law for the decision to be taken. On the hearing of the appeal the Secretary of State, at the invitation of the court and without opposition from the applicants, adduced further evidence as to the appointment of persons to the immigration service. The applicants did not address argument to the court on the issue of fairness or on the correctness of the decision in Malhi's case, although they reserved the right to do so on the hearing of any further appeal. The facts are stated in the judgment of the court.

Counsel:

John Laws and David Pannick for the Secretary of State; Ian MacDonald QC and Richard Scannell for the applicant, Mr Oladehinde; Nicholas Blake for the applicant, Mr Alexander.

Judgment-READ:

Cur adv vult 15 March. The following judgment of the court was handed down. PANEL: Lord Donaldson of Lymington MR, Stocker and Mann LJJ

Judgment One:

LORD DONALDSON OF LYMINGTON MR. On 21 February 1990 Woolf LJ and Pill J, sitting as a Divisional Court of the Queen's Bench Division, judicially reviewed and ordered the quashing of decisions to serve notices of intention to deport the applicants. The Secretary of State now appeals. The principle issue in the appeal is whether, as the Divisional Court held, the Secretary of State was not entitled to authorise two immigration inspectors (Mr Barrell in the case of Mr Oladehinde and Mr McCormack in the case of Mr Alexander) to act on the Secretary of State's behalf in reaching a decision whether or not to deport. It would more accurately be described as a "provisional" decision to deport, since the case has to be, and is, reconsidered at ministerial level before any deportation order is signed. This issue is of very considerable constitutional importance, involving as it does the application of what is known as the "Carltona principle" (Carltona Ltd v Commissioners of Works [1943] 2 All ER 560) and, on the view taken by the Divisional Court, the "Padfield approach" to statutory construction: see Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. A resolution of it is urgently required because there are a large number of other cases in which decisions to deport have been taken by immigration inspectors purporting to act on behalf of the Secretary of State and those concerned need and are entitled to know where they stand at the earliest possible moment. These two appeals have therefore been expedited. The Secretary of State's decision to authorise particular immigration officers at not less than the level of inspector to exercise his powers to issue a notice of intention to deport, to issue a restriction order, to detain and to authorise supervised departure was announced in the House of Commons in a written answer by the Minister of State (Mr Renton) on 20 December 1988, the authorisation having taken effect from 1 August 1988. We are told that there are at present 52 inspectors, but that only 14 of them have been given authority to authorise the issue of notices of intention to deport, they being officers of considerable seniority and the equivalent of senior executive officers in other branches and departments. This is the grade which has always taken such decisions albeit that prior to August 1988 none were immigration officers. Mr Barrell, who reached the crucial decision in Mr Oladehinde's case, had 24 years' experience and Mr McCormack, who was concerned with Mr Alexander, had 22 years' experience. The Divisional Court's decision Pill J, who enjoyed the inestimable advantage of giving a supporting judgment and so was free of the necessity for stating the facts and examining the rival arguments in detail, summarised the position as he saw it in the following words: "The effect of the Carltona principle (Carltona Ltd v Commissioners of Works [1943] 2 All ER 540) is that, where powers are given to a Secretary of State in a statute, an implication normally arises that they can be exercised under his authority by responsible officials of his department. The rationale is set out by Lord Greene MR, in the Carltona case, at p 563. That implication will not always arise. It will not arise for example when the statute expressly provides that a Secretary of State shall take a decision personally or if it expressly defines the category or categories of official who may take the decision on his behalf. It will also not arise where it is clear from the wording and context of the statute that Parliament's intention in a particular case was that it would not arise or would not arise with respect to a particular category of officials in the department. Immigration officers are given specific powers by the Immigration Act 1971. The Secretary of State is given other and separate powers. The dichotomy is expressed for example in section 4(1) of the Act which deals with "Administration of Control," and provides, in so far as is material: 'The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State . . ." Woolf LJ in his judgment has considered the Act and Regulations in detail and I agree that Parliament did not intend the relevant powers given to the Secretary of State with respect to deportation to be exercised on his behalf by members of the immigration service." Whether or not that is right as a matter of law is what this appeal is really all about. Woolf LJ, in a judgment of outstanding clarity, held that giving immigration inspectors authority to exercise this power on behalf of the Secretary of State conflicted with the policy and objects of the Act of 1971 and so was unlawful on Padfield grounds. Mr Laws submits that the Padfield decision relates to the exercise of a statutory discretion and is not relevant to the present problem, which concerns the constitutionality of a devolution of authority. It is certainly true that the decision in Padfield was reached in a different context, but it would be a mistake to approach the judicial review jurisdiction as if it consisted of a series of entirely separate boxes into which judges dipped as occasion demanded. It is rather a rich tapestry of many strands, which cross, re-cross and blend to produce justice. Thus it would be unlawful, unconstitutional, irrational, Wednesbury unreasonable (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) or plain wrong -- the label really does not matter -- to use the constitutional power to devolve the Secretary of State's decision making authority to a point or level which ran counter to the legislature's intentions in a particular field of government. The six considerations set out in the judgment of Woolf LJ are thus highly relevant and to these we now turn. We hope that in summarising them we do not detract from their force. 1. The status of the applicants and the consequences of deportation Neither of the applicants was refused entry to this country or entered illegally. Both are being dealt with under section 3(5)(a) of the Act of 1971, Mr Oladehinde on the footing that he was in breach of a condition restricing employment and Mr Alexander on the footing that he was an overstayer. As such, they are entitled to greater consideration than an illegal entrant or one who has been refused entry. The consequences of being deported are very serious in that deportation may be regarded as a stigma which could affect their ability to travel to other countries. This fact is recognised by the Home Office to the extent that the final decision to deport, signified by the signature of a deportation order, is normally undertaken by the Secretary of State personally and, if this is not possible, is undertaken by a minister. A corresponding degree of importance should attach to the preliminary step of forming an intention to deport. 2. The structure of the Act of 1971 Woolf LJ examined the provisions of the Act in detail including, in particular, section 4(1) to which Pill J referred and concluded, rightly, that there was a clear distinction of function between immigration officers, who were concerned with entry into the United Kingdom, and the Secretary of State who was concerned with the right to remain here. The applicants are asserting a right to remain, not to enter. We would only add that the dichotomy is not without exceptions: see section 24(2) (poweer of arrest for breach of condition or overstaying); Schedule 2 paragraph 13(2)B (similar situations in relation to crew); Schedule 2, paragraph 29(1) and (2) (bail pending appeals) and Schedule 3, paragraphs 5(1) and 7 (powers of courts pending deportation). 3. The application of the Carltona principle It may be convenient at this point to cite the passage from the judgment of Lord Greene MR [1943] 2 All ER 560, 563, which enshrines and explains the Carltona principle: "In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them." Lord Greene MR contemplated that in devolving authority to take decisions on his behalf, the Secretary of State would only be answerable to Parliament, but it is conceded that, at least in recent times, such a course of action would also be susceptible to judicial review in an appropriate case, the only issue being whether this is such a case. Woolf LJ held that the Carltona principle should be regarded "as an implication which is read into a statute in the absence of any clear contrary indication by Parliament that the implication is not to apply." In this we think that he must be mistaken, because it applies equally where the minister's powers are derived otherwise than from a statute: eg from prerogative powers. We think that the better view is that this is a common law constitutional power, but one which is capable of being negatived or confined by express statutory provisions, as has been achieved in sections 13(5), 14(3) and 15(4) of the Act by the use of the words "and not by a person acting under his authority" or by clearly necessary implication. However, so far as implication is concerned, we would expect any challenge to be mounted upon the possibly broader basis that the decision to devolve authority was Wednesbury unreasonable with, if appropriate, a submission that it involved a contravention of the rules of natural justice or of fairness. Thus we have no doubt that the courts would strike down a decision to authorise a prison governor to deal, on behalf of the Secretary of State, with petitions by prisoners complaining of the conduct of that governor. We hasten to add that no such decision has ever been taken. Consistently with his approach, we think that the present decision needs to be reviewed with the possibility of Wednesbury irrationality clearly in mind. 4. The independent status of immigration officers Paragraph 1 of Schedule 2 to the Act of 1971 provides: "(1) Immigration officers for the purpose of this Act shall be appointed by the Secretary of State, and he may arrange with the Commissioners of Customs and Excise for the employment of officers of customs and excise as immigration officers under this Act." Woolf LJ commented: "Unlike his ordinary officials, immigration officers by paragraph 1(3) of Schedule 2 are required by an express provision to 'act in accordance with such instructions . . . as may be given them by the Secretary of State.' Parliament has presumably included this provision because it recognised that an immigration officer holds a distinct office, as does a prison officer and constable under the Crown, and so there would be doubt as to the Secretary of State's powers to give instructions to immigration officers if there was not this provision. In addition immigration officers are given some powers which would normally only be given to a constable, such as a power of arrest: see paragraph 33 of Schedule 2." On the hearing of this appeal we thought it right to admit further evidence on this aspect. From this it appears that all civil servants working in and for the Home Office, including those who are appointed as immigration officers under the Act of 1971, do so under and pursuant to standard letters of appointment of which we have seen a specimen. The true view would therefore appear to be that immigration officers who are Home Office civil servants and customs and excise officers who are employed as immigration officers have certain discrete powers and duties conferred upon them by the Act of 1971, including the duty of acting "in accordance with such instructions . . . as may be given them by the Secretary of State." Where the two groups differ is that the Home Office immigration officers are in a class to which the Carltona doctrine might apply vis-a-vis the Secretary of State, but the customs and excise officers are not. We think that the explanation for the inclusion of paragraph 1(3) of Schedule 2 is two-fold. First, there might be doubt as to the extent to which the Secretary of State could give instructions to customs and excise officers employed as immigration officers since they are not part of the Home Office establishment. Second, and more important, there would otherwise be considerable doubt as to the extent to which the Secretary of State could give instructions to Home Office immigration officers concerning the way in which they should exercise the special powers and duties conferred and imposed upon them by statute. This is not, however, a recognition that an immigration officer holds a distinct and independent office -- merely that in occupying a particular Home Office, or customs and excise, post, he has speical statutory powers and duties. In a sense this aspect is irrelevant to the Carltona principle, because it only applies to enable an officer to act on behalf of the minister in performing the minister's functions. A direction to an immigration officer as such could not, by definition, relate to a minister's functions. 5. The immigration rules Woolf LJ drew attention to the fact that these mirrored the distinction between the separate roles of immigration officers and of the Secretary of State under the Act of 1971. 6. The practical implications of the decision to deport being taken by the immigration service on behalf of the Secretary of State The gravamen of this part of Woolf LJ's judgment is that the Secretary of State, under the guise of a Carltona devolution of a decision making authority, has blurred the line between deportation, which Parliament clearly intended to be the responsibility of the Secretary of State, and entry control, which was clearly intended to be the responsibility of immigration officers. It is certainly true that the Home Office and Home Office ministers have not used language which was as precise as it might have been. Thus both Mr Renton in his Parliamentary answer in the House of Commons on 20 December 1988 and Mr Mawer, the Principal Private Secretary to the Secretary of State, responding to a request for information from the Immigration Appeal Tribunal, spoke of "delegation" of powers, although it is quite clear that what they were describing was authority to act on behalf of the Secretary of State. This is something different from delegation. The civil servant concerned acts not as the delegate, but as the alter ego of the Secretary of State. "Devolution" might be a better word. Furthermore, there is some imprecision in Mr Renton's reference to the power "to issue a notice of intention to deport" and in a similar reference in Mr McQueen's affidavit. There are in fact three stages in the deportation process: namely, (a) a (provisional) decision to deport, (b) the issue of a notification that this decision has been taken and (c) the signature and issue of a deportation order. There has never been the slightest doubt that immigration officers were entitled to issue the notice of a decision to deport and it was in fact done in these cases by the immigration officers and not by the immigration inspectors. The decision which precedes the issue of the notice is quite another matter and it was to this that Mr Renton and Mr McQueen were quite clearly intending to refer. We have given particular thought to this aspect of the matter, because, quite apart from any implied limitations upon the Carltona principle which may be thought to be inherent in the Act of 1971, we have little doubt that it would be Wednesbury unreasonable to devolve authority to make a (provisional) decision to deport to an immigration officer, who had been involved as such in the investigation of the case concerned. But that has not happened. The Secretary of State has carefully confined his purported devolution of authority to act on his behalf to a small group of Home Office civil servants who have managerial and other duties in, and in relation to, the immigration service and has denied them authority so to act if they have been in any way involved in the case as immigration officers. Woolf LJ's conclusion Woolf LJ said: "In the end the case comes down to the question of what was the intention of Parliament? Was it the intention of Parliament that the power to take the important decision to deport could be taken by immigration inspectors on behalf of the Secretary of State in the manner which I have indicated these decisions were taken? In my judgment only one conclusion is possible, that parliament did not and would not have intended the decisions to be taken by the immigration officers who have been given expressly by that Act completely different functions, those functions being the functions which they had performed in general terms prior to the introduction of the new regime under the Immigration Act 1971." Our conclusion We would always hesitate to differ from Woolf LJ in a matter such as this in which he has such vast expertise and experience, but in the end we do so without doubt. If he had included the words "as such," so that his conclusion read "Parliament did not and would not have intended the decision to be taken by immigration officers as such," we would have found ourselves in complete agreement with him. Whether we would have upheld his decision upon the grounds that Parliament had impliedly limited the Carltona principle in this context or upon grounds of Wednesbury unresonableness, we need not pause to consider. It would have been on one or other or both grounds. But given the fact, which is not in issue, that there is no objection to a Carltona devolution of authority to a Home Office civil servant of senior executive officer or equivalent grade (that being the grade of immigration inspectors), in the context of a decision to deport, as contrasted with the making of a deportation order, we cannot see that it is impermissible so to do, if the civil servant concerned is, in a sense, a part time immigration officer, having duties both as such and as a manager of immigration officers, so long as his involvement with the case is not and never has been as an immigration officer. "Members of the immigration service at not less than inspector level" and "a senior member of [the Secretary of State's] staff in the immigration service" do not necessarily connote an immigration officer acting as such and the authority in fact conferred has not been upon any immigration officer acting as such. It can be, and in context is, merely descriptive of particular Home Office officials. There are clear advantages and no unfairness in the (provisional) decision to deport, which does not of itself affect the status of the immigrant but which gives him a right of appeal, albeit of a very limited nature, being taken by civil servants who are readily available and have considerable experience and expertise in immigration matters. The operative decision, in the form of a deportation order, comes later and is a personal decision by a minister. For these reasons we would allow the Secretary of State's appeal and dismiss both applications for judicial review. The jurisdiction of the Immigration Appeal Tribunal Both applicants in fact appealed to an adjudictor, who allowed Mr Oladehinde's appeal on the grounds that the Secretary of State had not acted fairly and dismissed that of Mr Alexander. There were further appeals to the tribunal, which allowed that of the Secretary of State in the case of Mr Oladehinde and dismissed that of Mr Alexander. On the view which we take of these applications these decisions are irrelevant, but Mr Pannick below and Mr Laws in this court urged us to draw attention to the very limited right of appeal which appears to exist in the light of the decision of this court in Reg v Secretary of State for the Home Department, Ex parte Malhi [1990] 2 WLR 932. Mr Ian MacDonald, appearing for the applicants, sought to distinguish this decision, but we are quite unconvinced by his arguments. He also sought to reserve his right to challenge its correctness elsewhere and that he is clearly entitled to do. However, as things stand, the effect of section 5(1) of the Immigration Act 1988, is that someone who is served with notice of intention to deport pursuant to section 3(5) of the Act of 1971 has a right of appeal to the adjudicator limited to a consideration of whether he had more than only a limited right to remain and, if not, has remained beyond the time limited by the leave or has not observed a condition attached to a limited leave to enter or remain. In these circumstances all those concerned with immigration matters should be made aware that, apart from cases which fall within this limited right of appeal, their only remedy lies in seeking leave to apply for judicial review of the decision to deport. In particular they should not delay in making any such application whilst they mount an abortive appeal and, if they do so, they may find that leave is refused upon the grounds that they have unreasonably delayed in applying.

DISPOSITION:

Appeals allowed. No order for costs save legal aid taxation. Conditional leave to appeal. Restriction order on Mr Alexander reimposed.

SOLICITORS:

Treasury Solicitor; Lewis Silkin; Joint Council for the Welfare of Immigrants.

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