R v. Secretary of State for the Home Department, Ex parte Husbadak

R v SECRETARY OF STATE FOR HOME AFFAIRS Ex parte HUSBADAK, TH/74176/81

Queen's Bench Division

[1982] Imm AR 8

Hearing Date: 5 February 1982

5 February 1982

Index Terms:

Adjudicator -- Functions of -- Consideration of the facts afresh -- Conclusion on the facts -- Conclusion as to whether or not the decision or action appealed against was in accordance with the law -- Whether should allow appeal if some mistake made although decision reached was the right one -- Immigration Act 1971, s 19(1).

Held:

The applicants, husband and wife of Turkish extraction, arrived on 30 March 1975 and were eventually given leave to remain until 30 March 1976. On 27 March 1980 they were sentenced at the Inner London Crown Court but no recommendation for deportation was made. However, the Secretary of State decided to make a deportation order. The applicants' appeal against this was dismissed by first an adjudicator and then the Immigration Appeal Tribunal, and the present action arises therefrom. Held: Adjudicator's function was: (i) to find the facts afresh; (ii) Whether the decision was a proper one and whether she right rules (and discretion if relevant) applied: if so the adjudicator should dismiss the appeal. (iii) He should not allow the appeal just because the Secretary of State made some mistake although arriving at the right decision.

Cases referred to in the Judgment:

Ashbridge [1965] 3 All E.R. 371. Ex parte M. I. A. Malik, unreported: QBD 16.11.1981, CA 142 1982.

Counsel:

D. Broatch for the appellants. Simon Brown for the respondent. PANEL: Woolf J

Judgment One:

WOOLF J. In this matter Mr. Broatch has appeared on behalf of Mr. and Mrs. Husbadak, who seek to challenge decisions which were reached by, first of all, the Secretary of State, then by an adjudicator and then by an immigration appeal tribunal. Mr. Broatch, to whom the court is indebted, has put his submissions very clearly and in a very concise form. I should set out very shortly the facts of this matter. The Applicants are husband and wife, and they came to this country, being of Turkish extraction, on 30th March, 1975. They were eventually given leave to remain until 30th March, 1976. The husband left the United Kingdom and then was given leave to remain on his return until 21st September, 1977. They undoubtedly -- and there is no dispute about this -- remained a time beyond that which they were permitted to do, and they were charged with being overstayers, contrary to section 24(1)(d)(i) of the Immigration Act, 1971. They appeared at the Inner London Crown Court on 22nd June, 1979 and they pleaded guilty to the charge. They were not dealt with on the occasion by way of sentence, but an order was made binding them over to come up for judgment when called upon on condition that they should leave the United Kingdom on 21st August, 1979 and not return for 10 years. A bona fide appeal was entered into against that order. The matter eventually came before the full Court of Appeal (Criminal Division) and the appeal was dismissed on 29th January, 1980. The matter came back before the learned judge on 27th March, 1980, and on that occasion he adjourned the matter and deferred sentence for three months. When the matter was eventually disposed of by another judge on 19th June, 1980, the husband was sentenced to a fine of @50 and the wife was fined @30. No recommendation for deportation was made, but there was the usual formal imprisonment by way of default. The learned judge observed when declining to make the recommendation that the husband and wife had two children born in Britain. However, the Secretary of State was in no way bound by the decision of the judge in that matter, and he decided to make a deportation order in both cases. The grounds which were set out in both cases were the same, and they were: "You were admitted to the United Kingdom on 20 March 1977 for 6 months as a visitor. You did not observe the time limit attached to your leave to enter and have been convicted of knowingly overstaying that leave. The Secretary of State is satisfied that you have failed to comply with the time limit attached to your stay in that you have remained in the United Kingdom without authority up to the date of this notice." I stress the words "up to the date of this notice". Against that decision there was an appeal to an adjudicator and eventually to a tribunal, both of whom found against the Applicants. The first point that was taken before the adjudicator by Mr. Broatch, who appeared before the adjudicator, was that the whole approach of the Secretary of State as indicated by his decision, and repeated in the Home Office statement, was wrong because he was regarding them as overstayers up to the date of the notice, whereas because of the criminal proceedings they had to be in this country for a period of time, and so it could not possibly be right to regard them as overstayers during that period. He also contended that there was a series of mistakes in the Home Office statement. I do not purpose to categorise them exhaustively, but as an example he seemed to be regarding them as being convicted twice when they had only been convicted once. That is how Mr. Broatch puts it. I am going to assume that there were mistakes in the Home Office statement. I am also going to assume that the reasoning in the decision was wrong for the reasons advanced by Mr. Broatch. Mr. Brown does not concede that this is right, but that is the approach I am going to adopt. I am going to adopt it in particular because that is the way the matter was approached by the adjudicator, because he said that the mistakes in the Home Office statement are to be regretted, though he did add: ".... I cannot see, once corrected, that they have in any way handicapped or prejudiced the appellants' case." What the adjudicator did was, having accepted that there were mistakes, he looked at the matter afresh, and he came to the conclusion, having considered it afresh, that the decision of the Secretary of State was right. If there had not been the mistakes by the Secretary of State, as I understand it, Mr. Broatch would not have contended that the adjudicator could not have come to the decision he did. But he says that the mistakes of the Secretary of State amounted to mistakes of law and because of that the adjudicator had no option but to allow the appeal, which meant the Home Secretary would have to reconsider the whole matter afresh and there could be a fresh appeal. If Mr. Broatch is right with regard to that, then that was an error which the tribunal did not correct because they were also in error in regarding the action of the adjudicator as being right. The argument, it seems to me, that is advanced on behalf of the Applicants by Mr. Broatch can be summarised in this way. It is trite law in respect of other statutory procedures whereby the court can examine action by Secretaries of State that, if the Secretary of State fails to take into account something he ought to take into account or takes into account something which he should not take into account, that is categorised as an error of law. No authority needs to be cited for that proposition, but if authority were needed the Ashbridge case and the judgment of the Master of the Rolls is often referred to. There is no doubt that, if the situation is one where the statutory provisions require the Secretary of State to consider the matter properly, and if he does not consider it properly, then he goes outside his powers and this court quashes the decision. Is this the same sort of situation? Whether it is or not depends, in my view, exclusively on the interpretation of section 19 of the Immigration Act, 1971, which reads: "(1) Subject to sections 13(4) and 16(4) above, as to any restriction of the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act -- (a) shall allow the appeal if he considers -- (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal." Mr. Broatch says that the proper approach here is to read that section as having the effect that, if the Secretary of State came to a decision which involved an error of law, then the appeal has to be allowed. The adjudicator has no discretion in the matter. Once he has come to the conclusion that the Secretary of State has gone wrong and he failed to consider something which he should have considered, namely, which was the right period that these people were overstayers, then that was an end of the matter. I am afraid I do not accept that view of the Act. It seems to me that what is envisaged happening is the adjudicator considers the facts and comes to his conclusion on the facts. If having come to his conclusion on the facts he comes to the conclusion that the decision or action against which the appeal was brought was not in accordance with the law, then he must allow the appeal. If, however, he comes to the conclusion on his consideration that the decision was one which was in accordance with the law, then he dismisses the appeal. When the matter comes before him he goes into the facts again. He performs a different function from that which the court performs on the statutory appeals considered by the Master of the Rolls in the Ashbridge case. He is the person who comes to the conclusion as to what the facts are and then applies his discretion to those facts. If as a result of so doing it is apparent that the decision was a perfectly proper one, that the rules applied by the Secretary of State were the right ones, that the action was one which he was entitled to take applying those rules, and that if and in so far as it involved a discretion the discretion was properly exercised, then the adjudicator should not be required to allow the appeal. It would be absurd if he were because the only consequence of allowing the appeal in those circumstances would be that the whole matter would have to go back to stage 1. The Secretary of State would come to the same decision. The matter would come before an adjudicator again and he would come to the same decision. What is intended by this section is that, where the matter is one where on the facts that were found it would be wrong to make the order which the Secretary of State made, then of course the adjudicator must allow the appeal and that is all. I was very properly referred to the case of Ex parte Malik, which was decided by Forbes J on 16th November, 1981, which I understand is now under appeal. In that case, Forbes J said that, where the adjudicator took the view that the Secretary of State had applied the wrong rules, he could not seek to exercise his discretion under the right rules. In my view, that case is very different from the one which is under consideration here and I do not think it has any relevance to this case. I therefore do not need to consider to what extent I am bound by that decision. In view of the conclusion to which I have come on the law I am afraid it means that the application to this court must be refused. I make it clear in so doing that I have limited powers. I cannot review the discretion of the Secretary of State. I have no grounds for interfering here if the adjudicator came to a decision to which he was entitled to come and if the tribunal were not required to interfere.

DISPOSITION:

Application refused.

SOLICITORS:

Messrs Daniel Davies and Co; Treasury Solicitor.