Kaya v. Secretary of State for the Home Department

KAYA v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1992] Imm AR 591

Hearing Date: 22 July 1992

22 July 1992

Index Terms:

Deportation -- overstayer -- entry into United Kingdom through the Republic of Ireland -- no notice in writing to applicant of the time-limit imposed by the 1972 Order on permitted stay in the United Kingdom -- whether applicant was an overstayer -- whether the provisions of the 1972 Order had direct applicability. Immigration Act 1971 (as amendeo) ss 3(5)(a), 4(1), 9(3): Immigration (Control of Entry through Republic of Ireland) Order 1972 (as amended) art 4.

Held:

Renewed application for leave to move for judicial review: the application had been refused by Owen J. The applicant was a citizen of Turkey against whom the Secretary of State had decided to initiate deportation proceedings pursuant to s 3(5)(a) of the 1971 Act (as amended). He had concluded that the applicant was an overstayer. The applicant had arrived in the Republic of Ireland on 26 August 1988: on 29 August 1988 he travelled to the United Kingdom. Under the provisions of the 1972 Order (as amended), he was allowed to remain in the United Kingdom for not more than three months. He remained for much longer. On entry to the United Kingdom the applicant had not been given notice in writing of the period he was permitted to remain. Counsel argued that in consequence the Secretary of State did not have power in law to deport the applicant. He also tentatively suggested that the 1972 Order was ultra vires. Held 1. Under s 9(3) of the 1971 Act restrictions contained in the 1972 Order were made applicable to the applicant as if they had been given to him by notice in writing. 2. There was no requirement for such a notice in writing in relation to the time-limit imposed by the 1972 Order. 3. There was no substance in the suggestion that the 1972 Order was ultra vires.

Cases referred to in the Judgment:

Tahir Kaya v Secretary of State for the Home Department [1991] Imm AR 572. R v Secretary of State for the Home Department ex parte Tahir Kaya (unreported, QBD, 9 March 1992).

Counsel:

A Riza QC for the applicant; M Shaw for the respondent PANEL: Neill, Ralph Gibson, Steyn LJJ

Judgment One:

STYN LJ: This is a renewed application for leave to apply for judicial review. The appellant seeks leave to challenge a deportation order made on 22 November 1991. The applicant is a Turkish citizen. He arrived in the Republic of Ireland on 26 August 1988. Three days later he travelled to the United Kingdom. He has stated in an affidavit that he was not given any notice in writing as contemplated by section 4(1) of the Immigration Act 1971. A question of law is involved, namely whether the statutory power to deport was applicable in this case. The procedural history is as follows. The first deportation order was made on 15 May 1990. That was challenged on the ground that it was ultra vires. The matter came before an adjudicator. He dismissed the challenge on 29 September 1990. The Tribunal granted leave to appeal, and on 12 June 1991 the Tribunal dismissed the appeal. On 9 March 1992 Owen J refused an application for leave to apply for judicial review. Now we are asked to examine afresh the legitimacy of the order of deportation in the light of the relevant statutory provisions. The matter can be taken quite shortly. It is clear that the Immigration (Control of Entry through the Republic of Ireland) Order 1972 (as amended) is applicable to this applicant. Pursuant to that order the period for which he was allowed to remain was "not more than three months from the date on which he entered the United Kingdom." That restriction was directly applicable without further ado and without notice in writing. The power to deport is to be found in section 3(5)(a) which reads as follows: "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." It is necessary in this case also to refer to section 9(3), which reads as follows: "Any provision of this Act applying to a limited leave or to conditions attached to a limited leave shall, unless otherwise provided, have effect in relation to a person subject to any restriction or condition by virtue of an order under subsection (2) above as if the provisions of the order applicable to him were terms on which he had been given leave under this Act to enter the United Kingdom." In my judgment it is clear that section 9(3) was intended to deal with a case where by an order under section 9(2) restrictions or conditions on leave were made directly applicable without notice in writing as contemplated by section 4(1). One is here dealing with just such an order which imposed a restriction on an applicant not to remain longer than three months. Section 9(3) covers "any provision applying to limited leave". That includes section 3(5)(a) which makes provision for deportation. Section 9(3) has operative effect "as if the provisions of the order applicable to him were terms on which he had been given leave under this Act to enter the United Kingdom." In other words, in relation to the present case it means that the order and relevant restriction apply as if the applicant had been given notice in writing that he may not remain longer than three months. It follows that the applicant can be deported under section 3(5)(a). Subject to one qualification, this simple construction is the answer to all the submissions made to us. Counsel tentatively submitted that the order in question may also be ultra vires. In my view no coherent argument in support of this submission was put forward. I do not propose to dignify this submission with any further consideration. I would dismiss the application as unarguable. Finally, I would add that at the commencement of the application counsel for the applicant told us that it had come to his notice that the applicant may have been refused leave to enter the United Kingdom before he entered in August 1988. Paradoxically, he said, that may mean that he is not liable to deportation. Another route may have to be followed. Counsel did not add that that would open up new opportunities for delay. We refused to consider matters which were not before us. But I would add that, if the applicant should hereafter attempt to rely on what he had failed to disclose in his affidavit, any subsequent application will no doubt be struck out as an abuse of the process of the court.

Judgment Two:

RALPH GIBSON LJ: I agree.

Judgment Three:

NEILL LJ: I also agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Turkan and Co; Treasury Solicitor