Dhirendrakumar Harshadrai Patel v. Secretary of State for the Home Department

DHIRENDRAKUMAR HARSHADRAI PATEL v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Queen's Bench Division

[1986] Imm AR 457

Hearing Date: 22 August 1986

22 August 1986

Index Terms:

Deportation -- following criminal convictions --notice to deport served on appellant at the trial -- no recommendation for deporation by the Court subsequent decision by the Secretary of State to Deport pursuant to s 3(5)(b) of the 1971 Act --whether issue estoppel arises. Immigration Act 1971 ss 3(5)(b), s 3(6).

Held:

The appellant was convicted of supplying a controlled drugs and sentenced to three years' imprisonment. A notice of intention to deport was served during the trial but the court made no recommendation for deportation. After conviction, however, the Secretary of State decided to initiate deportation proceedings pursuant to s 3(5)(b) of the Immigration Act 1971. Before the Tribunal it was submitted by counsel for the appellant that no such sequences notice should have been issued. The matter had been before the Court and it had made no recommendation. Issue estoppel was pleaded. Held: 1. Subsection 3(6) of the Immigration Act was made specifically "without prejudice to the operation of subsection 3(5)". 2. It followed that where a Court deicded not to recommend deportation, that decision in no way restricted the Secretary of State subsequently considering the case under s 3(5) of the Act. A plea fom issue estoppel was of no avail.

Counsel:

S Kadri for the appellant A Beasley for the respondent PANEL: GW Farmer Esq (Vice-President) IP Allutt Esq OBE, LW Chapman Esq MBE

Judgment One:

THE TRIBUNAL: The appellant, a citizen of India, arrived in the United Kingdom on 22 December 1983 and was granted to leave to enter for 12 months to join his wife Mrs DK Patel. On 3 April 1985 he was convicted of supplying a controlled drug, namely morphine, contrary to section 4(1) of the Misuse of Drugs Act 1971. He was sentenced to three years' imprisonment but was not recommended for deporation. On 3 March 1986 the Secretary of State took a decision to make a deporation order against the appellant by virtue of section 3(5)(b) of the Immigration Act 1971 and to give directions for his removal to India. The appellant appealed against that decision to the Tribunal. The grounds of the appeal were: 1. The Secretary of State erred in holding that the Appellant as given leave to enter as a visitor and not as a businessman. 2 The Secretary of State erred in not taking account that his wife and two children are permanetly settled in the United Kingdom. 3. Further and other grounds to be added in consultation with Counsel." We heard evidence from four witnesses. The appellant said that he had been brought up in India and his wife in Kenya. They married in 1964 and subsequently lived with their two sons in Dubai where he had a construction business. His wife, who is a British citizen, moved with the two children to the United Kingdom in 1971. He visited them regularly and sent them money. On 22 December 1983 he again arrived in the United Kingdom and was granted leave to enter for 12 months to join his family. The appellant said that his parents, a brother and sister lived in India. He had no house nor assets there and his family there would be unable to assist him. His elder son was 20 and received a grant to attend Southwell Polytechnic. He had another 3 years there. His younger son was 15 and would be taking his O levels. That son could not transfer to India as the medium of instruction was Hindi and neither of his sons could speak any Indian language. The boys had indefinite leave to remain in the United Kingdom. The appellant's wife Mrs Patel said that in Order to go to India she would need a visa and she would need permission to be allowed to work there. If her husband were deported she would not go with him. She would be like a stranger to her in-laws in India. Her boys neither knew the place nor the language. She said that she had been employed since coming to the United Kingdom. They were a happy family. Her health was not good. She did not think that her husband would commit any further offences. The next witness ws Mr NG Tulsiani. He said that he had a business and while the appellant was awaiting trial he had employed him. He had found the appellant to be reliable and trustworthy. If the appellant was allowed to remain in this country he would offer him a job which carried a salary of @10,000 a year plus commission. The final witness was the appellant's older son Mr B Patel. He said in his mother's health was not good. His brother had been upset because of their father's imprisonment. Neither he or his brother spoke any Indian language and they were both being educated here. Section 3(5) and 3(6) of the Immigration Act 1971, 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 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 deporation to be conducive to the public good; or (c) if another person to whose family he belongs is or has been ordered to be deported." 3(6) Without prejudice to the operation of subsection (5) above, a person who is not patrial shall also be liable to deportation, from the United Kingdom, if after he has attained the age of seventeen he is convictded of an offence, for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so." Mr Kadri said that the Crown had served a notice in respect of deportation at the criminal trial. That matter had been considered by the judge who was in possession of all the facts. the Judge had said "a recommenation should not be made". There was in Mr Kadri's submission "issue estoppel." We are unable to agree with that appoach. Section 3(6) begins with the words "without prejudice to the operation of subsection (5) above." The Secretary of State in our judgment clearly had the power to act under 3(5)(b) of the Immigration Act 1971. We are entitled to note that at the trial the judge did not recommend deportation and had taken that as one factor in the appellant's favour. The matter falls to be considered in the light of paragraphs 159 and 156 of HC 169. "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 circusmtances 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". 156. In considering whether to give effect to a recommendation for deportation made by a court on conviction the Secretary of State will take into account every relevant factor known to him, including: age; length of residence of the United Kingdom; strength of connections with the United Kingdom; personal history, including character, conduct and employment record; domestic circumstances; the nature of the offence of which the person was convicted; previous criminal record; compassionate circumstances; any representations received on the person's behalf. In certain circumstances, particularly in the case of young or first offenders, supervised departure, with a prohibition on re-entry, may be arranged as an alternative to the deportation recommended by the court provided that the person is willing to leave the country." The appellant was 44 years old, a neutral factor. He has lived here for a comparatively short period. His wife is a British citizen and his children have indefinite leave to remain here. The family are attached to each other and the fact that they would not accompany him back to India is a strong compassionate factor in his favour. The appellant's wife was in employment at the time of the decision and has worked since she has been in the Unied Kingdom. We accept that the appellant would not find it easy to make a fresh start in India but we doubt that his family would be totally unwilling to help him particularly in the initial stages. The appellant's wife is said to enjoy good health and his sons are students here and would have difficulty to continue their studies in India even if they were minded to follow that course. The appellant has the offer of a job here. He has been convited of a serious crime. In our judgment when the public interest is balanced against the compassionate circusmtances of the case, deportation is the right course on the merits.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Bindman & Partners.

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