R v. Secretary of State for the Home Department, Ex parte Edward Raymond Ntiri Yeboah

R v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Ex parte EDWARD RAYMOND NTIRI YEBOAH

Queen's Bench Division

[1986] Imm AR 52

Hearing Date: 30 January 1986

30 January 1986

Index Terms:

Refusal of admission in the United Kingdom -- whether justified where a deportation order is in force against the individual seeking admission -- whether where a notice of intention to deport is sent to the last known address of a person, it will be properly served if it is not received by that person -- whether the Home Office can rely on Regulation 3(4) of the Immigration Appeals (Notices) Regulation 1972 -- whether in those circumstances time for appealing against such an intention to deport does not begin to run until the person becomes aware of the notice -- whehter natural justice requires that such a person should have the opportunity of having a late appeal considered under the Immgiration Appeals (Procedure) Rules 1972: Immigration Act 1971 ss 3(5)(a), 5(1), 13, 15(23), 33(1): Immigration Appeals (Notices) Regulations 1972, r 3(4) Immigration Appeals (Procedure) Rules 1972; r 8(3)(b), 11(4): Interpretation Act 1978 s 7.

Held:

The applicant was a citizen of Ghana. On 19 August 1973, after being granted entry clearance in Accra as a visitor, he was given leave to enter the United Kingdom, for a month. Without any grant of extension of leave he then became a student. He did not keep in touch with the Home Office. He did not advise them of his changes of address. When he completed his studies he set up in business. He married and there was a child of the union who was a British citizen. In 1978 the Home Office, aware he was an overstayer, sought to sever on him a notice of intention to deport. They sent notices to his last known addresses which did not receive. In due course the deportation order was signed. He travelled abroad on business. On his return from one such trip in November 1984 he was refused admission because of the deportation order. It was agreed by counsel for the applicant that the deportation order should be set aside because the applicant was still in time to appeal against the notice to deport, because that notice was never properly served on him. In that alternative it was submitted that the principles of natural justices required that the applicant be given an opportunity to make representations as to why the deportation order should not be made. Held: 1. Where a person subject to immigration control fails to advise the Home Office of a change of address, the Home Office can effect good serve of notices by sending them to the individual's last known address, in accordance with regulation 3(4) of the Immigration Appeals (Notices) Regulation 1972. 2. In those circumstances and where a deportation order had been signed before the individual becomes aware of the notice of intention to deport, nothing would be served by there being an opportunity for an adjudicator to consider a late appeal under r 11(4) of the Immigration Appeals (Procedure) Rule 1972. The adjudicator would be restricted to determining the question, which could not be challenged, that the regulations as to notice had been complied with. 3. There was no breach of natural justices in the application of the procedure rules and the notices regulations noted. 4. In the circumstances the applicant could no to obtain judicial review of the Immigration Officer's refusal to admit him. The refusal was in accordance with s 5(1) of the Immigration Act 1971. The applicant's sole remedy was to appeal from abroad against the Secretary of State's refusal to revoke the deportation order. 6. The ratio in ex parte Mohammed Daoud Draz doubted: ex parte Mehmet and ex parte Torabally followed.

Cases referred to in the Judgment:

R v County of London Quarter Sessions Appeal Committee ex parte Rossi [1956] 1 QB 682: [1956] 1 All ER 670. R v Immigration Appeal Tribunal ex parte Mehta [1976] Imm AR 38. R v Immigration Appeal Tribunal ex parte Ekrem Mehmet [1977] Imm AR 56 R v Immigration Appeal Tribunal ex parte Rocha [1982] Imm AR 12 R v Secretary of State for the Home Department ex parte Aboo Toyeb Torabally (unreported QBD 18 June 1982) R v Diggines ex parte Rahami [1985] QB 1109: [1985] 1 All ER 1073 R v Secretary of State for the Home Department ex parte Mohamed Mohammed Daoud [1985] Imm AR 215.

Counsel:

KS Nathan for the appellant GR Sankey for the respondent. PANEL: Simon Brown J

Judgment One:

SIMON BROWN J. The applicant is a Ghanian now, aged 29. He owns a computer company in this country and is apparently in a successful and extensive way of business. He is married to a Ghanian lady and they have one child born in England. That child accordingly, unlike either parent, is patrial. By this motion, the applicangrt seeks judicial review to quash various decisions. The first if the refusal of an immigration officer to leave to enter the United Kingdom, that refusal being by notice dated 16 December 1984 in respect of the applicant's last arrival in the United Kingdom on 24 November 1984. The second is the chief immigration officer's decision, communicated by letter dated 25 March 1985, that that refusal should stand, a letter to be considered no doubt in conjunction with a subsequent letter from the Home Office dated 4 June 1985, the final document in the respondent's bundle written after the institution of these proceedings but re-enforcing and further explaining the respondent's stance. Thirdly, added by amendment today but most fundamental of all the decisions sought to be challenged, the Secretary of State's deportation order signed on 30 March 1979. The basic facts of the matter can be shortly and most conveniently chronologically stated. On 15 August 1973, there was issued to the appellant Accra in Ghana an entry clearance in regard to a short visit to the United Kingdom. On 19 August 1973, the applicant duly entered the United Kingdom, being given leave to enter for a period of four weeks, until 15 September. He was at that date just 17 years of age, having been born on 17 July 1956. He came to stay initially which an uncle in London. He began, shortly thereafter, a course of study which apparently lasted for some five years at the South Thames College into the various aspects of computers. It is unclear when, but no doubt within a relatively short time of his arrival, he ceased to stay with his uncle. It is equally unclear as to what address he then moved to. Some years later, no doubt at the conclusion of his studies, namely, in April 1978 on the evidence before me, a company Brillstone Limited was incorporated. That is the company which the applicant owns. It deals with computer hardware and software. As I have said, it is a successful business. On 20 October 1978, the Secretary of State sought to serve upon the applicant a notice of intention to deport him under the power contained in section 3(5)(a) of the Immigration Act 1971, namely, on the basis that the applicant had remained beyond the time limited by his initial leave, as indeed he had to the extent of some five years. The notices were sent on that date, addressed to the applicant at two addresses; first, to his last known address which was 13 Ashbourne Road, Mitcham, Surrey, that being the address to which he had initally gone upon being granted leave to enter in 1973. The authorities, however, had previously made enquiries at that address and had been informed by the applicant's uncle there that he had no knowledge of the applicant, that the had never visited there and that he must, when he arrived in the United Kingdom, have been visiting a former occupier, a Miss Boamah. It was for the reason that the Home Office on 20 October 1978, sent a copy of the section 3(5)(a) notice (and in both instances of the relevant appeal form) to the address to which Miss Boamah had moved. Both those copies of the notices were sent by recorded delivery post. Both envelopes in due course were returned by the post office to the Home Office marked "not known". The Home Office in their evidence filed upon this motion accept that the applicant may well, as he has always contended, have been unaware of the service of those notices and, indeed, of the susbequent making of a deportation order. Such order was duly made and signed by the Secretary of State, dated 30 March 1979. The applicant's son was born on 22 October 1979. Nothing in fact turns upon that. I mention it for the sake only of completeness. He and his wife had married previously, having met in this country. On 19 April 1982, a Ghanaian travel document was issued to the applicant in London. On 3 May 1982, equipped with the document, he left the United Kingdom for a short trip to visit Brussels Trade Fair in connection with his computer business. Four days later, on 7 May 1982, he arrived back to Dover, where his travel document was stamped with an indefinite leave to remain. Clearly, it ought not to have been, having regard to the pre-existing deportation order. For reasons, however, which I will come to, it seems to me that nothing turns on the precise circumstances in which that leave was granted, nor upon any conversatio which there may have been between the immigration officer and the applicant. On 30 July 1984, a passport was issued in London to the applicant. On 17 November 1984, the appellant left the United Kingdom with that passport, again a short visit, this time to the Amsterdam Trade Fair. On 24 November 1984, he arrived back in the United Kingdom at Sheerness, having travelled from Flushing on return from the Fair. He was interviewed by Mr Burns, the immigration office upon that date, and was afforded temporary admission to the country until 1 December. On that date he was further interviewed. Temporary admission was extended initially to 8 December and then further to the 16 December. On that latter date he was again further interviewed. On this occasion he admitted being subject to the deportation order, although he maintained that he had not been aware of it. He was refused leave to enter in these terms: "On 30.3.79 the Secretary of State made a deportation order against you. This order has not been revoked." On 28 Janaury 1985, the solicitor acting for the applicant wrote to the Home Office, manifestly on council's advice, invoking the authority to which I shall later refer of ex parte Mehmet and contending that their client had a right to enter. After some further correspondence, the Home Office wrote their letter of 25 March 1985 which, as I have already indicated, contains the chief immigration officer's decision which is one of those under challenge. There were further exchanges of correspondence. On 18 April application was made ex parte for judicial review. Leave was granted by Hodgson J on 26 April. Notice of motion wasserved on 2 May. Finally, on 4 June, the Home Office wrote again, pointing out those rules which precluded them from extending voluntarily the period within which the applicant could appeal the original 1978 notice of intention to deport him. Before I come to the applicant's argument, it is convenient to dispose briefly of two matters. The first is in relation to the applicant's wife who was in fact joined as a second applicant to the proceedings. That, it is now common ground, is wholly unnecessary. Those paragraphs, in relation both to relief sought and the grounds of such relief, have by agreement been deleted from the proceedings. The fact is that although she herself clearly appears to be an overstayer, no notice of intention to deport her under section 3(5)(a) has yet been served on her. If it is, then of course it will attract in the ordianary way appeal rights. Thus, it is wholly premature to seek any relief in her regard. Secondly, at an earlier stage of Mr Nathan's submissions, he made reference to and sought to place reliance upon the indefinite leave granted on 7 May 1982. He now, however, as I understand it, recognises that unless he succeeds in indefinite leave cannot avail him, for the very good reason that it is expressly so provided by section 5(1) of the Act in these terms:

". . . a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force."

The applicant's essential argument advanced with customary courtesy and expertise by Mr Nathan runs as follows. He recognises that the validity of the deportation order is central to this challenge. What he says, however fundamentally is first that the deportation order should be set aside because the applicant is still in time for the purposes of appealing the notice of intention to deport, because in turn that notice was never properly served upon him an accordance with the procedural requirements. Second, even if that first contention is wrong, he asserts that the principles of natural justice require, irrespective of whether any appeal is in time, that he be given an opportunity to make representation as to why the deportation order should not be made and, it having now been made, as to why it should not be enforced. I take those two arguments in turn. As to the first, in advancing it Mr Nathan relies heavily, at least for part of his argument, upon the decision of the Divisional Court in R v Immigration Appeal Tribunal, ex parte Ekrem Mehmet [1977] 1 WLR 795. It is important to appreciate not only what that case decided but also the particular factual context within which it was decided. As to the latter, it is important particularly to note that in that case, in contrast to the instant motion, no deportation order pursuant to the notice of intention to deport was made by the Secretary of Stste until after the adjudicator and in turn the Immigration Appeal Tribunal had disposed of the applicant's applications before them, indeed, in the case of the Immigration Appeal Tribunal wrongly disposed, as the Divisional Court held, of the applicant's application for leave to appeal against the adjudicator's decision. Mehmet, in so far as it was a decision favourable to the applicant in that case -- I observe parenthetically that it was of course unfavourable to the applicant in so far as it was held that regulation 3(4) of the Immigration Appeal (Notices) Regulation 1972 was intra vires the enabling power -- decided really three things. First, that as of the time the matter fell to be considered by the Immigration Appeal Tribunal there was available to the applicant an arguable point of law, albeit one ultimately held by the Divisional Court to be wrong, so that the Tribunal should in fact have given leave to appeal to entertain the argument upon that point. Secondly, had such leave been given, then upon the oral hearing of that appeal, the applicant might have advanced further matters upon the general merits of his case as to why a deportation order should not be made, so that the Tribunal might have exercised their discretion under rule 11(4) of the Immigration Appeals (Procedure) Rules, a discretion held in the earlier case of Mehta to be very wide, more favourably than the adjudicator and might accordingly have allowed the applicant to appeal out of time and to succeed upon such appeal. Thirdly, that the Secretary of State made a deportation order when he thought that the appeal proceedings were over and that right of appeal had been finally exhausted and, as he was wrong in so thinging (as the Divisional Court concluded) the order would be quashed. Section 15(2) of the Act expressly provides that:

"A deportation order shall 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. . . "

In the result, the Divisional Court set aside the deportation order as one made outside the powers of the Act. What Mr Nathan says here is that the notices of Intention to deport the applicant were served under the provisions of the Immigration Appeals (Notices) Regulations, paragraph 6, but as they were not, on the evidence before this court, received by the applicant, there was accordingly a failure in the requirement to give written notice to the applicant whom it was proposed should be deported and that time for his appeal, accordingly, never began to run. In support of that contention he invokes the Interpretation Act 1978 which proves for the rebutting of a presumption of service in regard to properly delivered notices, and relies also upon a decision of Woolf J in R v Immigration Appeal Tribunal, ex parte Rocha [1982] Imm AR 12. With the best will in the world, however, it seems to me that this contention cannot survive a consideration of the decision in Mehmet which, to my mind, expressly covers this very point. I need not deal with it at length. Suffice to say, that in that case the Home Office sought, as a matter of good practice to serve upon the applicant the section 3(5)(a) notices by sending them to such addresses known to them as could conceivably have brought the matter to the applicant's attention. There, as here, it was recognised that that might well fail, as it did. But the court there held that, nevertheless, the Home Office were entitled to rely on regulation 3(4). It is unnecessary to burden this judgment with a recitation of the relevant provisions of the Immigration Appeals (Notices) Regulations. to my mind, this case is in that respect wholly undistinguishable from Mehmet. In regard to this first argument, Mr Sankey for the Respondents put before me the decision of Farquharson J in a relatively recent case, R v The Secretary of State for the Home Department, ex parte Mohammed Dauod Draz. I am bound to say, with all deference and respect to the learned judge in that case, that I think it an unhelpful decision. I would, indeed venture to place question marks over the correctness of certain aspects of it. In particular, it seems to me that the learned judge's conclusion that the phrase "unless the contrary is proved" within section 7 of the Interpretation Act 1978, "has no bearing on the question of whether service has been effected or not", is wrong and cannot stand with a clear line of authority -- see, for instance, ex parte Rossi [1956] 1 AER 670. I must also respectfully dissent from the view expressed "that if, as in this case, regulation 3(4) is sought to be relied upon, then obviously it would have to be subject to proper affidavit evidence as to the state of mind of the official who is going to rely upon it." That seems to me, with respect, to be going too far in terms of imposing evidential requirements and again to be inconsistent with the decision of the Divisional Court in ex parte Mehmet. Finally, I find it a little difficult to understand how that case came to be considered in the context of a rule 5 application which expressly relates to a person seeking a further opportunity to appeal, once the period provided for by the rights for his appeal has expired. Given that, as in the instant case, the underlying argument was that the section 3(5)(a) notice had not been properly served so that no time of appeal had ever arisen, let alone expired. All that said, however, the short answer to Mr Nathan's first argument lies, as I have already indicated, in rule 3(4). Once it is recognised by reference to that provision that proper compliance with the notices regulations was made by the Home Department, then it follows that there is here no basis (such as existed on the grounds in Mehmet) for attacking the deportation order itself. The contrary argument which Mr Nathan sought is propound is in my judgment not properly arguable and indeed it never was. Next Mr Nathan contends that the adjudicator should determine as a preliminary issue under rule 1(4) of the Immigration Appeals (Procedure) Rules whether an appeal would now be out of time, on the hypothesis that the Home Office have raised such an objection under rule 8(3)(b). But it must be recognised that rule 11(4) would in any event preclude the adjudicator when determining this matter from dealing with any question whatever other than the base issue as to whether the Immigration Apepals (Notices) Regulation had been complied with (as I have decided they were). Here, unlike in ex parte Mehmet, the additional power in the adjudicator under rule 11(4), namely to allow an appeal to proceed if, by reason of special circumstances it is just and right to do so, was never in any event going to be open to the adjudictor because by the time he could have been seized of the matter the deportation order would already have been in force. I turn, therefore shortly to the applicant's second argument. That again is really defeated by the essential structure and scheme of the legislation which is quite inconsistent with Mr nathan's proposition. If natural justice in all instances requires that a deportation order can be attacked in any case where the applicant (assuming only that he has not himself intentionally evaded service of the section 3(5)(a) notice) has not been effectively served and has in the result been unable to make representations, then that would destroy the whole scheme of the legislation. The decision of Woolf J in the case of Torabally (unreported, transcript dated 18 June 1982) makes that clear. I gratefully adopt the learned judge's exposition of the relevant legislation provisions and the scheme of the Code. It becomes unnecessary for me to embark upon any independent exposition of the matter. In so far as Mr Nathan's argument under this head is founded upon the later decision of the Court of Appeal in R v Diggins ex parte Rahmani and Others [1985] 2 WLR 611, I need say only this. It would require a startling and radical extension of the principle, there enunciated by the Court of Appeal, for Mr Nathan's argument to prosper in the very different context which obtains here. There is certainly nothing in Rahmani which gives one qualms about following Torabally when the point is, as I hold it to be here, identical. Mr Nathan sought to distinguish Torabally in certain respects. In my Judgment, however, it is impossible to do so. He suggests that his client is unlike Torbally who, when he first entered the country, "as far as the Home Office was concerned, then disappeared"; in my judgment that is exactly what this applicant did. Whether or not he did so specifically intending to go to ground so that the Home Office would not catch up with him as an overstayer, is nothing to the point. Secondly, Mr Nathan says that it was expressly not disputed in that case that the requirements to give notice of the intention to deport came within the regulation 3(4) exception whereas here, he does indeed dispute that. Given, however, my decision on the first limb of the case, namely, that his argument is misconceived, that does not provide a true distinction between the cases. I would add in regard to the subsidiary argument based on natural justice only this, that it is to be noted that the Secretary of State has in fact here been prepared to have regard, before making his final decision upon the matter, to all matters which the applicant has sought to place and canvass before him. That at least goes some way to fulfilling any general requirement of fairness in the case, although I of course recognise that it is not the same thing as granting the applicant appeal rights before the independent appellate authorities without requiring his initial removal from the country. It follows from all that I have said that in my judgment the only legal course open to the applicant is to appeal against both the immigration officer's refusal of leave under section 13 of the Act and, yet more fundamentally, against the Secretary of State's refusal to revoke the deportation order. So far as the immigration officer at the port is concerned, while that deportation order remains valid and unrevoked, as I hold it is, the applicant has to be regarded as an illegal entrant within the definition provided by section 33(1). That, so far as relevant, provides that: ". . . . illegal entrant' means a person unlawfully entering or seeking to enter in breach of a deportation order . . . " Any appeal against the immigration officer's refusal under section 13(1) can only be advanced once the applicant has left th United Kingdom (see section 13(3) and would be bound to be refused unless the applicant also succeeded in discharging the deportation order (see section 13(4). So far as the appeal against the Secretary of State's refusal to revoke deportation order is concerned, that is of course expressly provided for by section 15(1)(b). Again, however, the appeal cannot be pursued until the applicant has left the United Kingdom (see section 15(5)). I, of course, well recognise the grave disadvantages to the applicant of being restricted to those rights of appeal once he has left the country. Indeed, one notices that Woolf J in Torabally characterised them as being 'of little or no value' although that is perhaps putting it too high. But that consideration cannot affect the outcome of this challenge. Before passing from this case, I would say one more thing. Although it is clear from all the evidence before me that this applicant is by no means addicated to the truth (indeed he has been a lot less than scrupulous in regard to his immigration affairs, both generally and in regard to giving truthful answers upon investigation) I am bound to say that I have some substantial sympathy for him in his present plight. I suspect, looking at the Respondent's evidence, that they too have some sympathy with this applicant and did not lightly refuse to treat his as an exceptional and compassionate case. What gives me cause for particular corner in this. In dealing with the eventual decision upon the matter, the Home Office is by the evidence of Mr Daddow at page 9 of the Respondent's bundle say this: "The only compassionate features of the case appeared to be first, his wife and child, but he claimed to be separated from them and he said he did not know their whereabouts and secondly, the length of his stay in the country which had enabled him to establish himself. This stay had however been unlawful. In all the circumstances it was considered that any circumstances of a compassionate nature were not sufficient to justify a revocation of the Deportation Order". That passage highlights this: namely, that one of the circusmtances, perhaps the most crucial circumstance, in the applicant's case which might have incited compassion nature were not considered that any circumstances of a compassionate nature were not sufficient to justify a revocation of the Deportation Order." That passage highlights this: namely, that one of the circumstances perhaps the most crucial circumstance, in the applicant's case which might have incited compassion, namely, the presence in this country of his wife and patrial child, was lacking. The applicant himself was responsible for the Home Office being under that impression. But the fact is, as it now appears, that the applicant lied to the Home Office when he told them that he was separated from his wife and child. He did so, it seems, because he hoped and thought that that lie would somehow advantage them in so far as their own fate and risk of deportation was concerned. But it occurs to me as at least possible that it may well instead have clinched the Home Office's decision that he should not himself attrack the grant of compassionate leave. I would urge that the Home Office at least have one further look at this matter in the light of the true facts, assuming that they satisfy themselves that this family remains united. But for that, however, I can offer the applicant nothing in these proceedings. The legal arguments, fail and the application is accordingly dismissed.

DISPOSITION:

Application dismissed.

SOLICITORS:

Warehams, Bristol; Treasury Solicitor.