Fatima Mouncife v. Secretary of State for the Home Department

FATIMA MOUNCIFE
(Apellant)
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Respondent)

15 December 1995

Court of Appeal: Simon Brown, Pill LJJ
Buxton J

Removal directions-citizen of Morocco—claimed also to be citizen of Ireland-status not accepted by Irish authorities-whether Tribunal obliged to determine -whether applicant entitled to Irish nationality-whether Secretary of State entitled to remove appellant to Morocco-the relevance of EC law. Immigration Act 1971 s. 17(1): HC 251 para. 177: Treaty of Rome (as amended) art. 8a: Council Directive 64/221/EEC art. 34.

The appellant was a citizen of Morocco. She was an illegal entrant, having entered the United Kingdom in breach of a deportation order. The Secretary of State decided to remove her to Morocco. She appealed. She asserted that she was a citizen of Ireland and should be removed there. She had at one time held an Irish passport following her marriage but the Irish authorities were investigating her circumstances and did not accept she was entitled to enter Ireland without a visa. She had been advised to clarify her position vis-à-vis the Irish authorities but had taken no steps to do so.

Her appeals to an adjudicator and to the Tribunal were dismissed. The Tribunal despite being pressed by counsel to do so, had declined to pronounce on whether the appellant held Irish citizenship.

On appeal counsel argued that the Tribunal had erred in not determining whether the appellant had Irish citizenship. It was, he maintained, irrelevant that the Irish authorities would not receive her. If she were an Irish citizen, she would enjoy freedom of movement within the EC, relying on article 8a of the Treaty of Rome. Because the appellant was in effect asserting a Community right the Tribunal had an obligation to adjudicate on the claim more thoroughly than if no Community rights were involved.

Held

1. The Tribunal's approach had been correct. It had no more onerous an obligation to investigate a claim of nationality simply because an EC right was claimed.

2. No reliance could be placed on article of the Treaty: following Phull that article had no direct effect.

3. Nothing in the immigration rules required the Secretary-of State or the Tribunal to decide the correctness of a deportee's claim to be a national of another country simply so as to widen up the scope of the resulting discretion in paragraph 177 as to where to deport that person.

4. The immigration rules required the appellant to show that another country would receive her and that, on the evidence, as the Tribunal rightly concluded, she had failed to do.

A Riza QC and A Dias for the appellant

Miss D Rose for the respondent

Cases referred to in the judgments:

Oppenheimer v Cattermole [1976] AC 249: [1975] 1 All ER 538.

Kulwinder Kaur Phull v Secretary of State for the Home Department [1996] Imm AR 72.

SIMON BROWN LJ: The appellant is a Moroccan national, aged 42. She appeals to this court against the determination of the Immigration Appeal Tribunal on 15 November 1994 dismissing her appeal under section 17(1) of the Immigration Act 1971 as to the country to which she should be removed following her entry here in breach of a deportation order. She wants to be removed to Ireland and claims to be a citizen of that country. The Secretary of State, however, directed her removal to Morocco. That decision has been upheld successively by the adjudicator and the Immigration Appeal Tribunal.

Although the case has a long and somewhat complicated history, in reality the points could hardly be simpler. First, something of the history. The appellant first entered this country on 24 July 1981 with one month's leave as a visitor. In November 1981 she was refused further leave to remain as a student. On 22 June 1982 her appeal against that refusal of an extension of leave was dismissed. On 12 January 1983 the Secretary of State served upon her notice of intention to deport under section 3(5)(a) of the Act. On 12 March 1983 the applicant claimed to have married an Irish national, Mr. Carroll. On 17 March 1983 a deportation order was made against the appellant. On 2 June 1983 the appellant claimed to have obtained Irish citizenship by Post Nuptial Declaration and was issued with an Irish passport. In 1987 she returned to Morocco. On 15 July 1988 the appellant arrived at Gatwick Airport, produced a Moroccan passport and was granted six months' leave to enter as a visitor. On 13 October 1991 the appellant was arrested and interviewed and then served with a notice informing her that she was an illegal entrant because she had entered the United Kingdom in breach of the deportation order. On 6 September 1992 removal directions were served upon the appellant for her removal to Morocco. That, be it noted, was over three years ago. On 21 September 1992 the appellant appealed against the removal directions under section 17(1) of the Act. That, as is well-known, permits an appeal only on the ground that if she is to be removed, it should be to a different country specified by the appellant. She claimed to be an Irish citizen and sought to be removed to Ireland. On 9 October 1992 the Home Office wrote to the Irish authorities seeking clarification of the appellant's status. On 27 October 1992 the Irish Department of Foreign Affairs replied. I quote part of their letter:

"This woman's alleged marriage and application for Irish citizenship by Post-Nuptial Declaration are highly suspect and are under investigation. She is not entitled to enter Ireland without first applying for and being issued with an Irish visa on her Moroccan passport."

On 30 October 1992 the appellant's solicitors made representations on her behalf. On 9 November 1992 the Home Office replied. Again, let me quote from their letter:

"Mrs. Mouncife has so far not produced evidence to her entitlement to Irish citizenship. This should take the form of a current Irish passport or confirmation from the Irish authorities that she is regarded as an Irish citizen. Nor has she produced evidence to confirm that her husband is exercising European Community treaty rights in this country."

On 7 February 1994 the appellant obtained counsel's advice from a Mr. Ciaran Magill. Counsel expressed the opinion that because of Community law, the appellant, as an Irish citizen, could not be deported at all. Because, however, of the attitude of the Irish authorities disputing that citizenship, counsel suggested that the appellant "may be best advised to initiate steps in Ireland to clarify her true status there".

The appellant's appeal was heard by the adjudicator on 18 February 1994 and dismissed on 25 April. He set out the relevant immigration rule, paragraph 177 of HC 251. That I, too, must now do:

"Provision is made in the Act for removal from the United Kingdom of a person against whom a deportation order has been made. The power should be exercised so as to secure the person's return to the country of which he is a national, or which has most recently provided him with a travel document, unless he can show that another country will receive him notwithstanding his deportation from the United Kingdom; but, in considering any departure from the normal arrangements, regard should be had to the public interest generally, and to any additional expense that may fall on public funds. The person is to be notified of his right to appeal against the removal directions on the grounds that he ought to be removed (if at all) not to the country named in the directions but to a different country or territory specified by him."

The adjudicator then continued:

"It is common ground that a deportation order was made against the appellant. I am satisfied that she is a national of Morocco and she should therefore be removed to that country unless she can show that another country will receive her notwithstanding her deportation from the United Kingdom. It is clear from the letter dated 27 October 1992 from the Irish Department of Foreign Affairs that the Government of Ireland will not receive her and that she is not entitled to enter Ireland without first being issued an Irish visa."

I need cite no more. It follows as the night the day that the appeal fell to be dismissed.

On 15 June 1994 the Immigration Appeal Tribunal granted leave to appeal. On 12 October they heard the appeal. On 15 November they dismissed the appeal. On 7 December they gave leave to appeal to this court. In dismissing the appeal, the Immigration Appeal Tribunal first noted that despite counsel's advice, no efforts had been made to clarify the appellant's true status in Ireland, that she had not obtained an Irish visa on her Moroccan passport, nor a current Irish passport. She was claiming to have lost her earlier Irish passport.

Turning to the substance of the appeal before them, the Immigration Appeal Tribunal said this:

"On the evidence before us we are not prepared to conclude that the appellant presently holds Irish nationality. We accept that prima facie she secured it in 1983. It is clear that the Irish authorities do not accept that she holds it now. Mr. Riza's submission was that it mattered not what the Irish authorities said, it was what was laid down by Irish law that mattered. That is a conflict which in our view should be resolved in the Irish courts. We do not know the reasons for the Irish authorities' stance, but we cannot believe that it is not supported by some evidence of which we of course know nothing."

I omit the next paragraph. Their decision continues:

"Under paragraph 177 an appellant must show that another country 'will receive him': almost the only clear evidence in this case is the fact that without an Irish visa, Ireland will not receive the appellant, and she had declined to seek such a visa. In those circumstances she has not shown that she would be received by Ireland. It follows, in our view, that the Secretary of State was correct in concluding that she should be removed to the country of which incontestably she is a national and on whose passport she has lately travelled."

In short, the Immigration Appeal Tribunal decided, first, that the appellant had failed to satisfy them that she is an Irish national as well as being a Moroccan national, and, second, that, in any event, even if she had so satisfied them, she had certainly failed to show that Ireland would receive her if she was removed there. If the Immigration Appeal Tribunal was fight on either point, that inevitably disposed of the appeal.

How then does Mr. Riza QC, acting for the appellant again today as he has throughout her three successive appeals, seek to overcome this adverse determination? I have not, I confess, found his arguments altogether easy to follow. Not one word about European union law is to be found, either in the pleaded grounds on which the Immigration Appeal Tribunal were persuaded to grant leave to appeal to this court, nor in the rather differently formulated grounds by which this appeal was actually launched. Yet in argument before us it became ever plainer that the fact that Ireland, the state of which the appellant claims citizenship, is a European Union State was central to her case and that without it no appeal could be mounted. What, ultimately Mr. Riza seeks to say is this. The appellant is a European Union citizen. The Secretary of State, by his directions, is proposing to remove her outside the Union. That would be unlawful. Therefore, the Tribunal had to decide one way or the other whether she is indeed an Irish citizen. That in turn required them to determine the issue in accordance with Irish law. That they refused to do.

Let me first observe, as indeed I did during the hearing, that not merely is no such argument to be found pleaded in the grounds of appeal, but it is wholly inconsistent with a concession made in the very grounds which Mr. Riza himself drafted and upon which he secured the Immigration Appeal Tribunal's leave to appeal to this court:

"It is conceded that the appellant is indeed removable to Morocco; the question is whether she ought to be removed to the Irish Republic notwithstanding that she is removable to Morocco. Her removal to Ireland is easier provided always that she is an Irish citizen."

Let me put that troubling concession aside. For this appeal to succeed, the appellant must establish each of the following three matters: (1) that were she an Irish national that would avail her; in other words, she would thereby enjoy rights of freedom of movement under the treaty which would preclude her removal to Morocco; (2) that the Tribunal should have decided, but in the event declined to decide, the issue as to whether or not she is an Irish national; (3) that the Tribunal's further finding that "almost the only clear evidence in this case is the fact that without an Irish visa Ireland will not receive the appellant" is an irrelevance. Failure to make good any one of those three propositions would be fatal to this appeal. In my judgment, Mr. Riza fails on all.

Let me take each in turn as shortly as may be. First, even if an Irish national, the appellant would still only be entitled to resist removal to Morocco on the basis that she enjoys freedom of movement if she shows she is an economic operator. Note in this connection the Home Office letter of 9 November 1992, pointing out her failure to produce evidence confirming that her husband is exercising European Community treaty rights here. That essential fact she cannot establish. Indeed, she has not even sought to do so. Mr. Riza seeks to meet this difficulty by reliance upon article 8a which was included in the Treaty of Union to achieve fuller fights of movement. But this court recently held in ex parte Phull (unreported, 17 August 1995I[1]1) that article 8a does not have direct effect. That decisively destroys that argument.

Perhaps the depths of what I confess seemed to me a peculiarly barren European law argument were plumbed by Mr. Riza's attempted reliance on article 3.4 of Council Directive 64/221/EEC, reference to which appears for the very first time in his supplementary skeleton argument. Article 3.4 provides:

"The State which issued the identity card or passport shall allow the holder of such document to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute."

In my judgment that provision has no possible application or relevance to this case for at least two separate reasons: first, because it is directed to a situation where someone otherwise entitled to remain is being deported on grounds of public security or public health, by no means the situation in the present case; secondly, because article 3.4 is directed to "the State which issued the identity card or passport . . . " The travel document, and indeed the only travel document, which this appellant had at the time of her illegal entry here and at the time of the Secretary of State's decision to direct her removal, was, it will be 'recalled, not an Irish card or passport but a Moroccan passport. In fact, of course, this whole Community law argument proves far too much. Mr. Riza concedes that this appeal has to be conducted upon the footing that the deportation order was rightly made in 1983, and that when the appellant returned here in breach of it she was rightly treated as an illegal entrant, so that removal directions were then properly made against her; in other words, on the footing that the only question is where she should be removed to, the only ground of appeal available to her under section 17. Yet, in fact, if the appellant is indeed entitled to freedom of movement in the Union, none of this holds good and there could, of course, be no question of the Secretary of State lawfully removing her anywhere at all. Let me turn to the second matter. I, for my part, accept that there will indeed be occasions when our courts and tribunals have to grapple with and decide issues of foreign law and even, on occasion, as exemplified by the facts in Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249, with issues of foreign nationality law. It is trite law that such a decision will be taken by reference to evidence as to the true position in foreign law, treating that as an issue of fact. I am by no means persuaded that this is such a case. There is nothing whatever in the immigration rules requiring the Secretary of State or the appellate authorities to decide one way or another the correctness of a prospective deportee's claim to be a national of another country, simply so as to widen up the scope of the resulting discretion under paragraph 177 as to where to deport her. But even if that were wrong, and even therefore assuming, without deciding, that the present case did require the Tribunal to decide the issue, I reject Mr. Riza's criticism of the Tribunal's approach to that issue here. I think that the Tribunal did indeed pay regard to such evidence as was before them as to the true position under Irish law; they were simply unpersuaded by the somewhat diffident advice tendered by Mr. Magill that the applicant is an Irish citizen. In short, they addressed the issue properly. The burden of satisfying them upon it fell on the applicant. She failed to discharge it.

The third point is in any event wholly decisive of this appeal against the appellant. The appellant's claim to go to Ireland was bound to fail unless, at the very least, she satisfied the Tribunal that Ireland would receive and admit her. That she failed to do. On the contrary, it was manifest that Ireland would not receive her, without, that is, an Irish visa on her Moroccan passport. That visa she had conspicuously declined to seek.

Returning for a moment to paragraph 177, the "normal arrangements" here clearly indicated a return to Morocco. The appellant is, after all, on any showing a Moroccan national. That was the country from which she had arrived, both initially and later in breach of the deportation order. Her only travel document was a Moroccan passport. Paragraph 177 dictates that "in considering any departure from the normal arrangements regard should be had to the public interest generally and to any additional expense that may fall on public funds." How, one asks, could the public interest here, let alone considerations of saving public expenditure, have favoured removing her to Ireland rather than Morocco? What would that have done for comity between nations, bearing in mind Ireland's entirely understandable position in all this? How can it be said that the dispute between Ireland and the appellant as to her nationality should have been decided here by an English tribunal and if in favour of the appellant, that this country should then have acted for all the world as if that decision bound the Irish Government to accept her return?

This whole appeal is, in my judgment, misconceived from first to last. I reject Mr. Riza's arguments on each of the three points I have sought to identify. I regret that the Immigration Appeal Tribunal were themselves so bemused by the points put before them as to have granted leave, not least given the absence of any reference whatever to European law in the pleaded grounds before them. I would dismiss the appeal.

PILL LJ: I agree.

BUXTON J: I agree that this appeal should be dismissed for the reasons given by my lord. I would only mention one point. I agree with what my lord has said as to the Tribunal's decision on the question as to whether, on the evidence before it, the appellant could assert Irish nationality. They clearly held that, on the evidence before them, they were not prepared to conclude that the appellant presently holds Irish nationality. That was a finding which they properly made on the evidence, and according to the rules of domestic law applying in that Tribunal.

It appears to be part of Mr. Riza's argument that since his client was asserting a Community right the Tribunal were in some way under a different and more onerous obligation as to the mode in which it considered and adjudicated upon that claim than it would have been if she had been asserting a similar claim but not based on a Community right: for instance, if she had been claiming that she was a citizen of Switzerland. No authority was produced to support that striking and, in my view, heretical proposition which, in my judgment, is clearly wrong. The Tribunal properly dealt with this matter according to the domestic rules of procedure. That was the limit of its duty under Community law. As I have said, however, that is merely a footnote to the reasons given by my lord.

Appeal dismissed

Solicitors: Iqbal & Co, London, W2; Treasury Solicitor

 

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[1]I See now [1996] Imm AR 72.