R v. Immigration Appeal Tribunal, Ex parte Murugandarajah, Ex parte Sureshkumar

R v Immigration Appeal Tribunal ex parte Murugandarajah ex parte Sureshkumar

Queen's Bench Division

[1983] Imm AR 141

Hearing Date: 14 October 1983

14 October 1983

Index Terms:

Deportation -- Political Asylum -- Appeals against directions for removal to a given destination, and against removal at all on ground of political asylum -- Whether adjudicator and Immigration Appeal Tribunal had jurisdiction to consider claims that applicants were entitled to political asylum -- Distinction in jurisdiciton in respect of cases where deportation made on a court's recommendation, and in other cases -- Immigration Act 1971 s 17(1)(b).

Held:

The applicants, Tamils, were served with deportation orders with directions for removal to Sri Lanka. The only material distinction between their cases was that the order to the first applicant followed conviction and recommendation by a court. Each appealed not only against the directions to remove him to a given destination, but also against the decision to remove him at all, on the ground that he qualified for political asylum. Their appeals were first dismissed by an adjudicator and then by the Immigration Appeal Tribunal, the Tribunal ruling that when s 17(1)(b) of the Immigration Act 1971 provided that a deportee might appeal against the directions for his removal on the ground that he ought to be removed (if at all) to a different country, that predicated that he might not appeal on any other ground -- inclusio unius exclusio alterius. The present application was for judicial review of the Immigration Appeal Tribunal's decision. Held: (i) The Tribunal's interpretation of s 17(1) of the Immigration Act 1971 did not mean that the question of political asylum could never be raised under that sub-section; it could only be so raised when the appellant could identify a different country to which he said he should be removed rather than to that named in the directions. (ii) The Tribunal were correct in ruling that neither they nor an adjudicator had jurisdiction to reverse removal directions given by the Secretary of State on any grounds other than those relating to destination. (iii) Where a deportation order was not issued on the recommendation of a court it was perfectly proper, on appeal against the making of the order, to argue that the appellant was entitled to political asylum.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Enwia [1983] 2 All ER 1045, [1983] Imm AR 40 CA. R v Nazari [1980] 1 WLR 1366 CA (Cr Div). Ali v Immigration Appeal Tribunal and others [1973] Imm AR 33. R v Chief Immigration Officer ex parte Bibi [1976] 1 WLR 979, CA. Garland v British Rail Engineering Ltd [1982] 2 WLR 918, HL.

Counsel:

M Beloff QC and Miss J beale for the applicants; JM Laws for the respondent. PANEL: Woolf J Judgment By-1: Woolf J.

Judgment One:

Woolf J: In relation to both of these applicants a deportation order has been made and directions have been given for their removal to Sri Lanka. In each case, the applicants wished to raise before an adjudicator and before the Immigration Appeal Tribunal that the directions that were made should not have been made because they were entitled to and should have been granted political asylum. The applicants are Tamils, and they complain that if they went back to Sri Lanka they would be subject to arrest and ill-treatment. I am concerned only with the points of law which have been argued before me and, therefore, I do not go into the facts. I am not in any way concerned with the merits of the contentions put forward by the applicants and I make no comment about them. These cases do, however, raise an issue of some considerable general public importance. Although there are only two cases before this court, the tribunal in fact heard fourteen cases, all at the same time, in respect of which they gave their decision on 18 November 1982. Before the tribunal, the United Nations High Commissioner for Refugees was represented by Mr Landau, who had been joined as a party to the proceedings under rule 7(3) of the Immigration Appeals Procedure Rules, 1972. He advanced arguments that the applicants sought to raise in order to establish that they were persons who were entitled to political asylum and were, therefore, persons in respect of whom no directions should be made. So far as the two cases that are before me are concerned, the only material distinction is that in the case of Mr Murugandarajah the situation was that he was found guity by a magistrates' court of an offence under the Immigration Act of overstaying, contrary to the provisions of section 24(1)(b)(i). He was convicted of that offence and sentenced to a fine of @70 or fourteen days' imprisonment with a recommendation for deportation; whereas the other applicant was not so convicted, but he decided not to appeal against the deportation order. He first raised the points that he now seeks to rely upon when directions were made for his removal. It is important to appreciate the distinction between the two sets of procedures which are provided for in the Immigration Act. In a case where there is no recommendation by a criminal court -- what I will call, for the purposes of this case, civil deportation -- first of all there has to be a decision of the Secretary of State to make the deportation order and notice of that decision has to be given to the person concerned. That has to be followed by the deportation order and then there is a third stage where directions for removal are given. In the case where there is a conviction and a recommendation for deportation, there is no need for the stage involving a decision by the Secretary of State to make a deportation order which has to be notified to the individual concerned. The recommendation is followed by a decision by the Minister and that is then followed by directions. I am not concerned for present purposes to deal with the question of whether or not it is possible to give directions at the same time as making a deportation order. It is sufficient for my purposes if I record that it is accepted by counsel on behalf of the tribunal that directions cannot precede the making of the deportation order. The Immigration Act, 1971, as is well known, contains a complex code with regard to appeals from an adjudicator to tribunals and, in order to understand the issues in this case, it is necessary to refer to that code. A good starting point is section 17, which contains the provisions of the Act with which I am directly concerned. Section 17 of the Act reads as follows: "(1) Subject to the provisions of this Part of this Act, where directions are given under this Act for a person's removal from the United Kingdom either (a) on his being refused leave to enter; or (b) on a deportation order being made against him; or (c) on his having entered the United Kingdom in breach of a deportation order; he may appeal to an adjudicator against the directions on the ground that he ought to be removed (if at all) to a different country or territory specified by him. (2) Where a person appeals under section 13(1) above on being refused leave to enter the United Kingdom, and either (a) before he does so, directions have been given for his removal from the United Kingdom to any country or territory; or (b) before or after he does so, the Secretary of State or an immigration officer serves on him notice that any directions which may be given for his removal by virtue of the refusal will be for his removal to a country or territory or one of several countries or territories specified in the notice; then he may on that appeal object to the country or territory to which he would be removed in pursuance of the directions, or to that specified in the notice (or to one or more of those specified), and claim that he ought to be removed (if at all) to a different country or territory specified by him. (3) Where a person appeals under section 15 above against a decision to make a deportation order against him, and before or after he does so the Secretary of State serves on him notice that any directions which may be given for his removal by virtue of the deportation order will be for his removal to a country or territory or one of several countries or territories specified in the notice, then he may on that appeal object to the country or territory specified in the notice (or to one or more of those specified), and claim that he ought to be removed (if at all) to a different country or territory specified by him. (4) Where by virtue of subsection (2) or (3) above a person is able to object to a country or territory on an appeal under section 13(1) or 15, and either he does not object to it on that appeal or his objection to it on that appeal is not sustained, then he shall not be entitled to appeal under this section against any directions subsequently given by virtue of the refusal or order in question, if their effect will be his removal to that country or territory. (5) A person shall not be entitled to appeal under this section against any directions given on his being refused leave to enter the United Kingdom, unless either he is also appealing under section 13(1) against the decision that he requires leave to enter or he was refused leave at a port of entry and at a time when he held a current entry clearance or was a person named in a current work permit." In addition to the right of appeal referred to in section 17, which deals specifically with the directions given for removal of a person in respect of whom a deportation order has been made, there is a right of appeal contained in section 13(1), whereby a person who is refused leave to enter the United Kingdom may appeal to an adjudicator against the decision that he be required to leave or against the refusal of leave. Subsection (3) contains the provision that the person shall not be entitled to appeal against the refusal of leave to enter so long as he is in the United Kingdom, unless he was refused leave at a port of entry, at a time when he held a current entry clearance, or he is a person named in a current work permit. However, the fact that the person who has the right of appeal cannot normally appeal in the United Kingdom substantially reduces the efficacy of the right to appeal under section 13. Section 14(1) contains the right to appeal against conditions which are placed upon a person's leave when he applies to vary that leave. There is also a right of appeal against a refusal to vary an existing leave. The qualification on that right of appeal is contained in section 14(3) since that subsection gives the Secertary of State the power to certify that an appellant's departure from the United Kingdom would be "conducive to the public good, as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature, or the decision questioned by the appeal was taken on that ground by the Secretary of State". In those circumstances, there is no right of appeal. Section 15(1) provides a right of appeal against a decision of the Secretary of State to make a civil deportation order, or a refusal by the Secretary of State to revoke any deportation order. By section 15(3) a person "shall not be entitled to appeal against a decision to make a deportation order against him if the ground of the decision was that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature". Finally, it is necessary to look at section 16, which deals, like section 17, with directions for removal. It gives a limited right of appeal in subsection (1), where removal directions have been given on the ground that he is an illegal entrant, or on the ground that he has entered the United Kingdom in breach of a deportation order, or under the special powers conferred by Schedule 2 of the Act in relation to the crew of a ship or aircraft. But his rights of appeal are confined to situations where, on the facts of his case, there was in law no power to give the directions on the ground on which they were given. Furthermore, there is no right of appeal under the section so long as the person concerned is in the United Kingdom, unless he is appealing against directions given by virtue of a deportation order and is appealing on the ground that he is not the person named in the order. It is specifically provided, in subsection (3), that appellants under section 17 against directions given by virtue of a deportation order "shall not be allowed to dispute the original validity of that order". There is, however, no equivalent provision to section 16(3) in section 17 of the Act. I have referred in some detail to those provisions dealing with appeals because both the adjudicator and the tribunal depend on those provisions for their jurisdiction. It is to be noted that Parliament has taken some care expressly to limit matters which are not to be considered by an adjudicator or a tribunal under the appeal provisions. It is not disputed by counsel on behalf of the tribunal that in the case of a civil deportation order it would be perfectly proper for an appellant to argue on an appeal against the making of that deportation order -- indeed the same would apply in the case of a decision to make a deportation order -- that it would be inappropriate to make a deportation order because he is a person who is entitled to political asylum. The person concerned could, as part of that argument, say that if a deportation order was made, the consequences, if it was to be executed by directions being given, would be to return him to the country from which he originated which would mean that he would be subject to political persecution. That is significant because it recognizes that in relation to civil deportation orders the adjudicator and the tribunal have some jurisdiction to review a decision of the Secretary of State which may have, as part of its decision, taken into consideration the risk of potential prosecutions and come to a conclusion which could be different from that of the Secretary of State. This means that so far as matters of political asylum are concerned, they are not one of the areas in respect of which an adjudicator or a tribunal has no right to question the exercise of the Secretary of State's discretion. The argument of Mr Beloff for the applicants is that there is jurisdiction under section 17(1) in the tribunal and the adjudicator to consider matters of political asylum when directions are made is put primariliy in this way. First of all, it is submitted that the most appropriate time to raise points of this nature is after directions for removal have been made, because then, for the first time, the Secretary of State is indicating the country to which the individual is to be removed. Theoretically, as was made clear by the Court of Appeal in the recent case of R v Immigration Appeal Tribunal, ex parte Enwia, [1983] 2 All ER 1045, the point, as I have already stated, could be raised at an earlier stage. But, I agree that the most appropriate time for the matter to be raised would be not when the deportation order is made, but at the later stage. Mr Beloff then goes on to submit that if there is such right of appeal, the effect of the appeal being allowed on this ground does not affect the validity of the deportation order itself, but only affects the direction for removal; therefore, it only has the result of interfering with normal immigration procedures to the extent which is necessary to give effect to the obligations of the United Kingdom under the Convention of Human Rights to recognize the question of an individual's claim to political asylum. Mr Beloff also submits that at least the wording of section 17(1), and in particular the wording that "he may appeal to an adjudicator against the directions on the ground that he ought to be removed (if at all) to a different country or territory specified by him", on its literal interpretation and because of the words "if at all" in parenthesis, are capable, if they do not in fact require, the question of whether a person should be removed at all to be considered by the appellate tribunal. Mr Beloff relies on the anomalous result to which I have already by implication referred, and points out that if his interpretation was followed one would not create a situation in which a person who is convicted of what may be purely an immigration offence of overstaying, (as occurred in the case of one of these applicants) is deprived of having any opportunity of putting before any independent body his arguments with regard to political asylum. In support of that contention, Mr Beloff relies on a decision of the Court of Appeal (Criminal Division) in R v Nazari, [1980] 1 WLR 1366, where the court, in a judgment delivered by Lawton, LJ, made it quite clear that questions of this sort should not be gone into by the criminal courts, nor taken into account in making their recommendation for deportation, but left to the Secretary of State when he determines whether or not to make a deportation order. The good sense of the approach laid down by the Court of Appeal is obvious. It would be highly undesirable, if not impossible, for the ordinary criminal courts to consider matters such as political asylum in the course of dealing with criminal offences. Mr Beloff contrasts the language of section 17 with the language of the equivalent section of the 1969 Act, in which the words "if at all" did not appear. He submits that there has been a deliberate change made by Parliament as to the wording of he Act, the obvious reason for that being in order to enable a right of appeal to be exercised under section 17(1) in relation to the question of whether or not any removal directions should be given. There are also other arguments, which were advanced before the tribunal, on which Mr Beloff relies. However, he did not make any submissions in support of those other arguments before me, but merely indicated that he was not abandoning them. I understand why Mr Beloff, with his normal good sense, restricted himself in that way. With respect to those arguments, it seems to me that in each case there is the answer that the effect of the interpretation of the provisions contained in section 17(1) which is relied upon by the tribunal does not mean that the question of political asylum can never be raised under that subsection; the effect is that it can only be raised when the appellant can identify a different country to the country which is referred to by the Secretary of State to which he is saying he should be removed. Having considered those arguments of Mr Beloff, my general conclusion is that it woud be highly desirable if it were possible to interpret the provisions contained in section 17(1) in the way in which Mr Beloff contends. It seems to me that there would be substantial advantages in doing so: it would avoid the anomaly to which he has made reference; it would certainly lead to a situation where it could clearly be seen that this country, in relation to its appellate code for dealing with immigrants, was observing its international obligations; and what is more, it would enable a matter of very considerable importance in the world today to be properly considered by an independent body which would result, in my view, in a situation which would accord with what those responsible for the administration of immigration legislation would like to see. However, it is necessary to see whether or not such an interpretation is in fact appropriate, having regard to the language of section 17(1). In coming to my answer I start off, as indeed did the tribunal, by reading sectin 17(1) in the way in which it would be read if the words in parenthesis did not appear. If those words did not appear, it would be quite clear that an appeal could only be made on the ground that the person concerned ought to be removed to a different country or territory specified by him. I agree with the tribunal that it would be a very remarkable way in which to introduce a wider ground of appeal than that which would otherwise exist to insert merely the words "if at all" in parenthesis when specifying a ground of the sort which is indicated in section 17(1). Furthermore, when section 17(1) is compared with 17(2) and (3), one sees the same words in parenthesis in those subsections. In each of those cases there is a reference to the other rights of appeal, the rights of appeal under sections 13(1) and 15. In the case of section 17(2), the wider matters would be dealt with not on a section 17 appeal, but under a section 13 appeal, to which reference is made and, in the case of subsection (3), on an appeal under section 15. If there was no right of appeal under either sections 13(1) or 15, under the limiting provisions to which I have made reference, the effect would be that the provisions of subsections (2) and (3) could not apply at all. I then look at the provisions of the Act which were replaced by the Act of 1971. In doing so, I approach the matter with a considerable degree of caution because the Immigration Act, 1971 was not even a consolidating Act. Quite clearly, the language dealing with the same sort of ground of appeal is very different indeed. Subsection 5(3) of the 1969 Immigration Appeals Act reads:

"Subject to subsection (4) of this section and to the other provisions of this Part of this Act, where directions are given for the removal of a person from the United Kingdom he may appeal to an adjudicator against the giving of the directions on the ground that he ought not to be removed to the country or territory to which he would be removed if the directions were carried out."

Although I agree with Mr Beloff that the words "if the directions were carried out" appear in subsection (3), which is the predecessor of section 17(1), as part of the identification of the country concerned, nonetheless, when one sees the terms of that subsection, one can well understand that because the words "if the directions were carried out" do not appear in section 17(1), the draftsman of that subsection could well have decided to put in the words "if at all", because although a person is arguing that he should not be removed to a particular country, it is no doubt part of his contention that he does not want to leave the country at all. If he was prepared to leave, there would be no need to rely on the extensive deportation machinery. In relation to the 1969 Act, after the 1971 Act had been passed, there was clear authority in the Court of Appeal in the case of Ali v Immigration Appeal Tribunal and Others, [1973] Imm AR 33, to the effect that the sort of point that the present applicants wish to raise could not be raised on an appeal under the previous statutory provisions. So, if Mr Beloff is right, the words in parenthesis, "if at all", had the effect of changing the law from what it had been under the 1969 Act. The decision that I have come to reluctantly is that Mr Beloff's submissions are not correct. The conventions which he relies on are not part of English domestic law. While it is perfectly proper to have regard to those conventions where the situation is one in which there is ambiguity or doubt, as is indicated by the judgment of Geoffrey Lane LJ (as he then was) in the case of R v Chief Immigration Officer, ex parte Bibi, [1976] 1 WLR 979 and as is indicated by Lord Diplock in the House of Lords case of Garland v British Rail Engineering Ltd, [1982] 2 WLR 918. I find that the words here are so clear that it would be wrong, on the strength of the conventions alone, to come to a different conclusion from that which was argued for by Mr Laws. In saying that, it should not be taken that I am authoritatively deciding that such an interpretation would be contrary to the conventions. I say no more than it would not be as clearly in accord with the conventions, while Mr Laws submits that it is not out of accord with the conventions. However, having regard to the conclusions to which I have come, it is not necessary for me to make a final decision on that matter. It follows, therefore, that these applications should fail. One is conscious in this case that, as time has elapsed while the matter of principle has been ventilated, the political situations may have changed. Without therefore giving any directions, I can only say that it may be in these cases that further consideration would be appropriate by the Secretary of State, having regard to the change of circumstances which may have occurred since the matter was the subject of directions for removal, which ultimately came before the tribunal on 18 November, 1982.

DISPOSITION:

Application refused. By judgment delivered 16 July 1984 the Court of Appeal affirmed the decision of Woolf J and dismissed both appellants' appeals.

SOLICITORS:

Bates Wells and Braithwaite; Treasury Solicitor.

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