R v. Immigration Appeal Tribunal, Ex parte William Palomeno

R v Immigration Appeal Tribunal ex parte William Palomeno

Queen's Bench Division

[1987] Imm AR 42

Hearing Date: 23 October 1986

23 October 1986

Index Terms:

Deportation -- refusal of Secretary of State to revoke deportation order-- applicant still in United Kingdom -- whether Secretary of State obliged to advise applicant of right of appeal that would only arise after the applicant had left the United Kingdom. Immigration Act 1971 ss15(1)(a), 15(5): HC 169 para 170.

Held:

The applicant for judicial review was granted limited leave to enter the United Kingdom following marriage. The marriage broke down. His leave was not extended. He became an overstayer. The Secretary of State ultimately signed a deportation order. Before the applicant became aware of that order, he married another British citizen. On the basis of that marriage, when the existence of the deportation order was made known to his solicitors, there wasan application made for the order to be revoked. The Secretary of State refused to revoke the order. In so advising the applicant he did not tell him of his right of appeal from abroad against that decision. It was submitted by counsel for the applicant that that constituted a procedural defect prejudicial to the applicant. Counsel also drew the Court's attention to the fact that the adjudicator had not heard any oral evidence and that the Tribunal, while accepting that the adjudicator had not fully considered the compassionate circumstances had not remitted the case for re-hearing. Held: 1. Nothing unfair or contrary to natural justice had occurrred. 2. The applicant had elected not to have an oral hearing of his appeal. The Tribunal was itself empowered to consider the compassionate circumstances and had clearly done so. There was no obligation on the Tribunal to remit the case. 3. There was no right of appeal while the applicant was in the United Kingdom and the Secretary of State had no obligation to advise him of his right of appeal while he was here. In any event paragraph 170 of HC 169 did not make it mandatory for the Secretary of State to give that advice: it merely indicated that would be done.

Cases referred to in the Judgment:

No cases are referred to in the judgment.

Counsel:

E Cotran for the appellant; P Vallance for the respondent PANEL: MacPherson J

Judgment One:

MACPHERSON J: Mr Cotran moves in this case for judicial review. He has leave from Hodgson J given in 1984. That leave was given without Hodgson J having been given the full facts of this strange case. But the Secretary of State takes no point as to that, and I consider the matter on the basis of the amended notice and grounds. Some of the events in this case happened after leave was given, so that I approach the case on the basis that leave has been given to pursue all the arguments advanced. William Palomeno comes from Manila. He is a Filipino by nationality. He had entry clearance granted in Manila. He was given leave to enter the United Kingdom for tweleve months as the husband of a British national. The history of the marriage and the relevant subsequent dates all appear at pages 15 to 16 of our bundle and amongst the other documents, and I will not repeat them. It is enough to say that the applicant's wife was in the end (after considerable investigation and interviews) the instrument by which this applicant was refused further leave to stay here on 15 July 1980. The wife said effectively that the applicant was using her in order to prolong his stay here. In due course a refusal notice and an amended notice were served, and from the date at least of that latter notice, 31 March 1981, the applicant had no right to stay here. The applicant's appeals against that decision of July 1980 were dismissed. Attempts were made by the Filipino Chaplaincy to persuade the Secretary of State to allow the applicant to stay, but without success. There was then a gap of about two years. In 1983 steps were taken to see the applicant again, and at interview the applicant said that he was quite willing for his marriage to continue. All this can be seen at pages 31 to 32 of the bundle. In view of the passage of time the Secretary of State then decided that he would take steps to deport the applicant under the provisions of section 3(5)(a) of the 1971 Act. Notice of such decision was served on 26 August 1983. That notice was wholly in order, and as he was entitled to do the applicant appealed against the decision. An adjudicator heard the appeal and gave his reasons on 25 January 1984. The matter was determined without oral evidence -- since this was the method chosen by the applicant. Mr Cotran criticises the advice given to the applicant at that time, but the procedure was perfectly in order, under the provisions of rule 34 of the Immigration Appeals (Procedure) Rules. That decision of the adjudicator was appealed, and the grounds given for the appeal were that the adjudicator (in shorthand terms) had failed to give due weight to the compassionate circumstances in the case. The Tribunal gave leave to appeal. At the hearing the applicant was represented by Mr Gillespie. He referred to the lack of reasons in the adjudicator's determination. As to that the tribunal were receptive -- see pages 42 and 43 of our bundle. But after the matter was raised Mr Gillespie did not ask for the matter to be remitted to the adjudicator, and indeed he went on to deal with the merits of the case, and in particular the compassionate aspects of the matter -- all of which have to be taken into account in accordance with the immigration rules. Paragraph 156 of HC 169 was expressly set out in the Tribunal's conclusions, and it is apparent that the Tribunal itself considered the merits of the matter in the light of that paragraph. The Tribunal did not exercise its discretion to remit the matter. Perhaps most significantly they were not even asked to do so, and I do not believe that they did anything unfair or wrong. As the Tribunal said, and as the applicant was indeed advised, there was really very little, if any, prospect of the appeal succeeding, even (1 add) if the matter had been remitted. In my judgment the first relief sought here, namely, an order directing the Tribunal to allow the appeal from the adjudicator, is hopeless. As events showed, it is plain that the marriage was indeed at an end by 1984; indeed all the signs are that, in spite of what the applicant said, it was only a shell by June 1980. After that the deportation order was made on 6 September 1984. That order is at page two of volume two of our documents, and it leads us into the second phase of this case. Mr Palomeno says that he never had that order at the time. His solicitors certainly never appreciated that it had been made until 1986. But the fact is that it was made and signed, but no steps were taken under the Third Schedule of the Act at that time to give any directions for Mr Palomeno's removal. There is no statutory provision requiring the service of a deportation order. Against any direction for removal Mr Palomeno would have a limited right of appeal under section 17, although if that step had been or is taken he may well have problems in any such appeal since I know of no suggestion that he should go to any other country than the Philippines. That is not the matter with which we are now concerned. The history of the case then goes as follows. Until July 1984 a Member of Parliament was pleading for Mr Palomeno on the basis that his original marriage was subsisting and that a reconciliation might take place. It seems to me likely that the wool was pulled over Mr Atkinson's eyes. In any event, even if that is not so, the applicant gave up by early October 1984 when he issued proceedings for divorce. The Member of Parliament was told in terms on 12 September 1984 that the deportation order had been made. Those letters between the Member of Parliament and the Secretary of State were, so I am told, not in the possession of the applicant at any time. On 9 October 1984 Mr Atkinson appears on the scene again, pleading the cause of the applicant and his new fiancée, Miss Susan Wilkinson. A letter from her is also included in the bundle. Again Mr Waddington investigated the matter but said that steps would be taken for Mr Palomeno's removal. He was perhaps fortunate not then to be removed. On 24 December 1985 Mr Palomeno's solicitors wrote to the Treasury Solicitor announcing Mr Palomeno's marriage on 19 November 1985, not to Miss Wilkinson but to Miss Daslia Lochrane, a British subject born in the Philippines. The solicitors did not know of the deportation order, and they plainly thought that at interview their client would be asking for permission to remain because of the marriage. Such an application had the greatest problems. On 10 January 1986 Mr and Mrs Palomeno were seen at the Home Office, and they must then have talked both about the marriage and the deportation order. In a letter of 5 March 1986 the Home Office gave a two-pronged decision. First, it was said that the Secretary of State was not satisfied that the second marriage was not contracted primarily to circumvent the immigration rules, so that even if an application could have been launched because of that marriage it was an unsustainable application. Secondly, it is plain that the Secretary of State considered whether or not he might in his discretion revoke the deportation order. That was of course part and parcel of his general consideration of the new marriage, and the marriage could not have helped the applicant while the deportation order stood. The Secretary of State said that he was not prepared to exercise his discretion and revoke the order, and I assume in Mr Palomeno's favour that this was thus an express refusal to revoke. Against such refusal there is by section 15(1)(a) a right of appeal, but it must be stressed that by section 15(5): "A person shall not be entitled to appeal so long as he is in the United Kingdom." It is said by Mr Cotran that, because under paragraph 170 of HC 169 the Secretary of State did not notify the applicant of his right of appeal and do what that paragraph required him to do, namely, appeal in 28 days provided he was by then out of the country, there is a defect in the procedures in this case which should result in the matter being re-opened, presumably so that his appeal against revocation can be heard. Paragraph 170 does, however, in my judgment only require notification as to the right of appeal if the appeal does lie. I do not need to read the whole of paragraph 170, but I read the latter part:

"Where the application for revocation is refused, there is a right of appeal in the first instance to an adjudicator unless the order was made against a person as belonging to the family of another person, in which case it lies to the Tribunal. But no appeal lies where the Secretary of State personally decides that continued exclusion from the United Kingdom is conducive to the public good, nor so long as the person is in the United Kingdom. Where an appeal does lie, the right of appeal will be notified at the same time as the decision to refuse to revoke the order."

In those circumstances the Secretary of State's representative was right in my judgment to say, as he did, twice that no appeal lay since the applicant is and was still here. Even if that is wrong, the paragraph is not in my judgment mandatory. The paragraph purely asserts that the right of appeal "will be notified". If there was a right of appeal, then the applicant should and could have exercised it. He had lawyers acting for him all the time, and notification of the right of appeal is nowhere made a prerequisite of the validity of an order. In any event, pursuing Mr Vallance's argument, any appeal was in my judgment doomed to failure since everything possible had already been considered in this case at every stage. Even if there was any substance in this latest ground upon which Mr Cotran relies perhaps most strongly, I would not exercise my discretion in favour of Mr Palomeno. He has had a long stay in this country. He is liable to be deported, and even without such an order in force he has no leave to stay and no ground which could possibly entitle him to remain. I see no strength in any of the matters raised on his behalf, and I refuse to make any order in favour of Mr Palomeno.

DISPOSITION:

Application dismissed

SOLICITORS:

Pollard Scott Winter, London W1, Treasury Solicitor.