R v. Immigration Appeal Tribunal, Ex Parte Abed El Na By Mohammed El Nashouky El Hassanin

R v IMMIGRATION APPEAL TRIBUNAL Ex Parte ABED EL NA By MOHAMMED EL NASHOUKY EL HASSANIN

Queen's Bench Division

[1985] Imm AR 206

Hearing Date: 16 October 1985

16 October 1985

Index Terms:

Deportation --overstayer -- marriage after date of decision to initiate deportation proceedings -- marriage unknown to Secretary of State -- whether Tribunal and adjudicator correct to exclude consideration of compassionate circumstances when unknown to Secretary of State -- Immigration Act 1971 s 3 19, 20: HC 80, paras 40, 42: HC 82 paras 47, 49: HC 66 paras 154, 156, 158.

Held:

The applicant was a citizen of Egypt who overstayed his leave to remain in the United Kingdom. The Secretary of State decided to initiate deportation proceedings against him pursuant to s 3(5)(a) of the Immigration Act 1971. Unbeknown to the Secretary of State the applicant had married. The Secretary of State at the date of decision had only known of an irregular relationship with a Moroccan friend. When the matter came before the Tribunal there was a child of the union and the couple were also looking after the young daughter of the wife's deceased sister. That Tribunal declined to consider the post decision marital and domestic circumstnces of the appellant as compassionate circumstances, those being factors unknown to the Secretary of State. There was also before the Tribunal a claim for political asylum, but that was not pursued in the Divisional Court. Held: The Tribunal had correctly interpreted the law in declining to take into account the facts not known to the Secretary of State at the date of decision to initiate deportation proceedings.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Kotecha [1982] Imm AR 88. R v Immigration Appeal Tribunal ex parte Jayantha Weerasuriya [1982] Imm AR 23. Ramjaun v The Secretary of State for the Home Department (TH/117681/83) (3052) unreported. Azizur Rahman and Luthfa Rahman v The Secretary of State for the Home Department (C A 18 July 1985) unreported. Alvarellos (TH/133355/84) unreported.

Counsel:

N Blake for the applicant; C Symons for the respondent PANEL: Mann J

Judgment One:

MANN J: There is before the court an application for judicial review. Leave to move was given by Lloyd J, as he then was, on 2 November 1984. The applicant is Abed El Naby Mohammed El Nashouky El Hassanin. He is an Egyptian citizen. The respondent is the Immigration Appeal Tribunal. The decision in respect of which relief is sought is a decision of the Tribunal dated 21 June 1984 which dismissed an appeal from a decision of an adjudicator in which he, in turn, dismissed the applicant's appeal against a decision of the Home Secretary dated 2 February 1983 to deport the applicant. The facts can be shortly stated. The applicant arrived at Heathrow on 21 August 1979. He was granted leave to enter for one month as a visitor. That leave was subsequently extended to 31 December 1979. The applicant overstayed his leave. Nothing was heard of or from him until 10 April 1981 when he applied for political asylum. In December 1981 he was interviewed concerning his application. In the course of that interview, the interviewing officer asked about he applicant's current circumstances in the United Kingdom. The response was that he shared one room with a Moroccan friend. The claim for asylum was rejected on 8 March 1982. On 2 February 1983 the Secretary of State decided to deport the applicant on the basis that he had overstayed the period of his leave to enter. (See the Immigration Act 1971 section 3(5)(a). The applicant appealed to an adjudicator as he was entitled so to do by reason of section 15(1)(a) of the Act of 1971. The appeal was dismissed on 21 December 1983. The applicant further appealed to the Immigration Appeal Tribunal, having first received the necessary leave on 7 February 1984. The appeal was heard on 16 May 1984 and the determination of dismissal was dated 21 June 1984. It is that determination in respect of which relief is now sought. Before I refer to the grounds of appeal and the reasons for dismissal of the appeal, I should state that in April 1982 the applicant married the Moroccan friend to whom I have referred. Her first name is Latifa. Latifa had a sister who died in 1979. The sister had a daughter whose first name is Nisrine and who was born in january 1978. That child returned to this country from Morocco in August 1982. Since then, she has been cared for by the applicant and his wife. Nisrine attends a primary school in the London Borough of Brent and has done so since 16 September 1982. The head teacher has written on 9 March 1983 that "it would be more than unkind to uproot Nisrine from her new found security after the traumas of earlier years". In addition to their responsibility for Nisrine, the applicant and Latifa have a child of their own who was born on 23 March 1983. The case of the applicant before the Immigration Appeal Tribunal was described by them as follows:

"The case for the appellant divided into two separate but not, in one rspect, unconnected limbs. Firstly it was claimed that he had a well-founded fear of persecution if he were deported to his own country, Egypt. If the appeal did not succeed on that basis, then, it wasd claimed, there were compassionate circumstances which outweighed the public interests which would be served by making a deportation order."

The first of these two limbs was rejected in these terms: "We do not accept that the appellant has any justification for claiming that he has a well-founded fear of persecution or that there are reasonable grounds for his claiming on that basis, political asylum, in the United Kingdom." Mr Blake, who appears for the applicant, does not complain of that conclusion in this court. He could not do so. The second limb was expressed by the tribunal as follows:

"We turn to the second basis on which this appeal was conducted before us: that the compassionate circumstances of the case outweigh the public interest that would be served by the deportation order that the Secretary of State is minded to make. The grounds in that regard were submitted as: '2. In all the relevant and compassionate circumstances of the case the proper course was to allow the appeal, in particular, because he failed to give sufficient weight to the evidence that: (a) by reason of the matters at 1(a) to (1) above, life will be particularly difficult and unsettled for the appellant and his family if they have to go to Egypt; (b) the appellant is married to a woman who is settled in the UK; (c) the appellant has a responsibility for two small children who are both British citizens; and (d) the ltitle girl, Nisrine, has had a distressing and unsettled childhood and requires stability."

The reference to "matters at 1(a) to (1) above" relates to various matters which were prayed in aid in regard to the claim for asymlum. They are matters relating to what might occur to the applicant if he were returned to Egypt. As to the second limb, the tribunal said: "As to the first ground, we do not regard the consequences which may flow from the appellant's voluntary conduct in Iraq as constituting compassionate circumstances within the meaning of the relevant paragraph of HC 66. As to the other matters, they all relate . . . to the appellant's association with, and subsequent marriage to a Moroccan citizen resident in the United Kingdom. In forming that attachment and relationship, the appellant has assumed responsibility for two young children. One is a child of the marriage. The other is the daughter of the appellant's wife's deceased sister . . .

"It may be that, as was submitted to us, after a sad and disrupted period in the past, the little girl and her mother have now found a stable family relationship through the marriage to the appellant. These facts, which were not known to the Secretary of State at the date of his decision, are matters which we are precluded from taking into consideration: see Ramjaun. All that was known to the Secretary of State was that the appellant had some relationship with a Moroccan friend. Even were these factors before us, we would not, in the circumstances generally be inclined to say that they constituted compassionate circumstances that outweighed the public interest served by enforcing the proposed order. The appellant has long overstayed his leave which, by one device or another, he has sought to have extended. The compassionate circumstances put to us have arisen late in what we see as a prolonged attempt on one basis or another to circumvent immigration control."

The attack upon the decision of the tribunal focuses upon two matters: first, that it was wrong to say that "voluntary conduct" could not constitute compassionate circumstances; and second, that it is wrong to exclude from consideration facts which were extant at the date of the decision of the Secretary of State to make a deportation order but which were unknown to him. In particular, it was wrong not to take into account the matters concerning Latifa and the adoption of the responsibility for Nisrine: The first assault upon the decision is peculiar to the circumstances of the instant case. The second assault has a general importance in regard to deportation cases. Because of its general importance, I take it first. The provisions relevant to the determination of this point are to be found in the Act of 1971 and in the relevant Statement of Changes in Immigration Rules dated 6 December 1982. That statement is HC 66. The statutory provisions which are germane are section 19(1) which provides, so far as is material: ". . . 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 excercise of a discretion by the Secretary of State or an officer, that the descretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal. Section 19(2) provides, so far as is material:

"For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based . . ."

Section 20(1) provides:

"Subject to any requirement of rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator."

The relevant provisions in HC 66 are as follows. Rule 154:

"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."

Rule 156 provides, under the heading "Deportation following a conviction":

"In considering whether to give effect to a recommendation for deportation made by a court on conviction, the Secretary of State will take into account every relevant factor known to him, including: age; length of residence in the United Kingdom; strength of connections with the United Kingdom; personal history, including character, conduct and employment record; domestic circumstances; the nature of the offence of which the person was convicted; previous criminal record; compassionate circumstances; any representations received on the person's behalf."

Rule 158 provides, under the heading "Deportation for breach of conditions or unauthorised stay:

"Deportation will normally be the proper course where the person has failed to comply with or has contravened a condition or has remained without authorisation. Full account is to be taken of all the relevant circumstances known to the Secretary of State, including those listed in pargraph 156, before a decision is reached."

I need not read further. The words "known to him" and the words "known to the Secretary of State" were introduced into the rules in February 1980. They had not previously occurred. It is established that an adjudicator (and hence, also the Tribunal) must not have regard to facts occurring after the date of the Secretary of State's decision. That was so held by Webster J in R v Immigration Appeal Tribunal ex parte Jayantha Weerasuriya [1982] Imm AR 23. The learned judge said at page 31 (and I omit for the moment certain words): "Mr Law's submission is to the contrary effect and it is that . . . an appellate tribunal . . . may not take into account evidence of any fact which was not in existence at the date when the Secretary of State made his decision. He relies, primarily as matters of construction, on the use of the past tense in section 19(1)(a)(i) and (ii); and on the words in (ii), 'should have been exercised differently'. "If it were to be purely a question of construction I would be persuaded, I think, by that argument, namely that those words which I have just quoted would, if there were no other assistance to be gained as to the answers to this question, be determinant of it in Mr Laws' favour. But it seems to me that there are other considerations which reinforce that conclusion.

"The decision which is effectively under appeal is the decision of the Secretary of State, that is to say an administrative decision. In decisions on applications for judicial review of administrative decisions it has often been stated that the function of the court is not to substitute its own decision for the decision of the department or tribunal under reveiw. Of course it is not possible to apply that principle directly to the appellate structure which is attached to the Secretary of State's decision in this case and in similar cases; but it is, as it seems to me, necessary to look at that appellate structure in order to ask oneself the question whether that appellate structure has to be regarded as an extension of the original administrative decision-making function or whether it is to be regarded as simply a process for enabling that decision to be reviewed. As it seems to me it falls into the latter category rather than into the former category. The appellate tribunals are provided for in the Fifth Schedule to the 1971 Act. I need say no more than that there is no indication anywhere in that Schedule that those Tribunals are vested with any of the administrative powers of functions of the Secretary of State or his Department."

The learned judge's observations which I have read were endorsed in terms by the Court of Appeal in R v Immigration Appeal Tribunal, ex parte Kotecha [1982] Imm Ar 88 at page 93. It seemed to have been conceded before Webster J that facts extant at the time of the decision to deport could be taken into account by the appellate tribunals even though those facts were unknown to the Secretary of State at the time of his decision. Thus at page 31, it is said without elaboration "it is common ground that the appellant tribunal may take into account evidence which was not available at an earlier stage of the proceedings in question". The point which I have to consider in regard to deportation procedures was, thus, apparently not argued. In this case, the tribunal relied upon its own previous decision in Ramjaun v The Secretary of State for the Home Department (1984) unreported. The Tribunal there said, after referring to certain matters of fact:

"However these were matters which were not known to the Secretary of State when he reached his decision on 18 November 1983. They were facts which were not known to the Secretary of State because the appellant had (as he now admits) deliberately concealed them from him. Although there is authority for holding that facts in existence at the time a decision is taken can properly be taken into account by the appellate authorities although they were not known to the Secretary of State or entry clearance officer at the time of the refusal, such cases almost invariably involve facts which have subsequently come to light and of which the Secretary of State or entry clearance officer was unaware due to no fault of the appellant. The words 'known to the Secretary of State' in the rules relating to deportation were first included in HC 394 which came into effect in February 1980. They were not included in the earlier rules. In our opinion they mean what they say, and the rules, whatever their exact status may be, are binding upon this Tribunal by virtue of section 19 of the Immigration Act."

In the passage which I have just read, the Tribunal seems to be isolating the deportation case from entry clearance and leave cases by reference to the new and introduced words. The Tribunal's decision was not followed in Alvarellos v The Secretary of State for the Home Department (1985) unreported. In that case, Mr V Callender (the adjudicator) said, after referring to Ramjaun and other cases: "Were I not able to offer an alternative construction of the words 'known to the Secretary of State' I would not feel justified in considering a departure from the interpretation that has been applied thus far. But there is an alternative construction of those words, and one which in my view does not create inconsistency between paragraph 154 on the one hand and paragraphs 156 and 158 on the other. Nor does it create a situation whereby, if potentially important compassionate circumstances which were in existence at the time of decision have not been made known to the Secretary of State, the only way in which those compassionate circumstances can be taken into account would be by the absolute and unappealable exercise of his discretion by the Secretary of State after an appeal against the decision to deport had been unsuccessful. "As was stated in Ramjaun, these words were first introduced in the rules relating to deportation in HC 394 in February 1980. The previous rules, which made no reference to the knowledge of the Secretary of State at the time of decision, were HC 80, paragraphs 40 and 42, and HC 82, paragraphs 47 and 49. It is in my opinion arguable that those paragraphs in HC 80 and 82 could have been construed so as to place upon the Secretary of State the obligations and necessity to enquire into and ascertain details of all the factors listed, namely age, length of residence in the UK, strength of connection with the UK, etc etc, and that this process might well have occasioned serious delay in the making of a decision to deport. The inclusion in HC 394 of the reference to the knowledge of the Secretary of State at the date of decision has the effect of relieving the Secretary of State from an obligation which had formerly lain on him to inform himself as to all these factors before he could say that he had fully complied with the rules when he made a decision to deport. Read in this way, there is no conflict with paragraph 154; there is no confict with the principle of determining an appeal by reference to the factual situation which existed at the date of the decision; an appellant who has failed to keep the Secretary of State advised of every single factor concerning his life is not denied the opportunity for the full circumstances of his case to be weighed by an independent appellate authority." Mr Blake has submitted that Mr Callender was right not to follow Ramjaun. What has to be considered by an appellate tribunal, he said, are the compassionate circumstances of the case extant on the date of the decision whether known to the Secretary of State or not. See Rule 154. The references in later rules to "known to him" or "known to the Secretary of State" are references, it is submitted, designed to protect the Secretary of State from a direct attack on the basis that he has not discovered and taken into account a relevant consideration. They are not references designed to limit an appellate tribunal's examination of what is extant at the time of the Secretary of State's decision. Mr Blake points to the consequences if such were not the case. For example, a preimium would be put upon the department failing to make inquiries and, what of the situation where the relevant material is lost in transit to the Secretary of State? The difficulty which confronts Mr Blake is that a decision to make a deportation order is an administrative decision based upon factors and circumstances known to the Secretary of State. The function of an adjudicator, and hence that of a tribunal (see section 20(1) is to review that decision in an appellate capacity. It is not the function to take a new administrative decision upon the basis of factors and circumstances which, although extant, were unknown to the Secretary of State. The reasoning of Webster J in ex parte Weerasuriya, as subseuqently approved by the Court of Appeal, seems as applicable to the case before me as it was to the case before him, despite the concession which he recorded. Any argument based upon "circumstances of the case", as referred to in Rule 154, is I think adequately met by the consideration that the rule is a general proposition, which must be read as subject of the more detailed exposition in subsequent rules, and in particular, so far as the present case is concerned, to Rule 158 with its reference to "all the relevant circumstances known to the Secretary of State". In my judgment, the Immigration Appeal Tribunal were right to exclude the applicant's marriage and the position of Nisrine from their consideration of compassionate circumstances. The fact that the Immigration Appeal Tribunal may not have heard argument upon the correctness of Ramjaun, as is asserted in the grounds on which relief is sought, does not seem to me to be material. I have heard such argument and have upheld the correctness of Ramjaun. I add this, Mr Symons, for the tribunal, referred me to the Court of Appeal decision in Rahman v The Secretary of State for the Home Department [1985] unreported. At page 4 of the transcript in that case, Lawton LJ who delivered the leading judgment, said:

"The next question is: Did the Secretary of State and the adjudicator take into account all the matters which should have been taken into account? Counsel on behalf of the appellants has submitted that the Secretary of State did not take into account the fact that the appellant wife's parents were settled in this country lawfully and they had sufficient means to support both appellants, and the children of the marriage, and were willing to do so. It was pointed out, as is the fact, that in the Secretary of State's explanatory statements there is no reference at all to that factor. But as Dillon LJ remarked to counsel dduring the course of his submissions, it was for the appellants to show, first, that the factor actually existed and, secondly, that the Secretary of State knew of it. There is no evidence whatsoever that the Secretary of State knew that the appellant wife's parents were settled in this country and were willing to support them. In fact, the evidence goes the other way."

I regard that passage, prefaced as it is by the question "Did the Secretary of State and the adjudicator take into account all the matters which should have been taken into account" as supporting the view which I have expressed. Had I reached a different conclusion upon the exclusion of facts, I would have been loathe, as a matter of discretion, to remit the matter for reconsideration by the tribunal. The concluding words of the decision which I have quoted are, I think, plain in intention albeit the phrase "in the circumstances generally be inclined to say" is perhaps less than direct. The plain intention is to state that the marriage and Nisrine, even if taken into account, would hve made no difference. They are, certainly as the tribunal observed, late in the applicant's immigration history. There remains the point that the tribunal were wrong in stating that voluntary conduct is irrelevant in regard to considerations of compassion. The voluntary conduct in this case seems to have been that of going to Iraq and then remaining there in employment after a rupture in diplomatic relations between Iraq and Egypt. I can see here no point of law. The tribunal said -- and I repeat -- " . . . we do not regard the consequences which may flow from the appellant's voluntary conduct in Iraq as constituting compassionate circumstances within the meaning of the relevant paragraph of HC 66." The conduct of the applicant was voluntary and was aptly described. The tribunal are, in the passage to which I have referred, merely saying that the consequences flowing do not in this case constitute compassionate circumstances. They are perfectly entitled so to find and I see here no arguable poiont of law. For the reasons I have endeavoured to express, this application is dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Brent Community Law Centre; Treasury Solicitor.

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