R v. Secretary of State for the Home Department, Ex parte Mohamed Mohamed Daoud Draz

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT Ex Parte MOHAMED MOHAMED DAOUD DRAZ

Queen's Bench Division

[1985] Imm AR 215

Hearing Date: 4 November 1985

4 November 1985

Index Terms:

Deportation -- whther there can be an out of time appeal against a decision to initiate deportation proceedings, after the date on which the deportation order has been signed -- where a decision to deport and a deportation order can be valid if never delivered personally to or brought to the notice of the person affected: Immigration Appeals (Procedure) Rules 1972: rule 5(4)

Practice and Procedure -- service of documents -- whether the deeming provisions of the Interpretation Act 1978 apply where there is evidence to show that that which is thereby deemed to have occurred did not in fact occur: Immigration Appeals (Notices) Regulations 1972, regulations 2(3), 3, 6: Interpretation Act 1978, s 7.

Held:

The applicant was admitted to the United Kingdom as a visitor. He was subsequently refused an extension of his leave to remain. He appealed. Notice of the Hearing was sent to the address he had entered on his notice of appeal: it was returned to the Home Office undelivered. The appeal was heard in his absence and dismissed. Notice of that determination was sent to the same address and was likewise returned undelivered. In due course the Home Office notice advising him to leave the country was also returned undelivered. There was evidence that the applicant was living at the address to which these notices were sent at the material times. The applicant then moved. He did not advise the Home Office of his removal to another address. In due course the notice of intention to initiate deportation proceedings was sent by the Home Office to the applicant's last known address. That notice was returned to the Home Office by the postal authorities. A year later the deportation order was signed. The applicant then married a British Citizen. He then approached the Home Office. He became aware for the first time of the deportation order. He sought to appeal against the decision to initiate deportation proceedings. The Home Office maintained that he no longer had a right of appeal because under the procedure rules no rights of appeal existed where a deportation order was already in force. Judicial review was sought of the Home Office refusal to process his appeal. In the alternative it was claimed that the notice to initiate deportation proceedings was invalid because it had never been delivered to him personally or brought to his notice. Held: 1) There was no right of appeal even by way of an out of time appeal against a decision to initiate deportation proceedings after the deportation order had itself been signed. 2) The effect of the deeming provisions of the Interpretation Act 1978 (replacing the Interpretation Act 1889) which were incorporated in the Immigration Appeals (Notices) Regulations 1972 was to establish good service of documents in the circumstances to which they applied: that deemed good service was not rebutted by evidence that in fact the documents were not served on the applicant. Obiter: Any person in the position of an immigrant must know, once he makes application to the Home Office, whether it be for an extension or to exercise a right of appeal or for any other reason, an arrangement must be maintained for his receipt of any documents sent to him.

Counsel:

KS Nathan for the applicant; J Laws for the respondent PANEL: Farquharson J

Judgment One:

FARQUHARSON J: This is an application for judicial review and mandamus to the Secretary of State directing him to reconsider the appellant's request to process an out of time appeal to the adjudicator as a preliminary issue pursuant to rule 5 of the Immigration Appeals (Procedure) Rules 1972. The application made by the appellant also asks for consequential relief following on from such an order. The applicant is an Egyptian national born on 23 March 1951 and therefore is now aged 34 years. He arrived in this country first on 25 march 1978 when he had been given a one month visitor1978 when he had been given a one month visitor's permit. Subsequently that was the subject of a number of extensions and on 22 September 1978 the appellant applied to remain as a student. In due course this application, having first been granted, was the subject of a number of extensions which continued until 31 October 1979. In that same month of October 1979, on the 19th, the applicant had been arrested for a breach of his condition of entry or his leave to remain as a student in that he had taken up employment. He was convicted of this offence and the Magistrate recommended his deportation. He left this country on 30 October 1979 before the recommendation had been considered by the Secretary of State. He next appeared in this country on 4th February 1981 when he entered from Germany, having received a visitor's permit to enter this country for a period of one month. On 3 March of the same year he applied for an extension to this permit but that was refused by the Secretary of State on 27 April 1981. the applicant then filed a notice of appeal against that refusal. The notice which was given under section 14 of the Immigration Act 1971 and was dated 8 May 1981 was accordingly filed in time under the rules governing the service of notices. It is significant that the address he gave when filing his notice of appeal to the Home Office was 71 Cambridge Gardens, Ladbroke Grove, London W10. His notice was acknowledged in due course by being sent to that same address and as is the practice with regard to acknowledgements of that kind the appellant was informed he would not be required to leave the United Kingdom pending the hearing of the appeal. On 4 January 1982 notice of the hearing of that appeal was sent to 71 Cambridge Gardens by recorded delivery. It appears this is the sort of period which alapses between the service of notice and the hearing of the appeal. The date given on the notice of hearing was 5 February 1982 but in fact the notice was returned to the Home Office as undelivered. The appeal was heard by the adjudicator not on 5 February but on 3 February 1982 and was dismissed. Mr Nathan, appearing on behalf of the appellant, drew my attention to the fact that the appeal was heard on a date different from the one specified in the notice. As the appellant never in fact received the notice no injustice was done to him on that account and Mr Nathan does not seek to elevate that particular fact into any serious ground of appeal. The notice containing the adjudicator's decision as well as informing the appellant of his right to appeal against that decision was once again sent to 71 Cambridge Gardens by recorded delivery. Once again the document was returned to the Home Office as undelivered. On 10th March 1982 the Home Office served notice to leave the United Kingdom upon the appellant. That too was returned by the post office notwithstanding it had been sent by recorded delivery. As appears from the evidence filed before me the appellant was then living at that address in Cambridge Gardens and continued to do so until the month of August 1982. Nothing else followed until 23 March 1983 when the Secretary of State sent, once again by recorded delivery, to the Cambridge Gardens address a notice to the appellant of his, the Secretary of State's, decision to deport him under the provisions of section 3(5)(a) of the Immigration Act. That notice equally set out the rights of appeal to which the appellant was entitled under section 15 and 17 of that Act. By this time the appellant was no longer resident at Cambridge Gardens although the Secretary of State and his officials were totally unaware of that. In the result the appellant did not receive the notice as he did not receive the earlier documents. It was returned by the post office so it follows that the appellant's rights of appeal were not exercised. Another year passed when, on 6 March 1984, the Secretary of State made a deportation order against the appellant under section 5(1) of the Act. Although unknown to the Home Office it was the fact that a few days before, on 25 February, the applicant had married an English girl. On 20 March, although he never received the deportation order any more than he received the other documents to which I have referred, he wrote to the Home Office informing them of the fact he had married an English girl and gave his then address as 6 Russell Road, West Kensington. On 8 June both he and his wife called at the Home Office. For the first time he was told of the decision and the deportation order itself which the Home Office claimed they had served upon him. He was then informed, if the Home Office is correct, that his only right of appeal thereafter was under section 17 of the Act whereby he could seek an alteration of the place to which it was proposed to deport him. On 26 October of the same year, 1984, the appellant's solicitors wrote to the Home Office seeking to appeal against these decisions out of time, that is to say the decision to deport as well as the deportation order itself. They sought to promote this appeal under the provisions of the Immigration Appeals Rules 1972. The Home Office in due course, on 13 November 1984, replied to that application by the solicitors and pointed out there was no right to appeal under the procedural rules where a deportation order was already in force. Rule 5(4) states in terms: "No steps will be taken under this rule" (that is to say rule 5 which provides for further opportunity to appeal) "by, or in the case of, a person in respect of whom a deportation order is for the time being in force." That contention on the part of the Home Office is correct. If there was a valid deportation order in force then such an appeal as was contemplated by the appellant's solicitors was not competent. There was no power in the Secretary of State and no discretion vested in him whereby he could waive any rule or any decision by him in order to permit the appeal to take place. It follows therefore that if the present challenge, which is against that decision of 13 November 1984, is to be mounted effectively it must be on the basis that the deportation order is not a valid one. Mr Nathan faces that position and he argues that the order itself is not valid because no notice of the decision or of the fact of the order had ever been given to the appellant in the sense that it had never been delivered to him personally or brought to his attention. To consider that submission it is necessary to look at the relevant regulations, the Immigration Appeals (Notices) Regulations 1972. By regulation 2 paragraph 3 it is provided that the Intepretation Act of 1889 (which is now the Interpretation Act 1978) shall apply to the interpretation of the regulations as it applies to the interpretation of an Act of Parliament. It was giving the regulations for the purposes of that application the force of a statute. Regulation 3 of these same regulations provides: "Where any decision or action which is appealable is taken" (such as the present case) "then written notice thereof shall as soon as practicable be given in accordance with the provision of the regulations to the person in respect of whom the decision or action is taken." By paragraph 2(d) of that regulation it provides that such a notice includes a decision or action taken by the Secretary of State. So regulation 3 applies to the notice to deport as well as the earlier notice of the decision to deport. The relevant regulation concerning the service of notice is regulation 6 which says that any notice required by regulation 3 to be given to any person may be sent by post in a registered letter or by the recorded delivery service to his last known or usual place of abode. There is no question here on the evidence that the relevant documents were sent other than by recorded delivery. They are in fact exhibited to the affidavit sworn by Mr Pawsey, on behalf of the Home Office, and both the documents and the endorsed envelopes have been available to the court for inspection. There is no question that those letters were sent to the last known place of abode of the appellant, 71 Cambridge Gardens. This regulation describes the permitted mode of service under the regulations generally. What is the effect of the respondent's undoubted compliance with this rule? To see that one has to look at the Interpretation Act 1978 under the provisions of the regulations, to which I have already referred, and specifically to section 7 which provides: "Where an Act authorises or requires any document to be served by post (whether the expression 'serve' or the expression 'give' or 'send' or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." That section has two deeming provisions, one relating to effecting the service of documents and the other to the time that service is effected. In the present case we are concerned with the first of those two deeming provisions. Applying them to the facts of this case and to the regulation to which I have already adverted undoubtedly the regulations authorise service by post being the first requirement of section 7. Furthermore the method prescribed by the Act, that is to say the proper addressing and pre-payment and posting of the document, has been adopted in this case. Thirdly, no contrary intention in the regulations themselves appear so that particular proviso in section 7 does not apply. In those circumstances service of the doucment is therefore deemed to have been effected by the respondent upon the appellant. Mr Nathan however submits that although there is what one might call apparent compliance with the provisions of the regulations and of section 7 of the Interpretation Act it cannot have effect where the evidence here shows, as it does, that the documents were not received by the appellant. Mr Nathan specifically points to the provisions of the second part of section 7 of the Interpretation Act and specifically to the phrase "unless the contrary is proved". It says: " . . . the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post". the phrase "unless the contrary is proved" in that last sentence relates to the time at which the letter has in fact arrived. It must be taken as being in the ordinary course of post unless, as a matter of fact, it is shown to be otherwise. It has no bearing on the question of whether service has been effected. The purpose of section 7 of the Interpretation Act is to establish service of documents under the statute concerned whether service has been effected or not. That is the whole point of any deeming provision. It is particularly appropriate in immigration cases where some recipients may, for their own reasons, wish to avoid communication with the authorities. They may have gone to ground and it would not be right for the whole administrative process to stop until the immigrant had been discovered. Moreover, the provision in regulation 6 that the document should be sent to the "last known or usual place of abode" does protect the immigrant. Any person in the position of an immigrant must know, once he makes application to the Home Office, whether it be for an extension or to exercise a right of appeal or for any other reason, an arrangement must be maintained for his receipt of any documents sent to him. These provisions of regulation 6 and Section 7 of the Interpretation Act are consistent with the whole scheme and apparatus of the Immigration Act and rules, otherwise an immigrant would be able to avoid their implementation or the carrying out of any decision to deport him simply by avoding receipt of the necessary documents. Similar reasoning can be applied to the service of notices which are not contemplated by regulation 3, documents not directly concerned with appeals such as, in the present case, the notice of the date of the tribunal hearing. Such service is dealt with by rule 44(e) of the Immigration Appeals (Procedure) Rules 1972. I can refer to them briefly by way of illustrating the parity of reasoning that should be applied. Rule 44(1) states: "Any notice or other document required or authorised by these rules to be sent or given to any person or authority may be sent by post in a registered letter or by the recorded delivery service or delivered -- (e) in the case of a document directed to any other person to his address for service specified in the notice given under these rules or to his last known or usual place of abode." Equally, therefore, in the present case the deeming provision of the Interpretation Act, which is also incorporated in the rules to which I have just referred, would establish that service of those documents was also properly effected on the appellant. Mr Laws also argues that in any event once the Home Office has attempted to serve the relevant documents under regulation 6 of the Notices regulations and is knowingly unsuccessful, in the sense that it has received back through the post office the documents which it intended to serve upon the applicant, the Home Office or the Secretary of State can then take advantage of the provisions of regulation 3 paragraph 4 of those same 1970 Notices rules. That regulation states that it shall not be necessary for notice to be given in compliance with the provisions of paragraph 1 of regulation 3 if the officer or authority required by paragraph 2 to give it has no knowledge of whereabouts or place of abode of the person to whom it is to be given. It is argued by counsel that we have, in the present case, an attempt to comply with the regulations by serving the documents at the last known place of abode. They have not been delivered and the Home Office knows of no other place to which it properly can address the documents to ensure receipt by the appellant and therefore it is entitled to take advantage of the rule I have just referred to. Indeed, argues Mr Laws, no other specific positive step has to be taken. It is a state of affairs which brings the rule into operation. It is not necessary for me to decide whether that rule applies in the terms he has submitted to me, having regard to the decision I have made that effective service was in fact made under the deeming provisions of the Interpretation Act and under regulation 6. If that particular paragraph, paragraph 4 of regulation 3, is sought to be relied on in any case obviously it would have to be the subject of proper affidavit evidence as to the state of mind of the official who was going to rely upon it. In the light of these findings, therefore, the deportation was, in my judgment, in force when the application was made for leave to appeal against it out of time. As I indicated earlier in this judgment once that situation is established, namely the existence of a deportation order, the appeal which the appellant seeks to make is not competent under the terms of rule 5(4) of the Immigration Appeals (Procedure) Rules 1972. I had during the course of arugment canvassed with Mr Nathan the possibility of amending the terms of his application by including a prayer for certiorari to quash the deportation order itself as that was the hinge of the whole of the argument in this case and alternatively, as the deportation order followed on the finding of the adjudicator, whether a prayer for the quashing of the adjudicator's determination should similarly be included in an amended notice. In the event such an application would fail for the same reasons I have given already. In any event I am persuaded that the appellant not having had leave to apply for the review of either of those decisions it would not have been proper at this stage to grant it. For those reasons this application must fail.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Mills-Thomas & Co; Treasury Solicitor.

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