R v. Secretary of State for the Home Depatrment, Ex parte Jacqueline Therese Botta

R v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte JACQUELINE THERESE BOTTA

QUEEN'S BENCH DIVISION

[1987] Imm AR 80

Hearing Date: 17 November 1986

17 November 1986

Index Terms:

Deportation -- successful appeal against decision to initiate deportation proceedings -- whether appellant in consequence secured indefinite leave to remain in the United Kingdom.

"Ordinarily resident" -- for the purposes of registration as a British citizen -- whether there must be five years lawful residence. Immigration Act 1971, Sch 1, App A (s 5A of the British Nationality Act 1948).

Refusal of leave to enter -- assertion that the requirements of the 1971 Act were not observed -- whether an issue for the Court on judicial review -- evidence. Immigration Act 1971, Sch 2, para 6.

Held:

The applicant a citizen of Mauritius at one time enjoyed leave to remain in the United Kingdom as the spouse of an EEC worker. After he was deported, she remained in the United Kingdom. The Secretary of State initiated deportation proceedings against her as an overstayer. Her appeal against that decision was allowed by the Immigration Appeal Tribunal, following the Divisional Court Judgment in ex part Sandhu. After her appeal had been allowed that judgment was reversed by the Court of Appeal, which held that the spouse of an EEC worker had no right to remain in the United Kingdom after the deportation of the worker in question. The Secretary of State took no further proceedings against the applicant but when she left the United Kingdom and then sought to return, she was refused admission as a returning resident, she having it was maintained, no claim under the rules to settle in the United Kingdom. On application for judicial review, a number of different issues were raised. It was submitted that the Secretary of State had taken no action to quash the decision of the Tribunal and that in consequence the applicant secured a right to remain in the United Kingdom. She had, in any event the qualification, on the facts, to be registered as a British citizen. She had not, it was asserted, been served with the proper notices when she was refused admission as a returning resident. Held: 1 Her successful appeal against the decision to initiate deportation proceedings against her gave her no rights to remain permanently in the United Kingdom. The Tribunal had done no more than apply the law as it was then understood. It had in any event only found that she was not liable to be deported. That was quite different from giving her any right to remain indefinitely in the United Kingdom. 2. She had to claim to be registered as a British citizen. "Ordinarily resident" in the context of such an application meant "lawfully ordinarily resident". Following the Court of Appeal judgment she had been for part of the material qualifying period, an overstayer. Margueritte followed. 3. Whether or not, on the facts, the proper procedures had been observed when she was refused admission to the United Kingdom was not a matter for the Court. She should pursue those issues of fact through the appellate authorities, Swati followed. The Court observed that there was in any event no evidence to support the assertions made in that regard.

Cases referred to in the Judgment:

Louis Mario Margueritte v The Secretary of State for the Home Department (CA, unreported, 19 July 1982). R v The Secreatry of State for the Home Department ex parte Amarjit Singh Sandhu CA, [1983] Imm AR 61. Taj Mohd Swati v The Secretary of State for the Home Department [1986] Imm AR 88.

Counsel:

J Dowokpor for the applicant; R Ter Haar for the respondent PANEL: Russell J

Judgment One:

RUSSELL J. When leave was originally granted to move for judicial review in this case the grounds were very limited and they were supported by a very short affidavit sworn by the applicant in October 1984. As late as 30 October 1986 very substantial amendments were drafted to the grounds. No objection was taken on behalf of the respondent and the hearing of this application for judicial review has been based upon the amended grounds, of which there are now four, so there is some overlapping between one ground and another. The background to the application is prolonged in point of time and somewhat complicated. The salient facts are that the applicant is a Commonwealth citizen, having been born in Mauritius in July 1946. She was admitted to the United Kingdom on 21 July 1973. Her permission to remain here was extended until 10 December 1973. There appears to have been a further extension until July 1974 when the applicant left the United Kingdom and journeyed to Germany. There, on 7 July 1974, she married a citizen of the Federal German Republic, a man called Reinhard Botta. She remained overseas until 8 August 1974 when she returned to the United Kingdom and was admitted for a period of one month. She stayed until 8 September 1975. In May 1977, and again in June 1977, the applicant returned to the United Kingdom and was admitted as a visitor. On 21 June 1977 the period was for six months, expiring in December 1977. The applicant remained thereafter in the United Kingdom where she was joined by her husband. His activities brought him into conflict with the law and in September 1980 he was sentenced to a period of four and a half years imprisonment for serious offences of dishonesty. A recommendation that he should be deported formed part of his sentence. On 9 February 1981 the applicant was also convicted of offences of dishonesty. She was placed on probation for a period of two years. On 14 December 1981 a deportation order was made against the applicant and likewise a deportation order was made against the applicant's husband. In June 1982 the applicant's husband, at the conclusion of his sentence of imprisonment, was in fact deported pursuant to the order. The deportation order made against the applicant was made pursuant to section 3(5)(a) of the Immigration Act 1971. The Secretary of State took the view that, having been admitted to the United Kingdom on 21 June 1977 for six months for the purposes of a visit, the applicant's permitted leave had expired on 21 December 1977 and thereafter she had overstayed for a period of four years. Section 3(5)(a) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if, having limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave. It must be emphasised that deportation was sought upon that ground, and that ground alone. On 13 July 1982 an appeal against the decision to deport the applicant was dismissed by an adjudicator. the applicant appealed to the Immigration Appeal Tribunal and on 13 April 1983 her appeal was allowed. The rationale of the Immigration Appeal Tribunal's decision to allow the appeal was that the applicant's husband had entered the United Kingdom on 21 June 1977 and that he had been admitted as a member of the European Economic Community who was coming here with the intention to work. Once it was established that the applicant was the wife of an EEC national coming to the United Kingdom for employment it was accepted on all sides before the Immigration Appeal Tribunal that the applicant could not be deported under section 3(5)(a) of the 1971 Act. It is to be observed that section 3(5)(c) provides that a person who is not a British citizen shall be liable for deportation from the United Kingdom if another person to whose family he belongs is or has been ordered to be deported. The Secretary of State did not rely upon this provision although, as earlier observed, by the date of the applicant's deportation order Mr Botta had already been the subject of a deportation order himself. The decision of the Immigration Appeal Tribunal was given at a time when Comyn J had given judgment in R v The Secretary of State for the Home Department ex parte Sandhu before that case went to the Court of Appeal. The Court of Appeal decision in the case is reported at [1983] Imm AR 61. Comyn J had taken the view that a spouse of an EEC worker retained the right to remain in the United Kingdom after the departure of the worker. It was upon that basis that the Immigration Appeal Tribunal allowed the applicant's appeal. The Court of Appeal reversed the decision of Comyn J and held that no such right existed. The appeal in Sandhu's case was heard and determined after the decision of the Immigration Appeal Tribunal in the instant case. To complete the factual history, after her appeal was allowed the applicant remained in the United Kingdom until, on 2 April 1984, she asked for the return of her passport. She went to Germany on 6 April 1984 and upon her return to the United Kingdom, on 5 June 1984, she was refused leave to enter. The ground upon which she was refused leave as a returning resident was that the immigration officer was not satisfied that the applicant had settled in the United Kingdom and took the view that she did not qualify for permission under any other provision of the Immigration Rules. By this date, in 1984, the applicant had made an application, under the British Nationality Act 1981, for registration as a British citizen. That application was dated 16 March 1982. On 2 April 1984 the Secretary of State wrote to a Member of Parliament on the following terms: "On the 27th February your secretary forwarded the enclosed letter from the North Lambeth Law Centre about Mrs Therese Jacqueline Botta. Mrs Botta, who is a Mauritian national, has applied for indefinite leave to remain the in the United Kingdom and for British citizenship. "With regard to Mrs Botta's immigrartion status I should explain that subsequent to the decision of the Immigration Appeal Tribunal that Mrs Botta could not be regarded as an overstayer under the European Community law, the Court of Appeal in the case of Sandhu upheld the view that the right of a non-EEC spouse of an EEC worker to remain in the United Kingdom lapses when the EEC worker leaves the country. Mr Botta was deported from the United Kingdom in July 1982. I also understand that Mrs Botta has instituted divorce proceedings.

"Mrs Botta therefore has no right to remain in the United Kingdom as the spouse of an EEC worker. Nor does she qualify to settle here under the Immigration Rules. Her application for indefinite leave to remain in the United Kingdom falls to be refused and she will be informed of this shortly. In the circumstances Mrs Botta is not eligible to apply for British citizenship."

The applicant has not availed herself of her rights of appeal against the refusal to permit her entry in June 1984. Certainly so far as one of the amended grounds of appeal is concerned counsel for the respondent acknowledges that it raises a point of law and invites me to rule upon it. With regard to subsequent grounds first drafted in October 1986 the point is taken that this court is not the proper tribunal for the determination of factual disputes and, relying upon Swati [1986] 1 WLR 477, Mr Ter Haar submits that there are still available to this applicant avenues of appeal more appropriate to determine questions of fact than this court. In the amended grounds of appeal a number of points are taken by counsel for the applicant who has argued them at length before this court. First, it is submitted that the decision of the Immigration Appeal Tribunal not to deport the applicant was wrong in the light of the judgment of the Court of Appeal in Sandhu. The decision of the Court of Appeal had not been made at the date when the Immigration Appeal Tribunal considered the applicant's appeal. But, submits counsel for the applicant, when the decision of the Court of Appeal became known the Secretary of State took no steps to quash the decision of the Immigration Appeal Tribunal, and consequently it is suggested that decision still stands with the effect that the applicant has a right to remain in the United Kingdom for an unlimited period of time. I am quite unable to accept this submission. All that the Immigration Appeal Tribunal did in April 1983 was to decide on the state of the law, as then found by Comyn J, that the applicant could not be deported. That is quite a different concept to the right to remain indefinitely as a non-British citizen in the United Kingdom. The application before me, I remind myself, is not concerned with the deportation order but with the decision to refuse the applicant entry in June 1984. The second ground upon which counsel for the applicant relies raises an entirely different matter. It is said that the respondent was wrong to hold that this applicant did not qualify to settle in the United Kingdom under the Immigration Rules. Originally counsel for the applicant relied upon section 2(1)(c) of the Immigration Act 1971. During the course of argument he conceded that that section was inappropriate to the instant case in that it was concerned with citizens of the United Kingdom and Colonies whereas this applicant is a citizen not of a colony but of the Commonwealth. Mr Ter Haar directed my attention to what counsel for the applicant subseqently acknowledged to be the appropriate section dealing with this part of the case. It is to be found in appendix A to schedule 1 of the 1971 Act, which is headed "Provisions to have effect as section 5A of the British Nationality Act 1948". So far as it is material that section reads: "Subject to the provisions of subsections 5 and 6 below, a citizen of any country mentioned in section 1(3) of this Act" (and Mauritius is one such country) "being a person of full age and capacity, shall be entitled, on making application therefor to the Secretary of State in the prescribed manner, to be registered as a citizen of the United Kingdom and Colonies if he satisfies the Secretary of State that: . . . (b) he fulfils the condition in subsection (3) below. (2) On an application made to the Secretary of State in the prescribed manner the Secretary of State may cause to be registered as a citizen of the United Kingdom and Colonies any person of full age and capacity who satisfies the Secretary of State that . . . (c) he is of good character . . . (3) The condition that a person is required by subsection (1)(b) or 2(b) above to fulfil is that throughout the period of five years ending with the date of his application to be registered, or such shorter period so ending as the Secretary of State may in the special circumstances of any particular case accept, he has been ordinarily resident in the United Kingdom, or engaged in relevant employment, or partly the one and partly the other." The argument now advanced on behalf of the applicant is that this lady falls fairly and squarely within the provisions of subsection (3) in that she has been ordinarily resident in the United Kingdom for a period of five years ending with the date of her application to be registered. As earlier observed the material date, so far as the application to register is concerned, was 16 March 1982. Mr Dowokpor submits that, on the facts as I have related them, this applicant satisfies the test of ordinary residence throughout the period of five years immediately preceding the date of her application for registration. The answer to that submission, in my judgment, is simply that the applicant does not qualify as an ordinary resident during the material period. As to the first part of the period in 1977 the evidence discloses that the applicant was not resident in the United Kingdom at all but was abroad. As to the second part of the period I repeat that in December 1981 the applicant's husband was the subject matter of a deportation order and from the date of that deportation order he was liable to be removed from the United Kingdom. In those circumstances I take the view that the applicant lost the privilege of living with him in the United Kingdom as the spouse of an EEC worker and consequently could not be regarded, once the deportation order took effect, as being ordinarily resident here as a result of the protection she received from the residence and employment of her spouse, a worker within the EEC. In this context I was referred by counsel for the respondent to the unreported case in the Court of Appeal of Louis Mario Margueritte v The Secretary of State for the Home Department, (19 July 1982). During the course of the judgment of the Master of the Rolls, page 5, these words appear:

"The point turns on the meaning of 'ordinary resident' in these statutes. If this were an income tax case he would, I expect, be held to be ordinarily resident here. But it is not an income case. It is an immigration case. In these statutes 'ordinarily resident' means lawfully ordinarily resident here. The word 'lawfully' is often read into a statute: . . . It should be read into these statutes."

Adopting, respectfully, those words of the Master of the Rolls, I am quite unable to find in the instant case that there is any merit in ground two of the amended grounds. This applicant has not shown that she was ordinarily resident for a period of five years continously prior to 16 March 1982. Accordingly, in my judgment, her application for registration did not fall to be considered by the Secretary of State and there was nothing wrong in the view he took of the position as reflected in the letter to which I have referred written in April 1984. The grounds three four and five (as amended) can be dealt with together. Complaint is made that when the applicant returned to the United Kingdom, having spent seven weeks in Germany in 1984, the decision of the immigration officer to refuse her leave was, and is, an error of law and void ab initio, the applicant being a returning resident. Suffice it to say that my earlier observations as to the applicant's ordinary residence here disposes of ground three. As to ground four it is said that there was a failure on the part of the immigration officer to serve the applicant with a document that is referred to in paragraph 6 of the second schedule to the Immigration Act 1971. Paragraph 6 reads as follows:

"Notice of leave to enter or of refusal of leave. (1) Subject to sub-paragraph (3) below where a person examined by an immigration officer under paragraph 2 above is given a limited leave to enter the United Kingdom or is to be refused leave the notice giving or refusing leave shall be given not later than twelve hours after the conclusion of his examination (including any further examination) in pursuance of that paragraph; and if notice giving or refusing leave is not given before the end of those twelve hours he shall (if not patrial) be deemed to have been given indefinite leave to entry the United Kingdom and the immigration officer shall as soon as may be give him written notice of that leave."

Counsel for the applicant tells me that his instructions are to the effect that there was a failure to conform to the provisions of paragraph 6 in that the applicant was not given notice of a requirement to submit to further examination. That matter is not deposed to in any affidavit of the applicant nor was it raised in any shape or form in the original grounds seeking judicial review. Confronted with this allegation, however, the respondent sought an adjournment last week so that further enquiries could be made of the immigration officer. There has been produced to me this morning an affidavit from Mr Richard John Willmott, the immigration officer who dealt with the application of this particular applicant at approximately 1630 hours on 5 June 1984. Paragraph 3 of affidavit reads as follows: "I have no recollection of the interview, but it is my usual practice to serve a passenger with a form IS 81 as soon as it is obvious that further enquiries are required. This is a notice requiring a person to submit to further examination. It is my usual practice to serve this form before leaving the applicant to seek a chief immigration officer's approval either for detention or for temporary admission. As appears from the first paragraph of this affidavit, I have been an immigration officer for about 17 years. 4. It is not the practice to keep a file copy of form IS 81. However, as soon as a decision has been made either to grant a passenger temporary admission or detail him pending further consideration of his case, an entry is made in a log book entitled 'Port Record of Persons Detained on IS 81'. It is now produced and shown to me marked RJW1, a bundle containing, first, a blank form IS 81 and, secondly, a copy of an extract from the said log book containing the entry relevant to the present applicant. The entry is in my handwriting. This refers to a form IS 96 which is a notice temporarily admitting a person detained or liable to detention. At page 3 of my said exhibit there is a copy of a form IS 96 relating to the applicant and dated 5th June 1984. This records, in the first paragraph, that a notice requiring the applicant to submit to further examination was served on the applicant on 5th June 1984. 5. A record is also kept of IS 128a of, inter alia, details as to the service of a form IS 81. A copy of a form IS 128a relating to the applicant is at page 4 of exhibit RJW1. This records that form IS 81 was served by me on the applicant at 1640 hours on the 5th June 1984." I repeat there is no affidavit evidence before me from this applicant to the effect that she was not served with the appropriate form. The suggestion that she was not comes, for the first time, in the amended grounds for seeking judicial review. I accept of course that counsel's instructions are as he has indicated to this court, but the fact remains there is no evidence to support those instructions. Be that as it may, upon this aspect of the case Mr Ter Haar submits that any conflict of fact involving the service of this form is best resolved by the applicant availing herself of the appeal procedure to the adjudicator and thereafter, if necessary, further to the Immigration Appeal Tribunal. With that submission I agree. This court is not the appropriate forum to determine questions of this kind and there is, therefore, in my judgment no merit in ground four of this application. The final ground raises questions of compassionate circumstances. Counsel for the respondent points out that compassionate circumstances only become relevant in relation to deportation matters and not in relation to the refusal of an immigration officer to permit entry as is the case here. Likewise, with that ground, there is no possible justification for this court interfering in the way which it is suggested the court should interfere. In my judgment this is an application which must fail, and it is dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

North Lambeth Law Centre, Treasury Solicitor

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