R v. Immigration Appeal Tribunal, Ex parte Ekrem Kandemir

R v Immigration Appeal Tribunal ex parte Ekrem Kandemir

Queen's Bench Division

[1986] Imm AR 136

Hearing Date: 6 March 1986

6 March 1986

Index Terms:

Deportation -- claim for political asylum raised only on appeal against intention to deport under s 3(5)(a) of the Immigration Act 1971 -- whether issue appealable -- "factors known to the Secretary of State" -- whether an appellate authority is obliged to consider a claim to refugee status even if the Secretary of State has not done so within context of matters appealable -- whether where a decision under appeal is reviewed and factors then and only then known to the Secretary of State are taken into account and the original decision upheld, the appellate authorities should consider those additional matters only taken into account on review. Immigration Act 1971 s 3(5)(a), 15(1), 17(3), 19(1), 20: HC 169 paras: 153, 158, 165: Immigration Appeals (Procedure) Rules 1972 r 14(2)(b)

Held:

The applicant for judicial review was a Turkish citizen of Kurdish descent. Admitted as a visitor to the United Kingdom in 1978, he became a long-term overstayer. On 7 October 1983 the Secretary of State decided to initiate deportation proceedings against him pursuant to s 3(5)(a) of the Immigration Act 1971. He appealed. In his ground of appeal it was stated inter alia that he wished to be "considered for political asylum". He had not made any such application before and his alleged fear of persecution, in consequence had not been a factor know to the Secretary of State when he took his decision on 7 October 1983. The Secretary of State however reviewed the case and on 6 December 1983 upheld his original decision. The applicant was advised in December 1983 that the adverse decision on a claim to political asylum was not appealable. The case came before the Chief Adjudicator who dismissed the appeal against deportation as an overstayer. In considering the case the Chief Adjudicator took account of the applicant's alleged fear of persecution which he described as absurd. The applicant appealed to the Tribunal before which the Secretary of State took the point that it was the original decision of 7 October 1983 which alone was the subject of appeal. It followed that the applicant's fears of persecution, being not then a factor known to the Secretary of State, was not a matter before the Tribunal. The Tribunal upheld that submission and dismissed the appeal without considering the issue of political asylum. On application for judicial review, it was argued by counsel for the applicant that an appellate authority was bound to consider if a person were a refugee if he claimed to be one, even if the Secretary of State had not considered the matter within the ambit of a decision under appeal: in considering removal to a particular country, the appellate authority was bound to take account of a person's fear of persecution: The Secretary of State was estopped from denying that his later decision (of 6 December 1983) was not under appeal: the Secretary of State was estopped from arguing that the applicant could not raise the issue of a fear of persecution before the appellate authority: the applicant had had a legitimate expectation that the later decision (of 6 December 1983) would be the subject of appeal. Held: 1. The phrase: "known to the Secretary of State" in paragraph 158 of HC 169 restricted the appellate authority to the consideration of facts known to the Secretary of State at the date of the decision under appeal. In the instant case it was the decision of 7 October 1983 that was under appeal. 2. No question of estoppel arose because the applicant had suffered no discernible detriment. It was questionable in any event, in the light of the comments by the House of Lords in Gowa, whether the doctrine of estoppel could apply. 3. Any appeal against destination had to be grounded on an alternative destination. A decision to deport could not be defeated by an objection (even on grounds of fear of persecution) without an alternative. 4. Even if leave had been granted by the Tribunal pursuant to Procedure Rule 14(2)(b) which referred specifically to appeals on the basis of claims to political asylum, the Tribunal could not, in the light of HC 169 paragraph 158, have considered the question of asylum, because that was outwith its jurisdiction. 5. The applicant had no legitimate expectation that the adverse decision on political asylum would be considered by the appellante authorities: he had been advised in December 1983 that it attracted no right of appeal.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Jayantha Weerasuriya [1982] Imm AR 23 R v Immigration Appeal Tribunal ex parte Kotecha [1982] Imm AR 88: [1983] 1 WLR 487: [1983] 2 All ER 289. R v Immigration Appeal Tribunal ex parte Abed El Naby Mohammed El Nashouky El Hassanin [1985] Imm AR 206 R v Immigration Appeal Tribunal ex parte Mohamed Farooq (unreported, QBD 23 October 1985). Gowa v Attorney-General [1985] 1 WLR 1003. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 874: [1984] 3 WLR 1174: [1984] 3 All ER 935. R v Secretary of State for the Home Department ex parte Bugdaycay [1986] Imm AR 8: [1986] 1 WLR 155: [1986] 1 All ER 458.

Counsel:

Alper Riza for the applicant; P Havers 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 on 26 February 1985. The applicant is Ekrem Kandemir. The respondent is the Immigration Appeal Tribunal. The decision of which review is sought is a decision of the respondent, dated 23 November 1984, by which it dismissed the applicant's appeal against a decision to make a deportation order against him and rejected his objections to the Republic of Turkey as being the country to which he would be directed to be removed. The applicant is a citizen of the Republic of Turkey, who is of Kurdish descent. On 29 December 1978 he came to the United Kingdom as a visitor and was granted leave to enter for six months. He overstayed his leave and was eventually discovered in Glasgow on 13 August 1983. He was then in employment at a Turkish restaurant and had a relationship with a woman who is a British citizen. The applicant was interviewed by immigration officers. On 7 September 1983 an officer of the immigration and nationality department of the Home Office recommended to the Home Secretary that he should decide to deport the applicant as being a long-term overstayer (see Immigration Act 1971, section 3(5)(a)). The Secretary of State accepted the recommendation and on 7 October 1983 there was served upon the applicant a notice of a decision to make a deportation order and a proposal to give directions for the applicant's removal to Turkey. On 17 October the applicant appealed against the decision and objected to the proposal. The first ground of appeal was that "the applicant wishes to be considered for political asylum". The objection to the proposal was not accompanied by a specification of a different country or territory. The first ground of appeal was the first occasion on which the applicant had raised any question of, or related to, asylum. The question was investigated by the Home Office. There was an interview on 7 November 1983, which was conducted with the aid of a Turkish interpreter. The information given in interview did not enable the Secretary of State to find any cause to alter his decision to deport. There was no evidence put before him that any country different to Turkey would be willing to receive the applicant. The Secretary of State's further decision was dated 6 December 1983. The appeal came before the adjudicator, Mr M Patey MBE, on 23 March 1984. He had before him an explanatory statement by the Home Office, dated 31 December 1983, which was prepared pursuant to Rule 8(1) of the Immigration Appeals (Procedure) Rules 1972 (SI 1972 No 1684). The statement dealt with the claim for asylum and the reasons for the refusal of asylum. The presenting officer was content that the adjudicator should consider the matter of asylum. He did so. He found that the applicant was neither an impressive nor a credible witness. He dismissed the applicant's apprehensions about his likely treatment in Turkey as being absurdities. The appeal was dismissed. The applicant sought leave to appeal to the Immigration Appeal Tribunal. Amongst the grounds of appeal was the applicant's wish to be considered for "political refugee status". He maintained his objection to removal to Turkey, but again did not specify a different country or territory. Leave to appeal was granted on 9 May 1984. The appeal came on for hearing on 29 June 1984. On that day, the Secretary of State's representative (who was not the representative who appeared before the adjudicator) took the point that as the claim for asylum was first raised after the date of the decision to deport it was not a matter which could be considered on an appeal from that decision. The Tribunal ruled that it was open to the Secretary of State to take the point, but adjourned argument upon it until 24 August. On 14 September, the Tribunal ruled that it was not open to the applicant to rely on the plea of asylum. On 5 October the case was heard on its merits but (in consequence of the earlier ruling) without any reference to asylum or refugee status. Evidence was heard. The Tribunal concluded in its decision of 23 November 1984 that as the applicant was an overstayer "the normally proper course of deportation should be followed". In regard to the objection to removal to Turkey the Tribunal said: "The appellant did appeal against the proposal to remove him to Turkey, but no argument was addressed to us on this issue. No evidence was produced that any other country would receive the appellant". The Tribunal incorporated in its decision the ruling which it made on 14 September. It was as follows: "1(a) It was open to the adjudicator and is open to the Tribunal in the appeal before us (ie, from the decision of 7th October 1983) to consider only circumstances known to the Secretary of State on that date (HC 169, paragraph 158). Such a restriction applies whatever the nature of the circumstances not known. (b) It follows that the appellant cannot rely on evidence relating to the plea of asylum made for the first time on 17 October 1983. "2. In these proceedings no appeal lies from the refusal of asylum by the Secretary of State notified on 6 December 1983, that decision not being incorporated into these proceedings.

"3(a) An appeal lies from the refusal of asylum only if such appeal lies under the Immigration Act 1971 Part II, no right of appeal being conferred by the Convention through the Immigration Rules or in any other way. (b) It follows that there is no reason to adjourn these proceedings pending consideration of any appeal from the refusal of 6 December 1983."

Mr Riza for the applicant sought to flaw the ruling on five grounds, videlicet: (i) the Tribunal is obliged to consider whether or not an appellant is a refugee if he asserts that he is, regardless of whether or not the point was before the Secretary of State when he took the decision which is the subject of the appeal. (ii) The Tribunal is obliged to consider evidence pertaining to apprehension of persecution when considering an objection to a proposal to remove to a particular country. (iii) The Secretary of State was estopped from denying that the decision under appeal was his decision of 6 December 1983. (iv) The Secretary of State was estopped frm arguing that apprehension of persecution could not be raised by the applicant. (v) The applicant had a legitimate expectation that the decision of 6 December 1983 would be considered by the Tribunal and that expectation should have been protected. I shall deal separately with each of these five grounds. The first requires me to set out some provisions of the Act of 1971, and of the relevant Statement of Changes in Immigration Rules (HC 169). A right of appeal against a decision to make a deportation order against an overstayer is conferred by section 15(1) of the Act of 1971. The appeal is to an adjudicator. The determination of appeals by an adjudicator is dealt with in section 19(1) of the Act, which so far as is material provides:

". . . an adjudicator on an appeal to him under this Part of this Act: (a) shall allow the appeal if he considers: (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; (b) in any other case, shall dismiss the appeal."

There is under section 20 of the Act a further appeal to the Immigration Appeal Tribunal. It is at the instance of a party who is dissatisfied with the adjudicator's determination. The Tribunal is empowered to "affirm the determination or make any other determination which could have been made by the adjudicator". The Immigration Rules wich may be applicable to the case are: "153. Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees. Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments. "158. 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 paragraph 156, before a decision is reached.

"165. In accordance with the provisions of the Convention and Protocol relating to the Status of Refugees, a deportation order will not be made against a person if the only country to which he can be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular group or political opinion."

The phrase "known to the Secretary of State" in paragraph 158 is to be noted. The reference in paragraph 153 to the Convention and Protocol relating to the Status of Refugees is a reference to the Convention of 28 July 1951 (UNTS vol 189 page 137) and to the Protocol of 31 January 1967 (UNTS vol 606 page 267). The United Kingdom is a party to both Convention and Protocol. Under the treaties the term "refugee" means (so far as is material):

"Any person who . . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence . . . is unable or, owing to such fear, is unwilling to return to it."

Article 32(1) of the Convention provides:

"The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order."

Article 33(1) of the Convention provides:

"No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers or territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

The United Nations High Commissioner for Refugees, in September 1979, issued a Handbook on Procedure and Criteria for Determining Refugee Status. According to its Preface, it was "conceived as a practical guide". Paragraph 28 of the Handbook says:

"A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but its recognized because he is a refugee."

This statement is of interest, but it is not determinate (see R v Secretary of State for the Home Department, ex parte Bugdaycay [1986] 1 All ER 458 at 466D). I am concerned with the Act of 1971 and the Statement of Changes in HC 169. Mr Riza's submission was that a decision to deport the applicant would not be in accordance with paragraphs 153 and 165 of HC 169 if he was and had been since December 1978 a refugee. Whether he was or was not was therefore a question which, said Mr Riza, the tribunal should have explored. I do not agree. The Tribunal, as was the adjudicator, is exercising an appellate function. The Tribunal and an adjudicator have to consider whether the Secretary of State's decision "was not in accordance with the law or with any immigration rules applicable to the case". Amongst the immigration rules applicable to the case in paragraph 158 with its reference to "known to the Secretary of State". The use in the statute of the past form "was not" and the use in the Rules of the term "known to the Secretary of State" do, in my judgment, destroy Mr Riza's argument. The Secretary of State knew nothing of the applicant's apprehensions when the decision to deport was made. The destruction of the argument accords with other decisions. In R v Immigration Appeal Tribunal, ex parte Weerasuriya [1982] Imm AR 23, Webster J had to consider whether the Tribunal could consider events occurring after a decision of the Secretary of State refusing to remove conditions on a leave to enter. The learned judge said (at p 31):

"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 review. 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 or functions of the Secretary of State or his Department."

Those observations were expressly approved by the Court of Appeal in R v Immigration Appeal Tribunal, ex parte Kotecha [1983] 1 WLR 487 at 493. I, myself, followed them in R v Immigration Appeal Tribunal, ex parte El Hassanin [1985] Imm AR 206. I said (at page 213) that:

"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."

Subsequently, Kennedy J in R v Immigration Appeal Tribunal, ex parte Farooq (23 October 1985, unreported) agreed with my opinion. His decision is significant, in that the facts seem indistinguishable from those of the present case. The applicant was an overstayer from Burma. A decision to make a deportation order was made. The applicant appealed to the adjudicator on the ground that his life and liberty would be imperilled if he was returned to Burma. The Secretary of State considered this novelty but decided to adhere to the decision to deport. The adjudicator dismissed the appeal to him, and the Tribunal refused leave to appeal. It was that refusal which Kennedy J had to consider. The learned judge was concerned with an exercise of discretion by the Tribunal, but he said: "If I am to grant him any relief, he must point to some error in the decision of the adjudicator which at least gives him an arguable case. This is something which Miss Aye seeks to do in her grounds two and four. In those grounds, whilst accepting that the Secretary of State did not and could not know of the applicant's desire for political asylum when he made his decision on 28 September 1983, the adjudicator who did know of that desire, it is said, should have taken it into account when reviewing the decision of the Secretary of State. Here again it seems to me that Miss Aye has authority against her. See R v Immigration Appeal Tribunal, ex parte Kotecha [1983] 2 All ER 289, a decision of the Court of Appeal, and the case of R v Immigration Appeal Tribunal, ex parte El Hassanin, a decision of Mann J reported in The Times on 17 October of this year. "The report of the decision in the latter case is brief and it is in these terms: Mann J said that it was established on the authorities that the decision to make a deportation order was an administrative decision which was based on facts known to the Secretary of State at the time. "'The function of an adjudicator and the Appeal Tribunal was to review that decision in their appellate capacity and was not to come to another decision on facts which, although extant when the decision to deport was made, were unknown to the Secretary of State.'

"I respectuflly agree with all that is there set out."

I return to my view that the function of the Tribunal is an appellate function as is that of the adjudicator. It is not an administrative function. The function is that of considering whether a decision "was not in accordance with law or with any immigration rules applicable to the case". In discharging that function, the Tribunal (and the adjudicator) can in regard to any case where under the Rules the decision is to be taken having regard "to circumstances known to the Secretary of State", concern itself only with those circumstances. To hold otherwise would be to burden the Tribunal with the task of the Secretary of State. That is an administrative and a political task which the Tribunal is unsuited to discharge. Mr Riza's first submission fails. The second submission rests upon section 17(3) of the Act of 1971. It reads:

"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."

The applicant did object to the proposal to move him to Turkey, but he suggested no other destination. In my judgment, section 17(3) of the Act of 1971 gives no right of challenge against a decision to deport. The subsection is concerned only with destination and with the suggestion of an alternative. No destination alternative to Turkey was suggested in this case. The second submission fails. A decision to deport cannot be defeated by an objection without an alternative. The third submission developed in the course of argument. It is pendant on whether in public law there is a concept of estoppel (as to which see Gowa v Attorney-General [1985] 1 WLR 1003 at 1010E). I express no view upon whether there is such a concept. However, if there is, I find it impossible to discern the applicant's detriment. Mr Riza says that the conduct of the case before the Tribunal might have been different had the applicant appreciated the nature of the Secretary of State's case. The history of adjournments and the known collapse of the asylum claim before the adjudicator makes this contention unsustainable. The fourth submission of Mr Riza was developed in the course of argument and was founded on the base that as the Tribunal had given leave to appeal inferentially by reference to Rule 14(2)(b) of the Rules of 1972, there was thus an estoppel against the Secretary of State as it was a rule made by him in the exercise of his powers under section 22 of the Act of 1971. Rule 14(2)(b) is as follows:

"Where an adjudicator has dismissed an appeal by a person who is in the United Kingdom, if the authority is satisfied that the country or territory to which he is to be removed is one to which he is unwilling to go owing to the fear of being persecuted there for reasons of race, religion, nationality, membership of a particular social group or political opinion."

I do not know, but suspect, that it is likely the Tribunal granted leave under that rule. If they did, it ws proper to do so but in regard to the applicant's case it was a barren decision. The grant was within the rule, but there is no case to consider as I have stated. The fourth submission fails. The Tribunal cannot confer on themselves a jurisdiction which they do not possess. The Home Department may wish to consider the terms of Rule 14(2)(b), which antedate Rule 158 as it has been drawn since 1980. Mr Riza based his fifth and final submission on a reference to Council of Civil Service Unions v Minister for the Civil Service [1985] AC 874. He said that the applicant had a legitimate expectation that the decision notified on 6 December would be considered by the Tribunal. The suggestion is quite unreal and has no detectable foundation of fact. The only matter before the Tribunal was the decision of 7 October 1983. There was no suggestion at any stage of the proceedings that the applicant had a legitimate expectation that the decision of 6 December was to be considered. The letter of 6 December 1983 stated in terms that "there is no right of appeal against the decision". All five grounds fail and accordingly this application is dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Winstanley-Burgess, London; Treasury Solicitor

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