R v. Immigration Appeal Tribunal, Ex parte Darshan Singh Sohal

R v IMMIGRATION APPEAL TRIBUNAL ex parte DARSHAN SINGH SOHAL, TH/30567/78(1533)

Queen's Bench Division

[1981] Imm AR 20

Hearing Date: 13 February 1981

13 February 1981

Index Terms:

Deportation -- Decision to make deportation order -- "Compassionate circumstances of the case" -- Sikh priest overstaying his leave -- Injury to community relations if Sikh community deprived of his services as a priest -- Desire of portion of Sikh community to retain this priest's services -- Whether effect on relations a 'political' question outside the immigration rules and not a justiciable matter for the immigration appellate authorities -- Whether deprivation to Sikh community a compassionate circumstance of the case to be taken into account when determining whether decision to make deportation order was right -- Whether "compassionate circumstances" to be considered only in their impact on the person to be deported -- HC 80, para 38 -- (HC 394, para 139).

Held:

The adjudicator and, after him, the Immigration Appeal Tribunal had not misdirected themselves when they decided that the effect on community relations of the proposed deportation of a Sikh priest (under s 3(5)(a) of the Immigration Act 1971 for overstaying his limited leave to remain in this country) was not a justiciable matter; rather, it was a 'political' matter in the context of community relations, and this was a question purely for the Secretary of State and not for consideration by the immigration appellate authorities. Nor had they erred in holding that the compassionate circumstances of which account was properly to be taken under para 38 of HC 80 n1 were those affecting the deportee himself, and not the impact which his deportation would be likely to have on other people, namely in this case on the portion of the Sikh community who wished to retain his services as a priest. n1 Paragraph 38 of HC 80 is set out on p 22, post. Paragraph 139 in the later rules HC 394 reproduces para 38 of HC 80 unchanged. The Divisional Court so held in the case which is reported below. The relevant facts are set out in the judgment.

Counsel:

John Friel for the applicant. Andrew Collins for the respondent. PANEL: Forbes J

Judgment One:

FORBES J: In this matter Mr Friel moves on behalf of Darshan Singh Sohal for judicial review asking for an order of certiorari to bring up and quash a decision of the Immigration Appeal Tribunal made on 16 July 1979. I need not, I think, go into the facts here and I am not sure the facts are of any really great significance for the point I have to decide is, as always in these cases, a point of law. The applicant here is a priest of the Sikh religion and his history is that, having been born in India, he arrived at Heathrow on 1 July 1975 with an entry clearance to work as a priest with a particular Sikh temple in Southall for three months. He was, therefore, given a limited leave to enter and to stay for three months for that purpose. He did not leave after three months but stayed for quite a long time. In the meantime, and I do not think it makes any difference, as I have indicated, to my decision in this case, there appears to have been some dissension of some kind in the Sikh temple and while one part of that community considered that this applicant, rightly or wrongly, was not acceptable to them as a priest, another body of Sikhs regarded him not only as highly acceptable but wanted him to remain in order to minister as a priest to their particular part of the community. The position having been disclosed that the applicant was staying beyond the period for which he was permitted to stay, the Home Secretary considered making a deportation order and decided to do so. The applicant appealed against that decision to an adjudicator. The adjudicator, having heard the matter over a very lengthy period came to the conclusion that he would uphold the Secretary of State. The applicant appealed from the adjudicator to the Immigration Appeal Tribunal and that Tribunal decided that the adjudicator had not gone wrong in law and that there was no reason why the appeal should be upheld and so they dismissed the appeal. The question which arises is a very narrow one. There is only an appeal to this Court on a point of law and although at one stage Mr Friel was seeking to argue that one of the points of law which he wished to argue before me was that both the adjudicator and the Immigration Appeal Tribunal failed to take into account certain evidence, it is quite apparent when one examines the decisions both of the adjudicator and of the Immigration Appeal Tribunal that no question of admitting evidence, the admissibility of evidence, or anything of that kind arises in this case. The point is a much narrower one. The question posed simply was this: there was, as I indicated earlier, a considerable body of evidence both oral and in the shape of a written petition that a portion of the Sikh community was very desirous of retaining the services of the applicant as a priest. There is no suggestion, or no tenable suggestion, that either the adjudicator or the Immigration Appeal Tribunal failed to take into account that evidence; they certainly did take it into account. The question simply is what inferences and arguments could properly be raised on that position. What the adjudicator did -- and it seems to me I must paraphrase it because he gave a very long decision -- and what the Immigration Appeal Tribunal did, was simply this. They said, in effect, that there are two aspects which might be argued about this desire of a portion of the Sikh community to retain the services of the applicant. One is that if the deportation is made and that part of the Sikh community is deprived of his services as a priest, that will be a matter which will injure community relations with the Sikh community. That was the first possible argument. What the adjudicator and the Immigration Appeal Tribunal, if I may paraphrase, said about that argument was this. If there is anything in that argument it is a political arguments and does not raise a justiciable matter. The question whether or not harm to community relations arises as a result of a deportation order is not something which arises under the Immigration Act and Rules; it is a "political" question, using that word with the broadest of connotations, and a matter purely for the Secretary of State; one with which, as judicial tribunals, "neither I", the adjudicator said to himself, "nor the Immigration Appeal Tribunal should interfere". That is the first point of argument. If it is going to be argued that the impact on community relations of making this deportation order is a matter which should be taken into account, it is not a matter which arises under the Immigration Act because it is a political matter. It is a question for the Secretary of State and not for the Tribunal; it is not a justiciable matter. The second way of arguing the point, namely the desire of the Sikh community to retain the services of the applicant and the effect on that community of a deportation order, is to say that it is something which does fall within the Immigration Act and is a matter to be considered under that Act and the rules and so on. If that is the argument then the only way it can be mounted is by looking at para 38 of House of Commons Command Paper 80, which is in these terms:

"In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects."

Mr Friel reminds me that as the Divisional Court said in R v Immigration Appeal Tribunal, Ex parte Joseph, n2 these paragraphs in these rules are to be interpreted broadly; when one is considering the merits one has to consider them "in the round"; the rules are intended for operation by immigration officers, they are not intended for operation by lawyers and one must not, as it were, apply the dissection that lawyers might use in construing an Act of Parliament; they must be construed broadly. I accept all that, but what one is considering here, and really the only point, is whether or not it can be said, on this argument, namely that the impact on the Sikh community falls within the matters to be considered under the immigration rules, that it is 'a compassionate circumstance' of the case which ought to be considered under para 38. n2 [1977] Imm. A.R. 70. So far as that is concerned, both the adjudicator and the Immigration Appeal Tribunal took the view that when one is talking about "compassionate circumstances of the case" one is looking at the person who is liable to be deported, the compassionate circumstances in his context. If, for instance, a person who might be deported has a wife who is seriously ill in this country, that would be a compassionate circumstance, not looking at it from the point of view of the wife in relation to her illness but from the point of view of the impact that the illness has as a compassionate matter on the husband. The view of the adjudicator and Immigration Appeal Tribunal was that when looking at compassion as it is dealt with in that paragraph one is looking at it from the aspect of the person likely to be deported, not from that of the persons likely to be affected by the deportation order. I think that is right. Mr Friel can only succeed, it seems to me, if he can persuade me that that way of looking at para 38 is wrong and that in taking that view both the adjudicator and the Tribunal misdirected themselves. I do not think they did. I think one must construe these paragraphs looking at them in the ordinary way, and in the ordinary way one would expect compassionate circumstances in the case to be a reflection of what effect some compassionate matter has on the applicant himself. I am not leaving out of account the fact that there must, I would imagine, be some effect upon a priest of any religion if he is severed from the community to whom he is ministering; but first of all, apart from the point arising inferentially, it has not been suggested to me that there was any evidence of any particularly compassionate ground here by the severance of this priest, so far as the priest is concerned, from his religious community. Secondly, in any event, the Tribunal seems to have taken that position, at any rate to some extent, into account because in dealing with the latter half of para 38 they say it can be cogently argued that if the appellate authorities were to treat the applicant's case differently from that of an ordinary citizen because the applicant is a priest they would not be dealing consistently and fairly "as between one person and another" under para 38. It seems to me, looking at this as a question of broad construction, the Tribunal and adjudicator were right in thinking that when one considers the compassionate circumstances of the case one is looking at a compassionate matter in its impact on the "deportee" and not in its impact on those from whom he will be separated if deported. So far as the second argument which arose from this desire of the Sikh community to retain their priest is concerned, it seems to me it cannot reasonably be said that either the adjudicator or the Appeal Tribunal misdirected themselves as to the meaning of para 38 of HC 80. There is another submission: Mr Friel suggested to me, and I readily accept it, that here is a general discretion under the Immigration Act in the Secretary of State and, if anybody appeals, the adjudicator, or whatever tribunal is considering the appeal, where it involves the exercise of such a discretion, has to deal with the point, because s 19(1)(a)(ii) of the Immigration Act 1971 requires the appellant authority to consider whether that discretion should have been exercised differently. But Mr Friel's argument was that it was part of the Secretary of State's discretion to consider the effects on the Sikh community and that therefore the appellate tribunals too should have considered this aspect as within their discretion. This is not a question of ioslating a part of the Secretary of State's discretion, it is again a question of dealing with an argument as a possible way of looking at the desire of this Sikh community to retain their priest. The argument, as I have indicated, was that there will be an effect on that part of the community if you take their priest away. All that the Tribunal, and the adjudicator, were saying was: "If you look at this aspect of discretion we do not think this is an argument which should be addressed to us as exercising the immigration discretion of the Secretary of State. It may be a matter he ought to consider, but if he ought to consider it, it is not in the context of immigration but in the context of community relations and that is a matter for the Secretary of State". Therefore, it is not a matter for the appellate authorities, and I think they were right in taking that view. In so far as anybody seeks to say that this question of the impact on the Sikh community arises under the rules, it can only arise under para 38 of HC 80 and I have dealt with the way in which the Tribunal and adjudicator looked at it under that paragraph and I think they were right. Those, it seems to me, are the only points which can be raised in this case and I hope I have dealt with them adequately. In my view this application should be dismissed.

DISPOSITION:

Order accordingly.

SOLICITORS:

Raisinghaney & Co, Middlesex; Treasury Solicitor.