O'Connor v. Secretary of State for the Home Department

O'CONNOR v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/6534/76(785)

Immigration Appeal Tribunal

[1977] Imm AR 29

Hearing Date: 26 August 1976

26 August 1976

Index Terms:

Deportation -- Deportation 'conducive to the public good' -- Exemption by reason of ordinary residence -- Decision to deport in 1975 -- Re-entry into United Kingdom in 1971 from Irish Republic in breach of extant deportation order of 1970 -- Revocation of that deportation order in 1974 -- Whether person 'ordinarily resident' in UK between 1971 and 1974 (including 1 January 1973) -- Whether exempt from deportation in June 1975 when fresh deportation order made following conviction of burglary -- Immigration Act 1971, s 3(5)(b), s 7(1)(a) & (2), s 33(2).

Held:

The appellant was a citizen of the Republic of Ireland. He became ordinarily resident in the United Kingdom in April 1970 but was deported in August that year following a conviction under the Theft Act 1968. In September 1971 he re-entered the United Kingdom; no immigration control operates between the Irish Republic and the United Kingdom but his re-entry was in breach of the 1970 deportation order. In January 1974 he was convicted of a burglary offence and was made subject to a suspended sentence of 18 months' imprisonment with a supervision order imposed during the 2 years' period of suspension. The Court was unaware of the extant deportation order, and with a view to allowing the supervision order to continue the Secretary of State revoked the deportation order in April 1974. Following a conviction for burglary in June 1975 the appellant was sentenced to imprisonment. After considering the appellant's marital position and other domestic circumstances the Secretary of State on 21 June 1976 decided to make a deportation order under s 3(5)(b) of the Immigration Act 1971 on the ground that the appellant's deportation would be "conducive to the public good". On his appeal against the Secretary of State's decision it was submitted for the appellant that, inter alia, he had become ordinarily resident free of conditions in April 1970 and that his enforced departure by reason of the deportation order of August 1970 did not affect his status of being ordinarily resident; further that as he had returned to the UK in September 1971 and had remained here ever since he was ordinarily resident on 1 January 1973 (when the Immigration Act 1971 came into force) and was therefore by virtue of the provisions of s 7(1)(a) and (2) n1 of the Act not liable to deportation under s 3(5)(b). n1 For the relevant provisions in s 7 see footnote 2, post. Held (dismissing the appeal): The appellant having returned to the United Kingdom in September 1971 "in breach of the immigration laws" was not (under s 33(2) of the Act) ordinarily resident from September 1971 till the deportation order was revoked in April 1974; nor could he avail himself of the provision in s 7(2), because he had not "remained here in breach of the immigration laws" but had been out of the country for over a year between being ordinarily resident here in 1970 and returning in 1971; hence he could not bring himself within s 7(1)(a) and was liable to deportation under s 3(5)(b).

Counsel:

Z. H. Chishti of the United Kingdom Immigrants Advisory Service for the appellant. B. Hunter for the respondent. PANEL: Sir Derek Hilton (President), G. J. Brown Esq, E. A. Lewis Esq

Judgment One:

THE TRIBUNAL: The appeal was against the decision of the respondent on 21 June 1976 to make a deportation order in respect of the appellant under s 3(5)(b) of the Immigration Act 1971. The appellant Thomas Christopher O'Connor, alias Dunne, is a citizen of the Republic of Ireland, born on 25 January 1951. The facts concerning the appellant are set out in the Home Office statement as follows: "1. The appellant arrived in the United Kingdom in April 1970 and on 28 May 1970 he appeared before Birmingham Assize Court and was convicted of robbery, contrary to s 8 of the Theft Act 1968. After the Court had been informed of the appellant's record of convictions against him, while a minor, in the Republic of Ireland for offences which included house-breaking, larceny, unlawful possession of goods, unlawful assault and breach of the peace -- as a result of which he spent periods in a reformatory, and of a further conviction on 9 February 1969 at Dublin District Court of robbery with violence and assault occasioning actual bodily harm, for which he received a 12 months' prison sentence, the Court sentenced the appellant to undergo a period of Borstal training and also recommended that he be deported. After careful consideration of all the relevant circumstances the Secretary of State made a deportation order in respect of the appellant on 9 July 1970 by virtue of s 9(1) of the Commonwealth Immigrants Act 1962 and gave directions for his removal to the Republic of Ireland. The appellant did not exercise his right of appeal against the Secretary of State's decision and was removed from the United Kingdom to the Republic of Ireland on 17 August 1970. 2. On 7 September 1970 the appellant was convicted at Dublin District Court of breaking and entering and stealing and was sentenced to 12 months' imprisonment. He subsequently returned to the United Kingdom some time during 1971 in breach of the deportation order made against him, and on 30 January 1974 he appeared before Huddersfield Crown Court and was convicted of an offence of burglary. The circumstances of the offence were that the premises of a public house were broken into and a quantity of cigarettes, spirits and cash were stolen. The appellant was subsequently arrested and charged with the offence. On this occasion he was sentenced to 18 months' imprisonment to be suspended for 2 years, with a supervision order to be imposed during the period of the suspension. 3. The Court had not been informed that the appellant was subject to an extant deportation order and, since it appeared contrary to the Court's wishes in making a supervision order to remove the appellant from the United Kingdom by virtue of this deportation order, the Secretary of State revoked it on 4 April 1974. 4. On 2 October 1975 West Midlands Police informed the Home Office that on 4 June 1975, at Birmingham Crown Court, the appellant had been convicted of burglary, contrary to s 9(1)(b) of the Theft Act 1968. The circumstances of this offence were that the appellant forcibly entered a private dwelling house and stole a quantity of jewellery and other articles to the value of @ 200 which were not recovered. He had also admitted a breach of the suspended prison sentence imposed at Hudders-field Crown Court on 20 January 1974. The appellant was sentenced to 18 months' imprisonment for the offence of burglary, and the 18 months' imprisonment which had formerly been suspended was activated and ordered to run consecutively, making a total of 3 years' imprisonment in all. No recommendation was made for his deportation, the Judge making no comment whatsoever in this regard. The police also informed the Home Office that the appellant had also been convicted on 4 September 1974 at Birmingham Magistrates' Court of obtaining petrol by deception for which he was fined @ 25 and ordered to pay @ 4 compensation. 5. In order to consider the appellant's position fully the Home Office made enquiries of the appellant by way of HM Prison Stafford, as a result of which they learned that he had married an Irish woman in 1972 but that during the summer of 1973 he had formed an association with another woman, Patricia Atkinson, by whom he had a child and had been living with her until his arrest. His wife Theresa had since returned to Ireland with her children, and the appellant claimed he had not seen her or the children since September 1973. Patricia Atkinson was interviewed by West Midlands Police, who informed the Home Office that she was born in Dublin but had come to the United Kingdom with her mother and other members of her family in 1968 and had lived in Birmingham ever since. She had had one child (a boy aged 1 1/2) by the appellant, and was at present in receipt of Social Security Benefit. She had informed the police interviewing officer that she would be willing to accompany the appellant back to Eire if he was deported and would continue to live with him there but would prefer to remain with him in the United Kingdom where her mother, four brothers and four sisters resided. She told the police officer that she and the appellant intend to marry and that her mother had been offered a new local authority house in Birmingham in which she, the appellant and their child would also be allowed to live." On 21 June 1976 the respondent considered that the appellant's presence in the United Kingdom was not "conducive to the public good" and decided to make a deportation order under s 3(5)(b) of the Immigration Act 1971 and to give directions for the removal of the appellant to the Republic of Ireland. The appellant appealed, his grounds being as follows: "1. I am married to Theresa O'Connor and we have three children aged 4, 3 and 2 respectively. I wish to continue my obligation to them on my release, both financially and morally. 2. I was living before my committal to prison, with Miss Patricia Atkinson of 431 Stratford Road, Sparkhill, Birmingham. I have a 19 month old child by her and wish to resume cohabitation with her on release." At the hearing of the appeal Mr. Chishti said that the facts were not in dispute and he would not be addressing us on the merits of the case, but the submitted that the appellant was protected from deportation under the provisions of s 7(1)(a) and (2) of the Immigration Act 1971. n2 Before developing his submission he called the appellant to give evidence. In his testimony the appellant said that he was born in Dublin and first came to the United Kingdom in April 1970. He came for employment, intending to stay indefinitely. After he had been deported he returned in September 1971, since when he had been more or less continuously employed as a builder's labourer. n2 Section 7 provides as follows: "(1) Notwithstanding anything in section 3(5) or (6) above but subject to the provisions of this section, a Commonwealth citizen or citizen of the Republic of Ireland who was such a citizen at the coming into force of this Act and was then ordinarily resident in the United Kingdom -- (a) shall not be liable to deportation under section 3(5)(b) if at the time of the Secretary of State's decision he had at all times since the coming into force of this Act been ordinarily resident in the United Kingdom and Islands;... (2) A person who has at any time become ordinarily resident in the United Kingdom or in any of the Islands shall not be treated for the purposes of this section as having ceased to be so by reason only of his having remained there in breach of the immigration laws." Mr Chishti said that the appellant became 'ordinarily resident' here free of conditions in April 1970. He intended to remain indefinitely. His deportation in August 1970 was an enforced departure and, in Mr Chishti's submission, the deportation order against the appellant did not affect his status of being 'ordinarily resident'. He had returned in September 1971 and had remained in the United Kingdom ever since. He was therefore ordinarily resident on I January 1973 when the Immigration Act 1971 came into force and was not liable to deportation under s 3(5)(b) by virtue of the provisions of s 7(1)(a) and (2). In reply Mr. Hunter submitted that the appellant could not be 'ordinarily resident' whilst in the United Kingdom in breach of an extant deportation order. Section 7(2) referred to a person having remained in breach of the immigration laws whereas the appellant had been removed from the United Kingdom in 1970. There was admittedly no immigration control between the United Kingdom and the Republic of Ireland but in his submission the appellant had no right to enter this country whilst subject to a deportation order. The evidence shows that the appellant became ordinarily resident in the United Kingdom after his arrival in April 1970. In August 1970 he was deported to the Republic of Ireland. The deportation order remained in force until revoked and it prohibited the appellant from entering the United Kingdom whilst it was in force. In September 1971, during the currency of the deportation order, the appellant re-entered the United Kingdom. Quite clearly the appellant returned to this country in breach of the immigration laws and he was not 'ordinarily resident' in the United Kingdom from September 1971 until 4 April 1974, when the deportation order was revoked -- see s 33(2) of the Immigration Act 1971. n3 Nor in our view can the appellant avail himself of the provisions of s 7(2) because he did not remain here in breach of the immigration laws but was out of the United Kingdom for over a year between being ordinarily resident here and returning in breach of the immigration laws. The appellant cannot therefore bring himself within the provisions of s 7(1)(a) and is liable to deportation under s 3(5)(b). n3 Section 33(2) of the 1971 Act declares that, except as otherwise provided in the Act, "a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom... at a time when he is there in breach of the immigration laws". And in sub-s (1) of s 33 the words "illegal entrant" are defined to include "a person unlawfully entering... in breach of a deportation order". A claim to exemption from a recommendation for deportation, made (under s 5(6) of the 1971 Act) by a judge at the Central Criminal Court, was considered by the Court of Appeal (Criminal Division) in R v Bangoo and Others on 26 July 1976. The applicants had been convicted of uttering forged passports to gain entry to the United Kingdom in 1968 for a limited stay; they had then remained in breach of the immigration laws. It was submitted on their behalf that the trial judge should not have recommended them for deportation because, under s 7(1)(c) , "at the time of the conviction (they) had for the last five years been ordinarily resident in the United Kingdom". The Court (BRIDGE LJ, WIEN & MICHAEL DAVES JJ) did not accept this submission. MICHAEL DAVIES J, giving the judgment of the Court, refusing the applications for leave to appeal against the recommendation, commented on the relevance of "a fraud as to the identity of the individual who is seeking to enter the country", and then observed that the Court had no doubt that s 7(2) of the 1971 Act was intended by the Legislature "to provide for the situation which would arise if a person has entered the United Kingdom properly and remained in the country for longer than the period in which he was given permission to stay". The Court arrived at this conclusion "with some satisfaction, because otherwise it would seem to mean that the greater the skill and fraudulent nature of the means used to effect an entry, the better the position of the illegal entrant would be". We have carefully considered the evidence and we are in no doubt that the decision appealed against was in accordance with the law and the immigration rules applicable and that discretion should not have been exercised differently. For these reasons we dismiss the appeal.

DISPOSITION:

Appeal dismissed.