R v. Immigration Appeal Tribunal, Ex parte Ekrem Mehmet, Kamer Mehmet and Muhtap Mehmet

Queen's Bench Division

[1978] Imm AR 46

Hearing Date: 10 October 1977

10 October 1977

Index Terms:

Deportation -- Family of person (husband/father) who "is or has been ordered to be deported" -- Order against husband/father quashed by certiorari -- Quashing not effective to set aside antecedent decision to deport husband/father -- Whether effective to invalidate decision to deport his wife and child by reason of the relationship -- Immigration Act 1971, s 3(5)(a) & (c) , s 5(1).

Deportation -- Notice of intended deportation -- Amendment of notice -- Reasons in notice served conforming with specific statutory ground (relationship to other person) for decision to make deportation order -- Amendment proposed substituting reasons under different statutory provision -- Notice of intended deportation served on wife and child as family of man who "is or has been ordered to be deported" -- Order of deportation against man quashed by certiorari -- Whether reasons in notice to wife and child could then be amended to show decision to deport taken on other statutory grounds -- Immigration Act 1971, s 3(5)(a) & (c) , s 5(1) & (3), s 18(1) -- Immigration Appeals (Notices) Regulations, reg 4(1).

Deportation -- Order made quashed by certiorari -- Whether quashing of deportation order was effective to quash also the antecedent decision to make a deportation order -- Immigration Act 1971, s 3(5)(a), s 5(1).

Held:

The quashing by certiorari of a deportation order made against a person under s 5(1) n1 of the Immigration Act 1971 did not bring down also the antecedent decision to make a deportation order under s 3(5)(a) n2. However, the Secretary of State's decision to deport (under s 3(5)(c) n3) the wife and child of the man whose deportation order had been quashed was thereby made invalid, because the husband/ father was no longer a person who "is or has been ordered to be deported"; and the notice of intention to deport them could not be amended so as to change the grounds for deporting them to those applicable under s 3(5)(a) -- deportation by reason, inter alia, of their being 'overstayers' in this country. n1 Section 5(1) provides inter alia that where a person is liable under s 3(5) to deportation, then (subject to certain provisions not here material) the Secretary of State may make a deportation order against him. n2 Section 3(5)(a) is set out on p 47, post. n3 Section 3(5)(c) is set out on p 47, post. The Divisional Court so held on the applications for prerogative orders made in the case which is reported below. Per curiam: Though there was no doubt a strong case to be made under s 3(5)(a) against the wife and daughter it was never made out; the immigration legislation, and regulations under it, required that the ground for deportation be specified in the notice, and it would not be logical to change horses half-way and proceed under s 3(5)(a) when no case against the wife and daughter under that subsection was developed at all.

Counsel:

K. S. Nathan for the applicants. Andrew Collins for the respondent. PANEL: Lord Widgery CJ, Cantley and Peter Pain JJ

Judgment One:

LORD WIDGERY CJ: In these proceedings Mr Nathan moves on behalf of three applicants, Ekrem Mehmet, Kamer Mehmet (his wife) and Muhtap Mehmet (a child of the marriage) for a number of prerogative orders arising out of the immigration legislation. First of all, Mr Mehmet (the father) wants an Order of Certiorari to remove into this Court with a view to its being quashed a decision to make a deportation order as long ago as 26 February 1975. In addition to that -- and I do not attempt to give all the forms of relief sought -- as a matter of substance there is a claim for an Order of Certiorari to remove into this Court and quash a decision to make a deportation order in respect of the wife and the child, if I may so describe them, such decision being taken by the Secretary of State for the Home Department on 9 July 1976. I think those matters are the substance of the relief sought in this case. The story begins in about 1971. In or about that year both the parents came to this country from Cyprus. The father came first and the mother arrived later on with the child, but she did not disclose to the immigration authorities that her husband was already in the country. We have not gone into this aspect of the matter in any sort of detail, and I am not expressing any views as to whether that was a dishonest practice or not, but certainly it seems to have been regarded by some people as a matter for criticism. However that may be, they both find themselves in the country in 1971. They both have permission to remain for a period. At one place in the papers the period is called one month and in another it is called six months, but it does not really matter which it was. They stayed for the period authorised by their initial entry permission and continued to live in this country thereafter without further regard to the limit of time imposed on their visit. Indeed, they remained for about five years before they came to the surface, if one may use that phrase, and that situation had to be dealt with. The position in regard to these three persons on the immigration legislation is that they were all potentially liable to be returned to Cyprus under s 3(5)(a) of the Immigration Act 1971, which reads as follows: "A person who is not patrial 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". That is a case of very common application, and in the jargon such people are referred to sometimes as "overstayers". They are those people who remain in this country longer than they are authorised to remain. One must notice in passing s 3(5)(c) because it plays a very important part in this case. It provides:

"A person who is not patrial shall be liable to deportation from the United Kingdom --... (c) if another person to whose family he belongs is or has been ordered to be deported."

Clearly the three individuals to whom I have already referred were a family, and the policy of the Home Office in this instance seems to have been to proceed against the father in the first instnace, with a view to relying on section 3(5)(c) in respect of the mother and the child when the appropriate time came. The Secretary of State duly decided to make a deportation order, and appeal was made by all three of these applicants against the deportation order. The Home Office application in respect of the father succeeded and, as I have already said, he was dealt with first. On the Home Office having succeeded against the father, the father (having pursued his right of appeal with-out obtaining any suitable relief) then came to this Court on an application for Certiorari on 4 November last year. The case is one of some importance and the judgment is a long one. I am not going to deal with it in anything like its full detail, but it did concern the right of a father to remain in this country. The decision in the case of Mehmet n4 on its hearing in this Court on 4 November 1976 was that the deportation order, which by this time had been made against him, n5 should be set aside and it should no longer have effect against him. I can read the actual words from the order of this Court and confirm the accuracy or otherwise. It was ordered by this Court that the decision of the Immigration Appeal Tribunal be removed into the Queen's Bench Division and that thereupon the said determination shall be quashed. The Immigration Appeal Tribunal was further commanded to grant to the applicant (that is to say the father) leave to appeal and to hear and determine such appeal. n4 R v Immigration Appeal Tribunal, ex p Ekrem Mehmet, reported in [1977] Imm A R 56. n5 Under s 5(1) of the Immigration Act 1971. That order having been made in the case of the father, there was no longer any deportation order effective in his case. The Secretary of State had decided, however, in the meantime to make a deportation order against the mother and the child under s 3(5)(c) of the Act. The position then resulting was subject to a number of difficult considerations and problems arising under the Act of 1971, but those problems did not affect the father. The father's case, when he came back before the Tribunal, was no more nor less than this: if the deportation order against him had been quashed, as it had, that necessarily brought down with it the antecedent decision of the Secretary of State to make a deportation order. The procedure is in two stages, and the decision to make a deportation order precedes the making of the order itself. The order having been set aside, it was contended by the father (the applicant) that the decision to make the deportation order had fallen with it. On that footing he contended that there was no power further to detain him or to apply the immigration laws in his case. For my part, I have no doubt that the argument was wrong, and Mr Nathan has not sought to pursue it. It is quite impossible, in my view, to contend that the setting aside of the deportation order brings down with it the decision to make that order. One can well imagine the case in which, after a perfectly lawful decision to make an order, some small, technical defect appeared in the reasoning and procedure following the making of that decision. It would be absurd if such a technical defect in the making of the order itself brought down the decision to make the order as well. In my judgment, the father has no right to the relief claimed by Mr Nathan in this Court, and I will say no more about him. As far as the mother and daughter are concerned, the first question we have to consider is whether they remain within s 3(5)(c) when the father's deportation order has been set aside. It will be remembered that the conditions necessary to bring s 3(5)(c) into operation are that another person who is the father to whose family the mother and daughter belong "is or has been ordered to be deported". Of course the father was ordered to be deported, but the order was not sustained and it was set aside in this Court by Certiorari. Can one then say that nevertheless the mother and the daughter are still members of a family of whom another member "is or has been ordered to be deported"? In my judgment, one cannot. The effect of Certiorari quashing the deportation order was to remove it altogether. It does not seem to me possible to construe s 3(5)(c) as though the survival of a decision to make a deportation order against the father is enough to satisfy that requirement. Further, on the same s 3(5), argument has been directed to us in regard to para (a), which I have already read. The point arose in this way. When the representative of the Home Office at the hearing before the Tribunal realised he was in some difficulty under s 3(5)(c) , he sought to amend the proceedings in this way. He asked for leave to amend the notice which initiated these proceedings against the mother and the daughter by striking out "a deportation order has been made against Mr Mehmet" and substituting "Mr Mehmet has been ordered to be deported". For myself, I can see no difference between those phrases, and I cannot understand why trouble was taken to substitute the one for the other. The real question is whether the Home Office, having failed (as I hold they have) in their case on s 3(5)(c) , can get home on s 3(5)(a). It is true that there was no doubt a strong case to be made under s 3(5)(a) against the wife and the daughter, but it never was made out. The notice required by the legislation and the regulations under it itself required that the ground of the order should be specified n6. No notice was given in respect of the wife and daughter which specified that the basis of the claim was s 3(5)(a). It does not seem to me to be logical or right that, having reached that situation, the authorities should be entitled to change horses halfway and proceed under s 3(5)(a) when no case against the applicants under para (a) of the subsection was developed at all. n6 See the Immigration Act 1971, s 18(1), and the Immigration Appeals (Notices) Regulations 1972, reg 4(1). It was put by counsel in the course of argument that nowadays amendments are made and allowed far more freely than they were a few years ago. But this is not the amendment of a pleading. This is not a statement of a case which has been pursued in court. The notice in question here was a notice originally given to the wife and the child, telling them that proceedings were going to be taken to deport them and indicated what the ground was. That ground should be stated with care, and no doubt it was stated with care in this case, but it proved to be insubstantial. When this deportation order went, then the argument for the Home Office on s 3(5)(c) went as well, and I would not be party to saying that they had any kind of right to change from their approach under s 3(5)(c) to an approach under s 3(5)(a) in the middle of proceedings, as was attempted to be done. Those are the only points which I find it necessary to be concerned with. We have had great assistance in this case from counsel. The Immigration Act 1971 is just beginning to offer up difficulties, and we are just beginning to realise what problems there may be in store for us in its administration. But as far as the present applications are concerned, I would refuse that in respect of the father, but I would allow that in respect of the mother and the daughter, that is to say the mother and the daughter in respect of the deportation order ultimately made against them.

Judgment Two:

CANTLEY J: I agree.

Judgment Three:

PETER PAIN J: I agree.

SOLICITORS:

Pollard & Co; Treasury Solicitor.

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