Patel v. Secretary of State for the Home Department

PATEL v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1993] Imm AR 392

Hearing Date: 17 February 1993

17 February 1993

Index Terms:

Deportation -- overstayer -- British Overseas citizen -- husband and children in India -- admission of applicant to India dependent on her applying for and securing a visa -- refusal by applicant to apply for visa -- whether therefore the Secretary of State could have "reason to believe" the applicant would be admitted to India -- whether there was a policy on which the applicant could rely under which British Overseas citizens in her circumstances were not deported. Immigration Act 1971 (as amended) s 3(5)(a), sch 3 para 1(1)(a), 1(1)(b).

Judicial review -- discretionary remedy -- whether in the events which had happened the applicant would have merited that discretion being exercised in her favour.

Held:

Renewed application for leave to move for judicial review following refusal by Schiemann J. The applicant was a British Overseas citizen: she was married to an Indian national: her husband and her children lived in India. She was admitted to the United Kingdom as a visitor: she became an overstayer. The Secretary of State decided to deport her, pursuant to s 3(5)(a) of the 1971 Act. He proposed to issue removal directions to India, which he described as "a country to which there is reason to believe you will be admitted". The admission of the applicant to India would depend on her obtaining a visa: in view of her family it was not anticipated that there would be any difficulty in her securing a visa. The applicant however, not wishing to go to India, refused to apply to the Indian authorities for a visa. Counsel argued that in those circumstances the Secretary of State could not have "reason to believe" that the applicant would be admitted to India, as was required under schedule 3, paragraph 1(1)(b) of the 1971 Act. Counsel also maintained that that sub-paragraph 1(1)(b) had to be read subject to sub- paragraph 1(1)(a). It was also asserted that there had been established a policy under which British Overseas citizens who overstayed, were not deported: the applicant was entitled to be treated no less favourably than other British Overseas citizens who had become overstayers. Held 1. Sub-paragraph 1(1)(b) of schedule 3 to the 1971 Act was not to be read subject to sub-paragraph 1(1)(a): the disjunctive "or" between the sub- paragraphs showed that was not the case. 2. Counsel had relied on Khawaja to suggest that the court would not only require the Secretary of State to have "reason to believe" but be certain that the applicant would be admitted to India. That submission had no merit because "the fact that words cannot be implied if they are not present" cannot lead to a conclusion "that they should be disregarded if they are present". 3. To require the applicant to apply for a visa and thus comply with an immigration formality did not in any way prevent the Secretary of State from reasonably believing that the applicant would be granted a visa and thus be admitted to India. 4. The evidence before the court did not indicate that there was any policy or practice from which the applicant could benefit. The cases to which reference had been made, related to persons who had been lawfully in the United Kingdom for at least four years. 5. The learned judge at first instance had been right to conclude that in any event the conduct of the applicant in declining to apply for a visa was such that she would not merit benefiting from the discretionary remedy of judicial review.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Department [1984] AC 74; [1982] Imm AR 139. R v Secretary of State for the Home Department ex parte Pushpaben Kiritbhai Patel [1993] Imm AR 257.

Counsel:

R de Mello for the applicant; M Shaw for the respondent PANEL: Balcombe, Kennedy, Evans LJJ

Judgment One:

EVANS LJ: Mrs Pushpaben Kiritbhai Patel renews her application for leave to seek judicial review of a decision by the Secretary of State for the Home Department following its refusal by Schiemann J after an oral hearing on 30 November 1992. The decision in question was dated 3 June 1992, and appears at page 43 of the bundle. It was a decision to make a deportation order pursuant to the Immigration Acts 1971 and 1988. Such a decision was made pursuant to section 3(5) of the 1971 Immigration Act: "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." The notice of that decision included the following phrase: "He proposes to give directions for your removal to India, the country of which you are a national or which most recently provided you with a travel document." There has been an appeal against that decision under the statutory procedures, but that appeal is without prejudice to the existing application for leave to seek judicial review, and it is not contested that this court has jurisdiction to give such leave if so advised. Following the lodging of the appeal there was a letter from the immigration service headquarters, dated 4 August 1992, addressed to Mr Ruparell of the Joint Council for the Welfare of Immigrants, acting in this respect on behalf of Mrs Patel. That letter gave notice that the notice of the intention to deport was incorrectly recorded. It said: ". . . although the decision remains unchanged, the notice should be amended as follows:

'. . . He proposes to give directions for your removal to India, a country to which there is reason to believe that you will be admitted.'"That wording reflects the statutory provision in schedule 3 to the Immigration Act 1971, a provision which refers back to section 5 of the Act. The wording of schedule 3, paragraph 1(1) is as follows:

"Where a deportation order is in force against any person, the Secretary of State may give directions for his removal to a country or territory specified in the directions being either -- (a) a country of which he is a national or citizen; or (b) a country or territory to which there is reason to believe that he will be admitted." The present application is supported by an affidavit from Mrs Patel sworn on 3 September 1992. She gives the history of these proceedings, which may be summarised from the grounds upon which relief is sought. She is a British Overseas citizen. She was born, it appears, in Uganda from where she proceeded to India. She is married to a Indian citizen. There are three children of the family, all of whom are still resident in India, presumably with their father. On 17 May 1988 she came to the United Kingdom as a visitor. She was given a United Kingdom passport which declares her status as a British Overseas citizen. The passport was issued on 24 March 1988. She came to the United Kingdom on that occasion because her father, who lives in this country, had suffered a stroke. She has remained here since because, as well as her father's illness, her mother too is unwell and for the whole of the intervening period she has cared for them, living with them in this country. I should say straightaway that her reason for resisting the deportation order is that she wishes on compassionate grounds to remain in this country so that she can continue to care for her elderly and sick parents. On the other hand, the evidence shows that she has a sister and a brother, both of them married and both resident in this country. It shows also that she, by seeking to stay here, is by definition seeking to avoid returning to India where she would in fact be reunited with her husband and her three children. When the three-month period elapsed -- it began on 17 May 1988 -- she sought an extension of that period. The extension was refused. She lodged an appeal, and the appeal was dismissed. Her solicitors then submitted an application on her behalf for her to remain as a United Kingdom passport-holder, and that application in turn was refused. She appealed to the Immigration Appeal Tribunal, and that too was unsuccessful. It came about therefore that on 18 April 1991 the Home Office wrote to her asking her to leave the United Kingdom immediately, warning that if she failed to comply she would be faced with prosecution and be liable to be deported. In fact, thereafter there was correspondence between her Member of Parliament and the Home Office, seeking to have her case treated as exceptional and for her to have permission to remain on that ground. But on 18 February 1992 the Parliamentary Under Secretary of State replied to the Member of Parliament refusing the request and reiterating the point that the applicant would be liable to deportation proceedings if she did not leave the United Kingdom. That chronology therefore led, perhaps inevitably, to the decision on 3 June 1992 in respect of which this application is made. The grounds for the application as it came before Schiemann J, and as are set out in the papers before us, were able to be dealt with by him under what were essentially two heads. The first relates to the question whether this was a case where, to quote the wording of schedule 3 to the Immigration Act, the Secretary of State could have reason to believe that the applicant would be admitted to India. There is evidence, to which I shall have to refer in a moment, as to the attitude of the Indian immigration authorities. The feature of this case which ultimately is crucial to the present application is that the Indian authorities appear to require the applicant to seek a visa as a pre-condition to her re-entry to India and she is unwilling to make that application. Therefore, to put the matter in a nutshell, Mr de Mello submits that this is not a case where the Secretary of State can reasonably believe that the applicant will be admitted to India. The second aspect with which Schiemann J dealt was under the heading of "policy". The application is made on the basis of grounds developed by Mr de Mello in his submissions this morning, which are to the effect that there is evidence of what may be called "a policy" which has been adopted by the Home Office in relation to the deportation of holders of a United Kingdom passport who are British Overseas citizens, as the applicant is. What is said to be "the policy" is that no such deportation orders will be made in such cases, at least when certain conditions are fulfilled. Mr de Mello relies also upon evidence which establishes, he submits, a practice or something approaching a practice which is consistent with that policy and which is of itself sufficient to demonstrate that persons such as the applicant have not in fact been deported. He says, therefore, that she is entitled to a consistency of treatment with those other cases in so far as they are known. Schiemann J having considered both those points, said in relation to what I will call the visa point that the submission was wrong. He put his decision on the basis, first, that there was no evidence before the court as to what the practice of the Indian government would be in circumstances such as those postulated by the applicant. He said, secondly, that in any event the grant of leave is a matter for the discretion of the court, and (I summarise) he said that in a case where the attitude is as with this lady not to seek a visa, that is something which would incline the court not to grant leave. As regards the policy aspect, he said at page 5D of his judgment that there was no such policy established by the evidence nor were there grounds which would entitle the applicant to say that she had an legitimate expectation that she would be allowed remain here. He then referred to the circumstances of the case, and said: "These are matters for the Secretary of State and I do not regard this case as indicating any arguable point of law and, in those circumstances, I refuse leave." Today's renewal of the application is supported by a substantial further affidavit from Miss Mavis Gladys Herron, a solicitor employed by the Joint Council for the Welfare of Immigrants which is supported by a large number of documents. The affidavit deals first with the policy matter, and I shall read at this stage part of paragraph 5: "British Overseas citizens without a right of re-admission to the United Kingdom are subject to immigration control. However under the Secretary of State's established policy which we have seen applied over many years, where a British Overseas citizen has been given limited leave to remain in the United Kingdom and later decided to remain, the Secretary of State has considered representations on behalf of those individuals and has in cases in which JCWI has had conduct, granted leave to remain in the United Kingdom, exceptionally, to those persons for 12 months at a time. We are also aware that it is established policy that after a period of four to five years, and in some cases less, the Secretary of State has granted settlement to these persons following representations made on their behalf by JCWI. In its 25 years of existence the JCWI has never come across a case where the Secretary of State has deported a British Overseas citizen client." Those are on the face of them manifestly substantial grounds for making an application such as the present. But the affidavit continues by referring to two specific cases in respect of which details are given in the exhibits to the affidavit, and we are able to see from other material, either exhibited to the affidavit or before the court, the extent to which the applicant is in fact able to support those assertions of what may be called either "a policy" or "a practice" or a mixture of both. I will return to those matters shortly. I propose, like Schiemann J, to deal with this application under the two heads which as I have already indicated may be called "the visa aspect" and "the policy aspect". With regard to the former, Mr de Mello takes two points as a matter of law on the construction of paragraph 1 of schedule 3 to the 1971 Act, which I have already read. He says, first (and I am sure he will forgive me if I do no more than mention this submission in passing), that the requirements of paragraph 1(1)(b) -- ie "a country or territory to which there is reason to believe that he will be admitted" -- should be read subject to sub-paragraph (a), "a country of which he is a national or citizen". That submission seems in my judgment to disregard entirely the fact that (a) and (b) are linked by the word "or", and it is manifest that (b) stands as a separate ground upon which the Secretary of State may act in an appropriate case. The second submission was to this effect. He submitted by reference to Khawaja [1984] AC 74, and in particular to the speech of Lord Fraser of Tullybelton at page 97D that the paragraph requires the court to be satisfied not merely that it is a case where the Secretary of State might properly have reason to believe that the applicant would be admitted to the foreign country or territory, but that that condition of admission would be fulfilled as a matter of certainty. I am bound to say that I find the logic of this submission difficult to follow. Lord Fraser said in terms in the case which the House of Lords was considering, which was one where a precedent fact had to be established: "It is not enough that the immigration officer reasonably believes him to be an illegal entrant if the evidence does not justify his belief." In the present case the statutory provision in terms uses the phrase "there is reason to believe". I find it difficult to follow and impossible to accept that that authority, to the effect that those words cannot be implied if they are not present, can lead to the conclusion that they should be disregarded if they are present. I therefore approach this aspect of the application on the basis that the court is concerned to consider whether there are grounds, whether by reference to the Wednesbury principle or otherwise, upon which it may be said that the Secretary of State could not properly give directions for removal in this case because he could not properly say that he had reason to believe that Mrs Patel would be admitted to India. The evidence of the attitude of the Indian authorities can be summarised as follows. I should perhaps begin with the most recent evidence, produced as additional evidence before us today, which is a letter from the High Commissioner of India to Mr Ruparell, dated 12 February 1993: "Mrs Patel being a British Passport holder will not be admitted into India unless and until she voluntarily obtains a valid visa to enter India." Other evidence includes the following. First, a letter from the High Commission of India to Mr Ruparell, dated 6 August 1991 (page 104 of the bundle): "British Overseas Citizen Passport holders who are allowed to re-enter the UK may apply for a visa to go to India and each application will be considered taking into consideration the circumstances of the case." On the previous page is a letter from 1988, not dealing with this specific case, in which the High Commission's representative said as follows: "Normally, such cases are required to be referred to authorities in India before visa could be granted. However, she" -- referring to that applicant -- "claims that her husband is in India but she was sent back by Immigration authorities when she went to India to join him. From the papers it is not clear if her husband is an Indian national. If this is so, we do not see any reason why a visa could not be granted to her. She may please be advised to produce documentary evidence to show that her husband is an Indian citizen and that she is his legally wedded wife. On production of these documents we could issue an entry visa to her. We may however like to mention that we will not insist on her to apply and obtain a visa for India against her wishes. If she does not want a visa we will not force one on her." There is a further piece of evidence, a letter from the Secretary of State which appears at page 41 of the bundle. This in fact was from the Parliamentary Under Secretary of State, Sir Peter Lloyd, in connection with this case in reply to a Member of Parliament's letter to which I have already referred. In the course of the letter he says as follows: "As for obtaining a new re-entry visa from the Indian High Commission in London, I understand that she should have no difficulty as the wife of an Indian citizen." Then the last two sentences: "In view of her close family and residential connections with India, I have no reason to believe that the Indian authorities would refuse to accept her on removal from the United Kingdom. However, I hope that Mrs Patel will now make arrangements to leave this country voluntarily without the need for criminal or deportation proceedings." I should also refer to a letter written by the then Minister of State, Mr David Waddington, in another case in 1987. That was a case where the lady apparently wished to come to the United Kingdom for the purpose of settling here and did not wish to return to India. In the result she was given leave to enter for an initial period of twelve months. The letter from Mr Waddington included the following sentence: "In normal circumstances I would have had her returned to India but, as you are aware, there are problems in returning passengers without re-entry visas. She had made it quite clear, through her letter to the Indian High Commission, that she has no intention of applying for the necessary visa." Mr de Mello therefore is entitled to take that as an indication by the then Minister of State that a case where the applicant has no intention of applying for the necessary visa is one which creates additional problems. This application requires the court to address that problem, and Mr de Mello's submission is that in a situation where the applicant makes it clear that she is unwilling to apply for a visa, the evidence shows that the Secretary of State cannot reasonably believe that she will in fact be admitted to India if a deportation order is made. It seems to me, with respect to that submission, that there are least two answers to it. The first and to my mind the foremost answer is this. It seems to me that the requirement that the Secretary of State should have reason to believe that the person concerned will be admitted to the foreign country or territory necessarily supposes that the immigration formalities for that country will be complied with. On the evidence, putting it at its highest in favour of the applicant, a requirement of the Indian authorities is that a visa should be applied for. On the evidence which I have read, to put it at its very lowest, the Secretary of State may well say that there is reason to believe that the visa if applied for will be granted. It seems to me that to require Mrs Patel to apply for a visa involves no greater degree of compulsion than any immigration formality would necessarily involve however minor it might be. Therefore the fact that it will be necessary for her as part of the immigration formalities to apply for a visa does not in any way prevent the Secretary of State from reasonably believing that she will be granted a visa and will be allowed to enter India accordingly. The second reason, which is wholly distinct, is simply this. As the learned judge said in his judgment, the grant of leave is a matter of discretion, and in this case the difficulty arises solely from what he called "the attitude" of this lady. That is a factor which would militate against the grant of leave, and in that respect I would agree with the learned judge. The second point raised under the heading of "policy" arises in the way which I have already described. I should summarise the evidence which is before us by reference, first, to the specific cases which are referred to in Miss Herron's affidavit. The first was a case in 1983 or thereabouts of a Malayan student where no third country was willing to accept him. Therefore it was not a case like the present to which paragraph 1(1)(b) of schedule 3 applied. It involved correspondence in 1985, which was exhibited to the affidavit. That confirmed that the applicant had no third country to return to. The upshot was a decision on 8 August 1985, following further consideration, that indefinite leave to remain would be given "on an exceptional basis." The second case referred to in the affidavit was one which arose in 1986. Again documents were exhibited. In many ways it was the converse of the present in that the lady intended to settle in this country and there was apparently some prospect that her Indian husband and children might wish to join her here. However that may be, the upshot was that the lady was allowed a twelve-month extension of her initial entry period. The third case is one to which I have already referred. That was a case from Leicester in about 1987, where again a twelve-month initial period was allowed. That, it seems, is the same case as is referred to in the letter from Mr Ruparell at page 39 of our bundle. Those are the only three specific cases of which we have evidence, but under the general heading of "policy" Mr de Mello refers first to a letter from the Home Office dated 20 March 1981. This refers to a general practice in the following terms: "If a person does not qualify under the rules, we have a choice of refusing the application for settlement or treating the applicant exceptionally outside the rules. The general practice we follow is that if a person who applies for settlement has been here lawfully for at least four years he will be granted settlement outside the rules . . . If a person applies before he has been here for four years, he may be granted an extension of stay depending on his circumstances." In 1990 there was a meeting between representatives of the Joint Council for the Welfare of Immigrants and Mr Harrington of the Immigration and Nationality department. A letter which was undated but was written in advance of that meeting reads as follows: "1. In 1981 we received a letter . . . from Mr Hillary of the Department about the policy relating to British Overseas Citizens who had remained in the United Kingdom with leave for a period of four years or longer, in which case there was a presumption that they would be granted indefinite leave. It is our experience at present that this is not the case and we would like to know when and how that policy has subsequently been changed." We also have a note of that meeting, paragraph 1 of which includes the following: "They" -- meaning the Home Office -- "claim that there has been no policy change, but that they interpret para 4 of the letter" -- the letter I have just read -- ". . . to apply only to those who have had exceptional leave to remain for four years -- not to visitors or others with limited leave." I do not need to read the rest. What appears to be to me significant from that statement of the practice or policy as understood by the Joint Council for the Welfare of Immigrants at that time was that it applied to British Overseas citizens who had remained in the United Kingdom with leave for a period of four years or longer. That would reflect accurately the word "lawfully" which appears in Mr Hillary's letter in 1981. With that summary of the evidence, the question arises whether it shows that there is an arguable case of a practice, or policy, or combination of both which might entitle the applicant to consistency of treatment with other persons to whom that policy or practice have been applied. The policy, if it is one upon which Mrs Patel could rely, would have at the very least to apply in a case where the initial period allowed for entry (ie six months) was never extended, where for a total period of five years (ie four-and-a-half years since that period) she had remained in this country without any form of lawful extension save to the extent of what was permitted whilst appeals or similar procedures were pending, and whether it could be said that in such a case she would be entitled either to a permanent or to a substantial extension of the period. The short answer, in my judgment, is that there is nowhere any indication of a policy or a practice which could have that effect in her case. The policy as stated would only apply where the presence in this country for at least four years was presence by virtue of lawful extensions of the original permission. That is not true in Mrs Patel's case. In two of the cases there was taken what was called "an exceptional course", which was permission to stay for twelve months only. It seems to me that this application, so far as the policy aspect is concerned, must fall at the first hurdle. The evidence does not indicate, even arguably, that there has been any statement of policy or consistency of practice which could apply in a case such as the present where, and I will repeat myself to this extent, the initial period of six months expired long ago. All procedures to extend it have been tried and have failed. In those circumstances it seems to me that the decision of the Home Secretary cannot be impugned on this ground. In those circumstances it seems to me this application should be refused.

Judgment Two:

KENNEDY LJ: I agree.

Judgment Three:

BALCOMBE LJ: I too agree.

DISPOSITION:

Application refused

SOLICITORS:

Joint Council for the Welfare of Immigrants; Treasury Solicitor

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