Menn v. Secretary of State for the Home Department
- Author: Court of Appeal (Civil Division)
- Document source:
-
Date:
20 December 1991
MENN v SECRETARY OF STATE FOR THE HOME DEPARTMENT
Court of Appeal (Civil Division)
[1992] Imm AR 245
Hearing Date: 20 December 1991
20 December 1991
Index Terms:
Deportation -- Conducive to the public good -- son of Commonwealth citizen settled in United Kingdom on 1 January 1973 -- appellant born in 1963 -- deportation order signed November 1990 -- whether the appellant still enjoyed the protection from deportation embodied in the 1971 Act, which provision had been repealed by the 1988 Act. Commonwealth Immigrants Act 1962 s 2(2): Immigration Appeals Act 1969 s 16: Immigration Act 1971 ss 1(4), 1(5), 3(5)(b), 5(1), 5(4): Interpretation Act 1978 s 16: Immigration Act 1988 s 1.
Held:
Renewed application to move for judicial review, following refusal by Kennedy J. The applicant was a citizen of Nigeria against whom the Secretary of State had signed a deportation order: the applicant had been convicted of a serious criminal offence and his appeal against the Secretary of State's intention to deport had been dismissed by the Immigration Appeal Tribunal. He applied for judicial review on the ground that in law the Secretary of State had no power to deport him. Counsel argued that he continued to enjoy the protection of section 1(5) of the 1971 Act, albeit that had been repealed by the 1988 Act. He was the child of a Commonwealth citizen who himself had been settled in the United Kingdom on 1 January 1973. The repeal of the section in 1988 had extinguished that protection in the 1971 Act only for those who were born after its repeal. He relied on section 16 of the Interpretation Act 1978. Held 1. At the date of the deportation order the applicant, aged 28, could not properly be described as a child. Accordingly and following the line of reasoning in Ruhul and Huseyin, he fell outwith the protection of s 1(5) of the 1971 Act, irrespective of the provisions of the 1988 Act or the Interpretation Act 1978. 2. It was therefore unnecessary to decide the application by resolving the question whether or not, before the 1988 Act repealed section 1(5) of the 1971 Act, the applicant had secured any right or privilege that could be preserved by operation of the Interpretation Act 1978. The court was inclined to the view that he had not.Cases referred to in the Judgment:
Immigration Appeal Tribunal v Haque, Rahman & Ruhul [1987] Imm AR 587: [1987] 3 All ER 705. Secretary of State for the Home Department v Zalihe Huseyin [1988] Imm AR 129. R v Secretary of State for the Home Department ex parte Paul Menn (unreported, QBD, 31 October 1991).Counsel:
A Riza QC for the appellant; Miss A Foster for the respondent PANEL: Neill, Leggatt LJJ, Sir Roger OrmrodJudgment One:
LEGGATT LJ: The applicant, one of whose names is Paul Menn, renews his application for leave to move for judicial review following refusal of such an application by Kennedy J on 31 October 1991. The review sought was to challenge the intended removal of the applicant from the United Kingdom under a deportation order which he submits is ultra vires. The applicant is now 28 years old, having been born in Nigeria on 10 October 1963. In 1970 his father registered as a citizen of the United Kingdom and Colonies, and on 12 October 1976 the applicant was given indefinite leave to enter in order to join his father. Between 1980 and 1984 he was convicted in this country of various minor offences. When on 16 January 1985 he sought leave to enter as a returning resident at a time when there was a warrant for his arrest outstanding for obtaining goods by deception, he was given notice to submit to further examination. On 10 January 1986 the applicant was convicted at Southwark Crown Court for conspiracy to handle stolen goods and sentenced to two years' imprisonment. On 20 February 1986 the applicant was refused leave to enter the United Kingdom. But on 20 May 1986 he married, and later that year he went back to Nigeria. In 1987 the applicant returned to the United Kingdom, and in due course applied to be registered as a British citizen. Before that application had been dealt with, the applicant was arrested in February 1988 for possession of heroin with intent to supply. On 10 July 1988 the Immigration Act 1988 came into force. On 14 October 1988 the applicant was convicted of the offence for which he had been arrested and sentenced to five years' imprisonment. On 28 July 1989 the applicant was served with notice of decision to make a deportation order against which he appealed to the Immigration Appeal Tribunal, but on 18 April 1990 that appeal was dismissed. On 7 November 1990 the deportation order was signed, and in June of the following year his application for British citizenship was refused. No doubt because his earliest date of release was 29 October 1991, the applicant attempted to prevent the deportation order from taking effect by applying for the leave to move for judicial review which was refused by Kennedy J. He does not challenge the grounds on which the deportation order was made, if there was power to make it. The applicant now argues that: (1) In relation to children of Commonwealth citizens settled here on 1 January 1973 who were born before the Immigration Act 1988 came into force on 1 August 1988, the protection afforded by section 1(5) of the Immigration Act 1971 was preserved by section 16 of the Interpretation Act 1978; and (2) The nature and extent of that protection was such as to give those children immunity from deportation under section 3(5)(b) of the 1971 Act. Remarking that if the applicant's submissions about the effect of the repeal of section 1(5) of the 1971 Act were right, the whole purpose of the repeal of that subsection would be defeated, the judge held that the applicant could not take advantage of the provisions of section 16 of the 1978 Act to diminish the effect of section 1 of the 1988 Act. The first relevant statutory provision relating to children was contained in the Commonwealth Immigrants Act 1962 section 2. After referring in subsection (1) to refusal of admission and conditional admission of any Commonwealth citizen, subsection (2) provided as follows: "(2) The power to refuse admission or admit subject to conditions under this section shall not be exercised, except as provided by subsection (5), in the case of any person who satisfies an immigration officer that he or she: (a) is ordinarily resident in the United Kingdom or was so resident at any time within the past two years; or (b) is the wife, or a child under sixteen years of age, of a Commonwealth citizen who is resident in the United Kingdom or of a Commonwealth citizen (not being a person who is on that occasion refused admission into the United Kingdom) with whom she or he enters or seeks to enter the United Kingdom." The Immigration Appeals Act 1969 section 16 gave to the Secretary of State power to deport Commonwealth citizens for breach of conditions of admission. On 1 January 1973 the 1971 Act was brought into force. So far as material it provided by section 1 that: "(4) The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom. (5) The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed." Section 3(5) (as amended) provided that "(a) a person who is not [a British citizen] shall be liable to deportation from the United Kingdom . . . (b) if the Secretary of State deems his deportation to be conducive to the public good . . .". The only other provisions to which for present purposes it is necessary to refer are subsections (1) and (4) of section 5 of the 1971 Act: "(1) 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; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.. . .
"(4) 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 eighteen; and (b) where that other person is a woman, her children under the age of eighteen . . .". With the side-note "Termination of saving in respect of Commonwealth citizens settled before 1973" section 1 of the 1988 Act provided simply that "Section 1(5) of the Immigration Act 1971 . . . is hereby repealed". Finally, section 16 of the 1978 Act provided (so far as material) that "where an Act repeals an enactment, the repeal does not, unless the contrary intention appears . . . affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment . . .". For the appellant the first issue advanced by Mr Riza QC is intended to raise the question whether Commonwealth citizens settled here on 1 January 1973 (and their children born before 10 July 1988) can claim to have acquired a right or privilege not to be deported on the ground that their deportation is deemed by the Secretary of State to be conducive to the public good. In aid of the argument that in relation to deportation the applicant was entitled to be and remain in no worse position after the repeal of section 1(5) of the 1971 Act than he had been before the Act came into force Mr Riza cites R v Immigration Appeal Tribunal ex parte Ruhul [1987] 3 All ER 705. He also relies on Secretary of State for the Home Department v Zalihe Huseyin [1988] Imm AR 129 in which this court held that the respondent was protected by the provisions of section 1(5) of the 1971 Act, because as the wife of a Commonwealth citizen, himself settled in the United Kingdom on 1 January 1973, she could not be deported, even though her marriage was one of convenience. Mr Riza submits that the clear purpose of repealing section 1(5) of the 1971 Act was to prevent the future wives and children of Commonwealth citizens settled in the United Kingdom on 1 January 1973 from benefiting from its provisions. He further submits that meanwhile it is arguable that children such as are the subject of his first issue are entitled to the same immunity from deportation (derived from section 2(2) and 6(2) of the 1962 Act) as are Commonwealth citizens themselves. According to Mr Riza's argument that immunity constitutes a privilege acquired before 1 January 1973 which by virtue of section 16 of the 1978 Act cannot be taken away by the repeal of section 1(5) of the 1971 Act. To that argument Miss Foster responds by submitting quite simply that all that the applicant had was the inchoate right not to be deported on "conducive" grounds should the Secretary of State desire so to deport him. The circumstances giving rise to the decision to deport, namely, the conviction on 14 October 1988, occurred after the coming into force of the 1988 Act on 10 July 1988. She contends that the applicant therefore enjoyed under section 1(5) of the 1971 Act no such privilege from deportation as following its repeal was capable of being preserved by section 16 of the 1978 Act. I should be inclined to accept Miss Foster's argument, and to hold that the appellant had not acquired any right or privilege not to be deported on "conducive" grounds, being a right or privilege which could be preserved by section 16 of the 1978 Act. By way of corollary it seems to me difficult to say that the applicant had acquired before 10 July 1988 any right or privilege in the way of freedom to come into the United Kingdom, since the Secretary of State had not before that date had any occasion to exercise or purport to exercise any power to prohibit him from entering the United Kingdom. I should therefore be disposed to hold that the applicant's argument on the first issue fails, but it is not necessary to decide this application on that ground. If the applicant did have anything in the nature of a privilege from deportation, the intention to affect it by removing it may be thought implicit in the repeal of section 1(5) of the 1971 Act. Rules designed to protect Commonwealth citizens from deportation when they were exempt from it except in limited circumstances cannot be expected to continue to avail them when the mandatory obligation to include such protection in the rules has been removed by repeal. Thus the side-note to section 1 of the 1988 Act says (though it cannot influence the proper construction of the section) that it concerns "Termination of saving in respect of Commonwealth citizens settled before 1973". To make good his application Mr Riza would have to succeed on his second issue as well as his first. He relies on the case of Zalihe Huseyin (supra) in support of the submission that in relation to deportation under section 3(5)(b) of the 1971 Act of children of relevant Commonwealth citizens, the protection given is the same as that given to the relevant Commonwealth citizen himself, and is not only available so long as such children remain minors. Miss Foster argues that at the date of the conviction giving rise to the decision to deport him the applicant had no right under section 1(5) of the 1971 Act because he was neither a Commonwealth citizen nor the wife of one, and because at the age of 24 he did not qualify as the child of a Commonwealth citizen settled here under the terms of section 1(5) of the 1971 Act. She submits that this is consonant with the intention of the legislature to protect the dependants of Commonwealth citizens manifested by section 1(4) of the Act as well as by rules made by the Secretary of State. In my judgment, even if the applicant succeeded on the first issue, he would fail on the second. The power to refuse admission could not be exercised before the 1971 Act came into force in the case of (a) a Commonwealth citizen ordinarily resident in the United Kingdom or resident here within the past two years, and (b) the wife or the child under 16 years of age of such a Commonwealth citizen. Other children could be refused admission. In ex parte Ruhul (supra) the court said at page 708J: "It is, however, to be noted that children over the age of 16 of Commonwealth citizens resident in the United Kingdom were not as such given any such statutory right [to receive leave to enter the United Kingdom] because they did not fall within s 2(2)(b) [of the 1962 Act]. The 1962 Act placed no specific fetters on the powers of immigration officers to refuse admission to such persons." At page 715B the court added that: ". . . s1(5) [of the 1971 Act] indisputably imposed a mandatory obligation on the Secretary of State, in framing rules under the 1971 Act, to include in them appropriate provisions to reflect the previous statutory rights conferred by s 2(2)(b) and (2A) of the 1962 Act, (as amended), on those categories of wives and children of Commonwealth citizens settled in this country, which were set out in those subsections. Wives and children falling within those categories were, indeed, 'free to come into' this country before the passing of the 1971 Act because, by virtue of the two last-mentioned subsections, they had a statutory right to be given leave to enter. Any new rules had to reflect these entrenched statutory rights. However, persons in the position of the applicants, that is to say sons over the age of 18, but under 21, of Commonwealth citizens settled in this country, even before the 1971 Act became law, were not, in our judgment, free to come into this country on any ordinary meaning of words. They had to obtain leave to enter and had no right to be given leave. All they possessed was a right to have their applications for leave to enter fairly and properly considered in accordance with the Secretary of State's instructions to immigration officers from time to time in force. The Secretary of State could at any time have altered the directions relating to Commonwealth children over the age of 16 . . . as he did in fact do . . .". Similarly, it seems to me that by virtue of Zalihe Huseyin's case (supra) in order to benefit by section 1(5) of the 1971 Act as a child of a Commonwealth citizen, the person concerned would have to be under the age of 16 at the material date. This conclusion is consistent with the fact that, unless further qualified, the word "child" ordinarily denotes a minor. It follows from these decisions that the applicant cannot invoke that provision because at the date when he needed to do so, namely, when the conviction occurred which gave rise to the decision to deport, he was no longer a child under 16 (or 18) years of age. I would therefore dismiss the application for leave to apply for judicial review.Judgment Two:
SIR ROGER ORMROD: I agree.Judgment Three:
NEILL LJ: I also agree.DISPOSITION:
Application dismissedSOLICITORS:
Pascalides, Pillai & Jones, London WC1; Treasury SolicitorDisclaimer: Crown Copyright
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