Hussain and Another v. Immigration Appeal Tribunal, Secretary of State for the Home Department

Court of Appeal (Civil Division)

[1991] Imm AR 413

Hearing Date: 19 April 1991

19 April 1991

Index Terms:

Legitimate expectation -- deportation -- applicant admitted to United Kingdom in 1979 -- refused further leave as student 1984 -- overstayer -- Secretary of State initiated deportation proceedings in 1987 -- appeals lodged and dismissed -- whether by date of judicial review proceedings applicant had a legitimate expectation, in the light of Ministerial Statement, that he would not be deported. Immigration Act 1971 (unamended) s 3(5)(a): HC 169 paras 148, 156.

Held:

Renewed application for judicial review of Secretary of State's decision to deport the appellants as overstayers and dismissal of appeals by appellate authorities. The first appellant had been granted leave to enter in 1979 and subsequent variations of leave as a student. He has been unsuccessful in his studies and five years after his arrival was refused further leave to remain. He did not leave the United Kingdom and in 1987 the Secretary of State decided to initiate deportation proceedings, pursuant to section 3(5)(a) of the 1971 Act. An appeal was dismissed by an adjudicator: the Tribunal refused leave to appeal. An application for judicial review was dismissed: the application was renewed in the Court of Appeal. It was argued that both the Secretary of State and the appellate authorities had failed to take fully into account all the relevant circumstances. It was also contended that in the light of the Ministerial Statement of 1987, the applicant had a legitimate expectation that he would not be deported. Held: 1. On the facts it could nt be argued that the decisions of the Secretary of State or the appellate authorities were Wednesbury unreasonable. 2. For half the period that the first appellant had been resident in the United Kingdom, he had been subject to a notice of deportation and in those circumstances no legitimate expectation could arise.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department and Immigration Appeal Tribunal ex parte Mohammed Hussain and anr (unreported QBD, 3 September, 1990).

Counsel:

AM Azhar for the appellants; R Jay for the respondents PANEL: Fox, Russell, Farquharson LJJ

Judgment One:

FARQUHARSON LJ: This is a renewed application for judicial review of two decisions of the Immigration Appeal Tribunal dates 27 January 1989 and 31 January 1990. There is also an application for an order of mandamus to issue directing the Secretary of State to revoke a deportation order made against the applicants on 19 April 1989. Previously leave to move was refused, both on consideration of the papers and at an oral hearing before Otton J. The two applicants who are husband and wife come from Bangladesh. In 1978 Mr Hussain (to whom I shall refer as the first applicant) applied for entry into this country as he wished to study at Birmingham University on a post-graduate course concerning plant resources. His application was met by a decision of the immigration officer to refuse entry. He appealed against that refusal and his appeal was allowed. The reason why entry had been refused was because the authorities were not satisfied that he intended to return to Bangladesh after completion of his post-graduate studies. In the light however of his successful appeal, his first applicant entered the United Kingdom on 12 May 1979, where he attended university, but having obtained an extension of his leave to complete his studies, he failed his examinations. In view of that failure, in 1980 the first applicant requested permission to remain in the United Kingdom so that he could study accountancy. He was granted a work permit enabling him to do so, and with successive grants he was permitted to stay until the end of 1984. In 1983 he had visited Bangladesh and on 8 March he returned with his wife, the second applicant, who was granted leave to enter to be with her husband. However, again his attempts to pass the accountancy examinations failed so that in November 1984 he was refused leave to remain, and both he and his wife were directed to leave the United Kingdom by the middle of December 1984. They did not so do, and in May 1985 the immigration authorities again directed that they leave the country. Once again they did not. Nearly two years later, on 14 February 1987, the first applicant was served with a notice signifying the Secretary of State's decision to deport him. He appealed against the notice, but his appeal was dismissed. Mr Azhar, counsel for the applicants, has addressed the court concerning that hearing which was before an adjudicator, and he complains that the adjudicator did not go into sufficient depth concerning the mitigating circumstances which were put before him; nor did he relate that mitigation to such considerations as he is enjoined to do by paragraph 156 of the House of Commons Paper No 169. For my part, I consider that this submission is not justified; admittedly there does not appear to be great detail given by the adjudicator in that respect, but it is right to bear in mind, as Mr Azhar recognises, that in fact the first applicant did not appear before the adjudicator to put his case, but did so in writing. In those circumstances, the adjudicator dismissed the appeal. A subsequent application for leave to appeal to the Immigration Appeal Tribunal was refused on 27 January 1989. That is the first of the decisions which are the subject of the present application. It is evident from this chronology that the first applicant had overstayed for a period of some five years from the decision to deport. The deportation order was made on 19 April 1989. In the following month the order was served on both applicants, but neither left the country. The second applicant mounted an appeal, limited to the decision to which country she should be deported. Her application to the Immigration Appeal Tribunal for leave to appeal was dismissed on 31 January 1990. That is the second decision which is the subject of this application before the court. It is not without significance that during 1987, after the notice of intention to deport had been served on the first applicant, he had purchased a house. The basis upon which the Secretary of State and the adjudicator founded these decisions was that the first applicant had come to this country for the purpose of studying, and after remaining here for several years had been totally unsuccessful in pursuit of those studies. Meanwhile, bearing in mind that there had been a long period of residence in this country, he was able to advance compelling reasons for suggesting, on the grounds of humanity, that he should not be deported. A letter had been sent to the applicants' Member of Parliament, setting out, in detail, those grounds, which were placed before the Secretary of State. It is convenient at this stage to mention some of them: 1 it was said (as indeed was the case) that the applicants had had a long period of uninterrupted residence in this country; 2 that they both led proper and respectable lives; 3 that they had become totally integrated into the British community; 4 both had been active in helping those from the same ethnic group by community service and instruction, which was recognised in various documents made available to the Secretary of State. They point to the welfare of their children, one of whom is in the middle of his education. The fact that they had purchased a house was brought to the attention of the Secretary of State, that the conditions in their home were excellent, and that the first applicant had a good work record. For my part I find those grounds to be strong ones but as has been pointed out during the course of argument it is not the task of this court to indulge in the balancing exercise, which the Secretary of State is called upon to do. He has to look at the whole of the case, particularly with regard to the first applicant's failure to pass his examinations, and then consider the mitigating factors to which I have referred. Taking all those factors into account, the decision is then for him to make whether the order should issue. Provided he has reached his decision lawfully, as he has, there is no power vested in this court to intervene -- however sympathetic our views may be to the applicants in this case. I reject the grounds put forward by the first applicant that the Tribunal and Otton J failed to consider all the relevant facts. It is plain that these were put before Otton J in great detail. There was a second point advanced on behalf of the first applicant in the skeleton argument helpfully submitted to the court which it was claimed there had been a legitimate expectation on the first applicant's part that he would be allowed to remain in this country because of his ten years continuous residence. Reference was made to a statement by the Home Secretary in the House of Commons in 1987 in answer to a Parliamentary Question on 5 November that year*, that, prima facie, persons who had been continuously resident in this country for a term of ten years whether lawfully or unlawfully, might be permitted to remain here. But it should be remembered that for half of the period during which the first applicant had been resident in this country he had been subject to a notice of deportation, so that any question of legitimate expectation could not arise. For those reasons for my part I would refuse the applications.

Judgment Two:

RUSSELL LJ: I agree.

Judgment Three:

FOX LJ: I also agree.

DISPOSITION:

Applications dismissed

SOLICITORS:

Hafiz & Co; Treasury Solicitor

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