Sarah Ashford Afful v. Secretary of State for the Home Department

Sarah Ashford Afful v The Secretary of State for the Home Department

Queen's Bench Division

[1986] Imm AR 230

Hearing Date: 16 April 1986

16 April 1986

Index Terms:

Deportation -- whether when there is an appeal against the decision to initiate deportation proceedings pursuant to s (3)(5)(b) of the Act, on 'conducive grounds', the Tribunal is restricted to the consideration of circumstances in existence and known to the Secretary of State at the date of decision -- whether such cases are exceptions to the rule in Kandemir -- whether there is an obligation on the Secretary of State to interview persons in respect of whom proceedings under s 3(5)(b) are in contemplation: Immigration Act 1971 Ss 3(5)(a), 3(5)(b), 5(1), 15(1), 15(2), 16, 17: HC 169 paras 156-9, 167.

Held:

The facts are set out in the determination. Held: 1. The rule in Kandemir applied to the hearing by the Tribunal of appeals in relation to s 3(5)(b) of the Act in the same way as it applied to appeals in relation to s 3(5)(a) proceedings. 2. In carrying out his duty to be fair, it would normally be necessary for the Secretary of State to afford persons against whom proceedings under s 3(5)(b) were contemplated, an opportunity to state their case. Without some indication from the Secretary of State, many such persons would not know that such proceedings were in contemplation.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Jayantha Weerasuriya [1982] Imm AR 23. Ekrem Kandemir v The Secretary of State for the Home Department [1984] Imm AR 137. CSSU v Minister for the Civil Service [1985] I AC; [1984] 3 All ER 935. R v Immigration Appeal Tribunal ex parte Kwado Osei (unreported, QBD 10 May 1985). R v Immigration Appeal Tribunal ex parte Ekrem Kandemir [1986] Imm AR 136. Ramjaun (unreported) (3052). Khachatourian (unreported) (4175). Sonmez (unreported) (4332).

Counsel:

A Riza for the appellant; P Curwen and R Parsons for the respondent PANEL: Professor DC Jackson (Vice-President) Major RAK MacAllan MC, Dr LP De Souza MC JP

Judgment One:

THE TRIBUNAL: The appellant appeals against the decision by the Secretary of State on 11 January 1985 to make a deportation order against her by virtue of Section 3(5)(b) of the Immigration Act 1971. During the course of the proceedings Mr Riza raised two legal issues apart from the merits. First, he raised the issue of whether the Tribunal had the power to admit evidence in relation to facts not known to the Secretary of State at the date of decision and secondly, he indicated that it would be part of his case that the Secretary of State was under a duty to give notice to the appellant of the fact that she was under consideration for deportation by virtue of Section 3(5)(b) and to make enquiries. We heard submissions as to the question of admissible evidence and ruled on that matter on 27 August 1985. We considered the question of any duty by the Secretary of State to give notice to the appellant of liability to deportation and to make enquiries concerning factors relevant to the decision to make the deportation order subsequent to that ruling and on the same occasion as considering the merits of the case. As we say, the decision to make the deportation order was taken on 11 January 1985. The notice of decision reads: "On 17 January 1983 you were granted indefinite leave to remain on the basis of your marriage to Winston Donaldson Allen but your were at that time already married to Richard Ohene. On 28 September 1984, at Croydon Crown Court, you were convicted of perjury and sentenced to 6 months' imprisonment suspended for 2 years. In the light of your conviction the Secretary of State deems your deportation to be conducive to the public good". Mr Riza drew our attention to a social enquiry report which had been submitted in connection with the appellant's trial, to the relative leniency of the sentence (as he said) and to family circumstances of the appellant. One particular aspect of the family circumstances concerns the appellant's youngest child who was born after the date of decision on 4 April 1985. According to a medical report, this child Emmanuel was on birth found to be suffering from spina bifida, club feet and muscle wasting below the hips for which surgery and physiotherapy were needed. From the explanatory statement it is clear that at the date of the decision the Secretary of State knew of the then pregnancy of the appellant and also knew of the trial proceedings following which she was convicted as set out in the notice of decision. Mr Riza sought to admit evidence concerning the medical condition of Emmanuel and the appellant's domestic circumstances since the date of decision. Mr Riza asked us to admit de bene esse all the evidence that he wished to call without having regard to whether it related to factors in existence at the date of decision or whether, if those factors did exist, they were known to the Secretary of State at that date. Mr Riza urged us to hear the evidence and then, after legal submissions, to consider its admissibility. Mr Curwen strongly opposed this course and we ruled that, as normal, we should first hear submissions as to admissibility and rule on those submissions. As our ruling is of some general importance and is critical to this case, subject to one amendment we incorporate its substance in this determination. The admissibility of evidence in 3(5)(b) proceedings of matters not known to the Secretary of State at date of decision Relevant to that issue and to Mr Riza's contentions are the Immigration Act 1971 sections 3(5)(a) and (b), 5(1), 15(1) and (2), and HC 169 paragraphs 158, 159 and 167. The provisions (so far as relevant) read: "3(5) A person who is not patrial shall be liable to deportation from the United Kingdom -- (a) if, having only a 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; or (b) if the Secretary of State deems his deportation to be conducive to the public good; 5(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; . . . 15(1) Subject to the provisions of this Part of this Act, a person may appeal to an adjudicator against -- (a) a decision of the Secretary of State to make a deportation order against him by virtue of section 3(5) above; or (b) a refusal by the Secretary of State to revoke a deportation order made against him. 15(2) A deportation order will not be made against a person by virtue of section 3(5) above so long as an appeal may be brought against the decision to make it nor, if such an appeal is duly brought, so long as the appeal is pending; . . . 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. 159. The Secretary of State has the power to deport a person if he deems it conducive to the public good. General rules about the circumstances in which deportation is justified on these grounds cannot be laid down, and each case will be considered carefully in the light of the relevant circumstances known to the Secretary of State including those listed in paragraph 156. 167. If no appeal is lodged within the prescribed time limit, or if the appeal is dismissed, the order for deportation will be submitted to the Secretary of State for his signature. The submission will include a summary of the facts of the case, written confirmation (where appropriate) that the appellate authorities have dismissed the appeal and a note of any other relevant information, whether or not it was available to the courts or the appellate authorities. In a case of deportation on security or political grounds the opinions of the advisors (see paragraph 150) will be submitted to the Secretary of State for his consideration." Mr Riza argued first that the normal rules of admissibility of evidence (restricting that admissibility either to evidence of factors in existence at the date of decision or to those factors known to the Secretary of State) did not apply to conducive deportation cases. Secondly, Mr Riza contended, if the restrictive rules did apply to such cases there existed in this case admissible evidence that did not appear to have been taken into account by the Secretary of State. As to the exception of conducive deportation cases from other types of cases, Mr Riza took three main points in ascending order of generality. Mr Riza first pointed to the difference in wording as between HC 169 paragraph 158 and paragraph 159 in that paragraph 158 ends with the phrase "before a decision is reached". It follows, argued Mr Riza, that any restrictive rules applicable to overstay deportation cases (as declared in the Tribunal decisions of Ramjaun (3052) and Kandemir (3427)) did not apply to a decision to make a deportation order on conducive grounds. Secondly, and supporting the first argument, Mr Riza categorised the deportation process when it was based on conducive grounds as a continuous state of affairs ending, if we understood him right, with the making of a deportation order. It followed from this, said Mr Riza, that the appellate authority was entitled to have regard to any relevant circumstance coming into existence by the time of the hearing before it. Mr Riza likened the function of the Tribunal in the context of deportation on conducive grounds to that of the advisory panel in national security cases and urged that the function was part of the administrative process rather than fulfilling a judicial role of reviewing an administrative decision. Thirdly, and in the light of the decision of Webster J in Osei (10 May 1985) with a degree of understandable cautious pessimism, Mr Riza advanced a yet more general argument. The power of the Secretary of State to make a deportation order, said Mr Riza, is founded on section 15 of the Immigration Act 1971. The provisions of section 15(2) ensure an effective appeal against the decision to make a deportation order through prohibition on the making of the order so long as an appeal is pending against the decision to make it. It could hardly be argued, said Mr Riza, that the provision ensuring such appeal would take away much of its effectiveness by excluding any evidence relevant to the deportation order. This view, said Mr Riza, was supported by HC 169 paragraph 167 which illustrated the role of the appellate authorities in the continuing deportation process. As to the contentions assuming that the restrictive rules of admissibility of evidence applied to deportation on conducive grounds, Mr Riza said that the Secretary of State was under some obligation to make himself aware of relevant factors when those factors were not simply within the appellant's own knowledge. In this case, in particular, the Secretary of State should have been aware of all evidentiary aspects flowing from the appellant's trial and conviction -- and in particular a social enquiry report which was made in connection with that trial. Further, the Secretary of State should have updated his knowledge of the appellant's circumstances through an interview with the appellant. Mr Curwen relied in respect of the general contentions as to admissibility of evidence on the Tribunal's approach as set out in Ramjaun and Kandemir. In particular, said Mr Curwen, the decision to make a deportation order must be based on events which have occurred by the time the decision is taken. It was not possible to have a continuous exercise of discretion in the way that Mr Riza had urged. Paragraph 167 simply shows that the Secretary of State is under an obligation to consider all relevant factors before making the deportation order. In his turn Mr Curwen sought to distinguish in principle the question of evidence in entry clearance cases and deportation issues. If we understood him rightly he argued that in entry clearance cases there may be relevant facts in existence not available to the entry clearance officer. In deportation proceedings, however, interviews between the individual and immigration officers will provide an opportunity for the revealing of all relevant facts. It followed that the restriction to matters "known to the Secretary of State" is justified for the individual will have a full opportunity to make all relevant factors known. The purpose of the interview in deportation proceedings (contrary to that in regard to entry clearance) is to become acquainted with factors balancing those supporting the decision to deport. Conclusions The nature of the decision to make a deportation order As Mr Riza said, his argument based on the categorisation of the decision to make a deportation order as a first stage in a continuing process was rejected by Webster J in Osei. That being so Mr Riza was right to address us, perhaps more in hope than in expectation. Whatever our views we are bound by the rejection of that argument in the High Court. We should say however, with respect, that we agree with the rejection in that -- (i) The fact that deportation depends first on a decision to make a deportation order and secondly on the making of that order does not make the initial decision any the less a decision taken on facts then in existence; (ii) the Act must be read as a whole: the conferring, under section 15, of a right of appeal against the decision to make a deportation order together with (a) the prohibition on the making of the order while such an appeal is pending and (b) the specific delineation of the right of appeal in respect of a deportation order (in sections 16 and 17) underlines the twin stage deportation process. (iii) the structure of the Immigration Act provides no ground for the change of role of an appellate authority as between deportation and other proceedings, or "conducive" deportation proceedings and other deportation proceedings: in particular the prohibition of a making of a deportation order while an appeal against the decision to make it is pending cannot be read as doing more than ensuring that the decision is finally approved before the order is made. (iv) HC 169 paragraph 167 simply emphasises that all information relevant to the making of the order should be before the Secretary of State when he is considering whether to make it (see Osei at page 11 of judgment). The wording of HC 169 paragraph 159 In effect Mr Riza's argument on this point, in our view, stands or falls on his general point that "conducive to the public good" is a continuous state of affairs and the Tribunal is performing a primarily administrative function in considering appeals in that context. Once that argument is rejected the rule must be construed in the context of a two-stage deportation process. If, as follows from Weerasuriya [1982] Imm AR 23 and Osei, the legislative structure provides for a decision to make a deportation order and then the making of the order, both paragraph 158 and paragraph 159 refer to the decision to make the order. That being so, the omission of the words "before a decision is reached" in paragraph 159 cannot carry any implication that the critical date for the knowledge of the relevant circumstances is some date after the decision to make the order. The duty of the Secretary of State to identify "relevant circumstances" In Kandemir, the Tribunal said: "As in so many immigration contexts the question of the respective duties of an individual and the Secretary of State is one of balance in the context of the facts of a particular case. It seems to us that in the context of a proposed deportation the Secretary of State's duty is not only to provide an opportunity for an individual to put his case once the individual has, as it were, indicated the case to be put. It is to provide the opportunity for a reasoned decision by ensuring that, so far as possible, the individual realises that deportation is contemplated. Secondly, the individual should be given the opportunity to provide the information relevant to the reasoned decision. The limitation of relevance on matters "known to the Secretary of State" does not relieve an Immigration Officer of the duty of making such enquiries as will go to indicate to him the existence (or not) of the mandatory factors specified in paragraph 156 or any other relevant factor". We adopt that approach and indeed it is supported by Mr Curwen's reference to the practice of interview of potential deportees. Whether or not the duty is complied with in this case and, if not, the extent of the power of the Tribunal in regard to any failure to comply with the duty are matters for argument in the light of evidence.

". . . relevant circumstances known to the Secretary of State"

At the hearing of the case subsequent to this ruling, Mr Parsons adverted to our view, as originally expressed in our ruling, that there are circumstances in which the Secretary of State must be taken to know of certain factors. In this case in the ruling we said that "the Secretary of State must therefore be taken to know of the trial record in evidence adduced or documents produced at the trial. This includes any social enquiry report produced to the Court". Mr Parsons argued that "known to the Secretary of State" means what it says and that if it was not known in fact to the Secretary of State, then a matter could not fall within the purview of the particular immigration rule. On reflection we think that this is perhaps the better approach to problems which may be seen as consequential upon the limitation on matters which can be considered by the appellate authorities in deportation proceedings. Since our ruling the view of the Tribunal that the phrase "all the relevant circumstances known to the Secretary of State" in HC 169 paragraph 158 means what it says has been upheld in a number of decisions of the High Court (see Kandemir and cases cited therein). The general principle on which the view now of the High Court and the Tribunal is based goes fundamentally to the function of the appellate authorities in that they are judicial bodies reviewing an administrative decision and it seems to us, as we said in the ruling, this applies whether the deportation proceedings are by virtue of Section 3(5)(a) or 3(5)(b). A further development has also occurred since our ruling, in that in the decisions in Khachatourian (4175) and Sonmez (4332) the Tribunal held that the Secretary of State had failed in his duty to provide an opportunity for an appellant to put his case particularly, in the light of the mandatory requirements of HC 169 paragraph 156. In Khachatourian the Tribunal held that it could cure that defect. In Sonmez, however, the Tribunal felt that the distinction between the functions of the Secretary of State and the appellate authorities led to the conclusion that it would be in rare cases (if ever) that the failure to allow a case to be put could be cured by allowing that case to be put before the appellate authority. Ex hypothesi if the case for the appellant was not put, the Secretary of State had not exercised his discretion in accordance with law and in particular, had not considered the mandatory relevant factors specified in HC 169 paragraph 156. Bearing these developments in mind it appears to the Tribunal that any failure in the Secretary of State to provide an opportunity for an appellant to put matters before him is preferably dealt with through the principle of the duty to be fair rather than on some "deemed knowledge" principle. In the present case a part of Mr Riza's contentions go to evidence which Mr Riza argues, the Secretary of State should have known about because he knew of other factors connected to that evidence. In particular, said Mr Riza, the Secretary of State should have known about the social enquiry report and should have known or have discovered the reasoning behind the sentence received in the appellant's trial. As we have said, in the ruling the Tribunal indicated an acceptance of the "deemed knowledge" approach at least to the extent that knowledge of one circumstance might indicate deemed knowledge of another connected circumstance. However again on reflection we think that any contention that the Secretary of State should have known about a particular factor is better dealt with under the duty to be fair whether the contention is that an opportunity has not been given when it ought to have been given or whether it is that evidence has not been considered when it clearly should have been considered because it should have been known about. In this case, therefore, we approach the arguments of Mr Riza concerning the duty of the Secretary of State to make enquiries and the duty to consider evidence which should have been before him on the basis of the duty to be fair and not on the basis of any deemed knowledge. The background facts From the documentary evidence (including the explanatory statement) and from the evidence given by the appellant before us, the following facts emerge. The appellant was born on 7 April 1959. She is a citizen of Ghana. She is married and has four children -- Juliette born in 1980, Noel born in 1981, Richard (known as Dick) born in 1984 and Emmanuel born in 1985. All the children were born in England. The appellant first came to England in 1976 and was admitted as a visitor for six months. She stayed for five and a half months and then returned to Ghana where she lived with friends. She said to us that her mother and father separated when she was a child and that her mother did not have enough money to look after her. She became involved in a "bad group". In 1978 the appellant came to the United Kingdom and was admitted for a month. She has in fact remained here ever since. On her admission in 1978 she went to live with a boy friend whom she had met when she was here in 1976. She stayed with him for about three months but she suffered ill-treatment from him. She did not return to Ghana because there she was having a hard time. Here she was working at a Post Office canteen. In 1979 she met Richard Ohene who is the father of Juliette and Noel. He told the appellant that he would marry her at the end of 1980 and they were in fact married in 1981. Due, she said, to ill-treatment by her husband she moved to a flat provided by Lambeth Council. Dick was born on 1 January 1984 and there appears to be some doubt as to whether Richard Ohene is or is not the father. The appellant ceased working because of the children. On 27 July 1984 the appellant was arrested in relation to a second marriage ceremony which she had undergone with Winston Allen on 26 October 1982. The appellant said that she had married him because she was "really hard up with many problems". She had been advised to undertake this marriage by a friend. She had found that on any application for a job she was asked for her passport. After her marriage to Winston Allen she changed the passport and in evidence she said that she realised that this was wrong. In cross-examination she said that she went through the second marriage with an expectation that it would resolve her immigration problems. But in answer to Mr Riza, she said that her main reason for getting married was in order to be able to obtain a good job to look after the children. On arrest she had admitted that she had married Winston Allen in order to stay here. It became apparent that the appellant and Richard Ohene did see each other on occasions after the separation but the appellant said that she was not living with Richard at the time of her second marriage. Richard was not the father of Emmanuel and she did not know who the father was. She had given the same name to Emmanuel as she did not want the children to know about different fathers. During the cross-examination Mr Parsons produced the landing card relating to the appellant's entry in 1978. The landing card is signed and the notes read: "One month shopping trip. Will stay with uncle at address O/L Works as a dressmaker. Buys cosmetics here and exports them to Ghana where aunt sells them. Open RIT to Accra. Has @10. Uncle will give her money as paxs father is building uncle a house in Ghana". The appellant admitted that the signature was hers and that she wrote name and occupation. She said that she did not say she was coming to buy cosmetics and that it was not true about building a house in Ghana. She had never worked as a dressmaker in Ghana. The explanatory statement dwells at length on the appellant's marital history and the discovery by immigration officers that she had gone through two marriage ceremonies. The statement then refers to the appellant's mother, Mrs Poku, and deals in some little detail with her immigration activities. The statement records that Richard Ohene was the subject of a deportation order and that on 12 September 1984 he was removed to Ghana. When questioned about her passport, she first said that she had mislaid her passport but then a passport was discovered showing that she had been granted indefinite leave to remain by the Home Office on 17 January 1983 on the basis of her marriage to Winston Allen. At the time the leave was granted the Home Office naturally had no knowledge of her subsisting marriage to Richard Ohene. The summarising paragraph of the explanatory statement reads: "15. The Secretary of State considered the appellant's position in the United Kingdom in the light of all the relevant information. The appellant had been convicted of perjury, and had been sentenced to 6 months imprisonment, suspended for 2 years. She had been convicted of knowingly making false statements for the purpose of procuring a marriage contrary to the Perjury Act 1911, by giving a false name, and by describing herself as a spinster to the Registrar. She had on her own admission entered into a bigamous marriage to a British citizen to obtain settlement in the United Kingdom following a period of overstaying that lasted over 4 years. She had been given leave to enter the United Kingdom on 20 January 1978 as a visitor for one month. Her first (real) husband was the subject of a deportation order who had been missing for several years, until coming to light in connection with investigations concerning his wife and had now been deported. The appellant had pleaded guilty to the charge against her, and in sentencing her, the Judge had thought it appropriate to leave the question of deportation to the Home Office, but in his summing up he made it known that he felt that the contracting of a bigamous marriage in order to circumvent the Immigration Rules was a very serious matter. The appellant was 25 years old, and had been in the United Kingdom for almost 7 years, having overstayed for over 4 years before obtaining settlement through deception. Her real husband, with whom she had lived throughout their marriage, had been deported to his and the appellant's homeland, and they had 3 children of their marriage all of whom were under 5 years. She was expecting a fourth child. The appellant's mother and 2 sisters were also in the United Kingdom at present, but their immigration status was under investigation. The crime of which the appellant had been convicted was of a serious nature, committed solely to obtain settlement in the United Kingdom by deception. The only compassionate factor appeared to be that the appellant had 3 children, but they were all very young, and could reasonably be expected to travel to Ghana and start afresh with the appellant and their father. The Secretary of State bearing in mind the need to maintain an effective immigration control, and the appellant's attempt to avoid that control by deception and a criminal act, could not find sufficient compassionate circumstances to justify allowing her to remain. The appellant's indefinite leave to remain had not been obtained in accordance with the Rules. Having taken into account all the relevant factors, including those set down in paragraph 156 of HC 169, the Secretary of State deemed it conducive to the public good to deport the appellant under Section 3(5)(b) of the Immigration Act 1971, and to give directions for her removal to Ghana. Notice of this decision, taken with reference to HC 169 paragraphs 148, 151, 154, 157, 159 and 169, was sent to the appellant on 11 January 1985". It is common ground that the appellant was interviewed on 27 July 1984 by two immigration officers prior to her arrest. It seems that she was not interviewed since and was certainly not interviewed after her conviction. Also submitted as documentary evidence was a social enquiry report dated 27 September 1984 compiled by two probation officers for the purpose of the hearing at Croydon Crown Court on the following day which led to the appellant's conviction. This report sets out the appellant's history and reasons given to the probation officers by the appellant for the marriage to Winston Allen. The report also deals with the appellant's children and their circumstances as they existed at the date of the report, it refers to deportation and the consequences this would have on the appellant and her family. Paragraph 5 of the report reads as follows: "5. Miss Afful is adamant that she was unaware of the fact that her actions were illegal but clearly she must have had some notion that what she was doing was at best irregular. Her present circumstances however have left her in no doubt as to how ill-advised and misguided she has been. Miss Afful strikes me as a hardworking and caring mother but I am left with an overwhelming impression of guilessness and vulnerability and of a woman who is easily lead. She trusted her friends, believing that their advice and knowledge was superior to hers, consequently she acted on their counsel". Submissions For the respondent, Mr Parsons argued that the fact that there had not been an interview with the appellant was not fatal to a decision to deport her by virtue of Section 3(5)(b) of the Immigration Act 1971. Further, contended Mr Parsons, there was no cause for the Secretary of State to look further than the conviction, for the Court had left immigration matters to the Secretary of State. Mr Parsons said that even if reference had been made to the court proceedings that would not necessarily have led to the social enquiry report. Mr Parsons agreed that the Secretary of State would have had a duty to consider the report if he had had it. Indeed, as Mr Parsons pointed out, it is not all favourable to the appellant. Further, said Mr Parsons, having heard the appellant and seen the social enquiry report we should assume control and not remit the case to the Secretary of State. It was a case in which we could decide for ourselves exercising our own discretion. On the merits, Mr Parsons said that his basic submission was that the appellant was a stranger to the truth. This was shown by the story she told on her entry and while accepting that a third party had been involved in deception in relation to the passport, this was not sufficient to avail the appellant in the sense that she was not entirely innocent. She had sufficient control over her activities for her to be held fully accountable. Contrary to the social enquiry report she was not guileless. Finally, said Mr Parsons, on the facts of this case the Secretary of State had complied with any duty to be fair. The appellant knew of her liability to deportation, a knowledge shown by the acquiring of a new passport in 1982. It really was not conceivable that at that time she would be contemplating a better employment. We should not believe that all her activities had been taken on the controlling advice of others. We should bear in mind that the offence is concerned with immigration and in that respect there was a strong public interest in maintaining immigration control. Mr Riza's main argument was that the Secretary of State had not taken into account matters which he should have done and it was not open to us to exercise our discretion when the Secretary of State's discretion had not been exercised with the full picture before him. This full picture would have included both the appellant's explanations for her actions, the social enquiry report and the attitude taken by the court in giving the appellant a suspended sentence. That sentence, said Mr Riza, should have put the Secretary of State on notice that there were facts into which enquiry ought to be made. Mr Riza conceded that the conduct of the appellant was such as to found a decision to make a deportation order by virtue of Section 3(5)(b). However, it was necessary to have strict procedure and the burden of justification of the decision is on the Secretary of State and it is a high one. That burden, said Mr Riza, cannot be discharged if the Secretary of State has not attempted to find out all the facts. In this case the Secretary of State had not enquired as to the judge's attitude to the appellant and her conduct but had relied on an immigration officer's view of the judge's attitude and his approach. In particular, it would have been feasible to obtain the transcript and indeed to communicate with the probation officer who after all was also part of the Home Office. The offence was clearly one in relation to which as a matter of law, there had to be a social enquiry report if the court was considering imprisonment. In relation to the social enquiry report Mr Riza pointed out that it referred to violent treatment, marital problems and the appellant's characteristics. Further, there was no investigation whatsoever in regard to the children also referred to in the report. The decision to make he deportation order is procedurally unfair and this is not "in accordance with the law" within the meaning of Sections 19 and 20 of the Immigration Act 1971. As to the merits the only compassionate circumstance which is restricted to the factors before the Secretary of State is the existence of the children. However, said Mr Riza, there was not sufficient information before us, for us to come to any meaningful decision. Conclusions We deal first with the arguments concerning the procedural irregularity, our power regarding any such irregularity and the consequences of the exercise of any power to declare the decision to be procedurally defective. We approach the case on the basis that there is no characteristic of a decision to make a deportation order which would remove it from the general rule that in the taking of administrative decisions there is a duty to be fair. (See now in particular the GCHQ case [1984] 3 All ER 935). Whether such a duty is complied with will depend upon the facts and the context of each such decision. In the context of a decision to make a deportation order by virtue of Section 3(5)(b) we follow the principles adumbrated in Sonmez (4332). In the context of deportation proceedings (whether they be Section 3(5)(a), (b) or (c)) the Secretary of State is under a mandatory duty to consider relevant circumstances known to him including those specified by HC 169 paragraph 156. It may be strongly arguable that once an individual realistically knows that deportation is being considered in relation to him or her, it is for that individual to ensure that the Secretary of State is acquainted with all relevant circumstances. However, in Section 3(5)(b) proceedings we think it unrealistic and indeed impracticable to expect a person to appreciate the risk of deportation unless informed that consideration is being given to deportation. A decision to make a deportation order by virtue of Section 3(5)(b) is based on the conclusion by the Secretary of State that the deportation will be "conducive to the public good". Unlike Section 3(5)(a), therefore, the individual has no realistic means of knowing whether the Secretary of State takes that view unless he is informed at least that there is a possibility that the view will be taken. Any other approach would mean placing a responsibility on an immigrant continually to write to the Secretary of State to ensure that all facts are known to him in case any conduct of his should be thought by the Secretary of State to found consideration for deportation. It is possible to approach the present case on this basis, in that if the appellant had been interviewed after her conviction, it could then be argued that it was up to her to make such representations as to the decision and to make known to the Secretary of State such compassionate factors as were relevant. In particular, it would be arguable that the opportunity afforded by an interview would have enabled the appellant to draw attention to the social enquiry report, any matters concerning the trial and any factors concerning her family circumstances which she wished to have taken into account. An alternative approach is that in part relied on by Mr Riza -- that in this case there was evidence which the Secretary of State ought to have taken into account in the sense that he knew of the trial, and the conviction but did not concern himself with any factor connected with the trial in conviction other than the conviction itself and the reported attitude of the judge as regards one aspect. In our view the duty to act fairly in the context of deportation proceedings is based on the duty to consider any case there is to be made against making the deportation order. The substance of HC 169 paragraph 156 makes it clear that deportation is both a serious matter and is a conclusion to be reached only after consideration of certain factors. It would wholly defeat this process if the Secretary of State deems that deportation was conducive to the public good and to acquaint an individual of that decision only at a point of time which by the rules removed from the individual any opportunity to make the case for which the rules provide. We do not say that an interview is always necessary but if an interview is not thought necessary or is not offered then clearly the question of fairness must be considered in the light of the fact that no opportunity has been given for the appellant to put a case in the context of consideration of deportation. In the present case, the Secretary of State clearly had no regard for the circumstances surrounding the conviction on which the Secretary of State relied. Whether or not the social enquiry report would have weighed with the Secretary of State is not a matter at which we can hazard a guess. It would seem undeniable that it is a circumstance relevant to the decision to make the order for it is a report based on the opinions of experts employed by the court, the judgment of which is the very basis of the decision to make the deportation order. Further, as Mr Riza said, the report itself refers to circumstances which in turn would be undeniably relevant to the decision to make the deportation order. The explanatory statement records that the appellant's "real husband" "with whom she had lived throughout their marriage" had been deported to Ghana. The appellant's evidence is that she did not live with her husband throughout her marriage and this version of events is contained in the social enquiry report. The importance of this factor is underlined by the conclusion drawn in the explanatory statement that the appellant's three children "could reasonably be expected to travel to Ghana and start afresh with the appellant and their father". Further, it is to be noted that the Secretary of State relied on (as is said in the explanatory statement) the assertion that "the judge thought it appropriate to leave the question of deportation to the Home Office but in his summing up he made it known that he felt the contracting of a bigamous marriage in order to circumvent the immigration rules is a very serious matter". It does seem to us that there has been some selection of relevant factors by the Secretary of State which, if one takes the explanatory statement on its face, then become "known to the Secretary of State". If the summing up of the judge was known to the Secretary of State it is difficult to know why the Secretary of State should not be expected to know of matters mentioned in the proceedings and in particular, the existence of a social enquiry report. We cannot, therefore, say that the decision to make the deportation order complied with the Secretary of State's duty to be fair. Mr Parsons suggested that even if we were to make this finding we could, ourselves, exercise our discretion in the sense that we could declare that the matters not considered by the Secretary of State was so peripheral to the real issue and to the heart of the case that they would make no difference. We do not find ourselves able to say that, although we do not say that there will not be cases in which that view could be taken. We bear in mind that the notice of decision specifically bases the decision on the conviction at Croydon Crown Court and that the Secretary of State has specifically relied on a view expressed by the judge during the proceedings. We do not, therefore, feel able to say that other matters connected with those proceedings, other views which may have been expressed by the judge and a document which must lie somewhere near the heart of the proceedings are peripheral. We do not feel able to exercise our discretion, for our discretion must be a review of the discretion exercised by the Secretary of State. As the exercise of the discretion by the Secretary of State is in our view defective because of the failure to act fairly, this appeal must be allowed. We make no comment on the merits and we allow the appeal solely on the basis that the consideration by the Secretary of State of relevant factors was not "in accordance with the law". It is naturally open to the Secretary of State to consider further deportation proceedings and to make such a decision as he sees fit on the basis of the principles adumbrated in this determination.

DISPOSITION:

Appeal allowed

SOLICITORS:

Iqbal & Co

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