Gulten Ibrahim Zorba, Mustafa Zorba v. Secretary of State for the Home Department

Gulten Ibrahim Zorba Mustafa Zorba v Secretary of State for the Home Department

Queen's Bench Division

[1986] Imm AR 145

Hearing Date: 10 March 1986

10 March 1986

Index Terms:

Deportation -- whether the Secretary of State is empowered to initiate deportation proceedings under s 3(5)(c) of the 1971 Act against members of the family of a person against whom like proceedings have been initiated under s 3(5)(a) of the Act before the deportation order is signed pursuant to s 3(5)(a) -- whether the Tribunal has jurisdiction to hear an appeal against a decision to deport under s 3(5)(c) before the appellate process in respect of an appeal relating to a s 3(5)(a) notice is exhausted. Immigration Act 1971 Ss 3(5)(a), 3(5)(c), 15(7), 15(8), 15(9): HC 169 paras 156-60

Held:

The facts are set out in the determination. Held: 1. Although there are difficulties raised by the judgment in Ekrem Mehmet, when s 3(5) of the Act is read in conjunction with the relevant sub-sections of s 15, it must be concluded that the Tribunal has jurisdiction to hear an appeal against a s 3(5)(c) notice at the same time as a related appeal against a s 3(5)(a) notice. 2. It follows that the Secretary of State is empowered to issue the relevant s 3(5)(c) notice before any deportation order has been signed against the member of the same family, the subject of proceedings under s 3(5)(a).

Cases referred to in the Judgment:

Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436: [1957] 1 All ER 49 Suthendran v Immigration Appeal Tribunal [1977] Imm AR 44 R v Immigration Appeal Tribunal ex parte Ekrem Mehmet and ors (No 2) [1978] Imm AR 46

Counsel:

A Riza for the appellants; P Curwen for the respondent PANEL: DL Neve Esq (President), Miss PG Liverman JP, EA Lewis Esq JP

Judgment One:

THE TRIBUNAL: The appellants are citizens of Cyprus, Gulten Ibrahim is the mother of Ibrahim and Mustafa. They appeal to the Tribunal at first instance against the decision by the Secretary of State to make deportation orders against them -- in the case of Gulten by virtue of Section 3(5)(a) of the Immigration Act 1971, and in the case of her children by virtue of Section 3(5)(c). With the agreement of Mr Riza and Mr Curwen (subject to the reservations contained in Mr Riza's submissions which will appear later in this determination) we have dealt with all their appeals together. We reserved our determination and the parties agreed to postal delivery of it. The salient facts of this case are not in dispute and can be summarised as follows. Gulten's hsuband who is also a citizen of Cyprus arrived in this country on 13 December 1978, when he was given leave to enter as a visitor for one month. He remained in this country without authorisation and undetected until he was arrested by the police on 27 March 1984. Eventually a deportation order was signed against him, and on 18 September 1985 he was removed to Cyprus. On 5 August 1979 Gulten and her children arrived in this country. She was admitted for one month as a visitor. No application for an extension of her stay was ever made and she remained in this country undetected until her husband's whereabouts were discovered and he was arrested in March 1984. There have been discrepancies in the evidence relating to the state of Gulten's marriage at this time. When Gulten's husband was arrested he is recorded as having told a police officer that he was no longer living with Gulten and the children. When he was interviewed by a Home Office representative later however he denied having said any such thing. When Gulten herself was interviewed she denied that she and her husband had been living separately at the time of his arrest and maintained that they had never been separated due to marital problems. At the hearing of the appeal before us however when she gave evidence she told us that her marriage broke up about Christmas 1983 due to her husband's association with another woman. She agrees that she said when interviewed that she was living together with her husband and that this was not true, but says that she said this because of pressure brought to bear on her by her husband's family -- particularly his uncle. She told us that "When he was arrested we were half living apart -- sometimes he would come home and sometimes not". It is not disputed that Gulten's husband had established a relatively prosperous clothing business whilst he was here. When Gulten was interviewed she said that she had married her husband in September 1973, and the two children were aged six and nine at the time of the interview. She said that she had two uncles living in the United Kingdom, and her parents and an aunt in Cyprus. She said that she and her family wished to stay in this country because they were now established here and were able to "earn good money and have low rent to pay". Having considered all Gulten's circumstances known to him, and having regard to paragraphs 154, 156 and 158 of HC 169, on 6 September 1985 the Secretary of State decided to make a deportation order against Gulten under Section 3(5)(a) and to give directions for her removal to Cyprus. In the case of Ibrahim and Mustafa their circumstances are necessarily dictated by those of their mother. Presumably in view of their age, they were not interviewed on behalf of the Home Office, but in the light of their circumstances as revealed by the interviews with their parents, when the Secretary of State made the decision in relation to Gulten, he also decided to deport him Ibrahim and Mustafa as her children under Section 3(5)(c) of the Act. So much for the facts as they presented themselves to the Secretary of State. We now have to consider certain legal difficulties which have arisen in this case. These are difficulties which arise from the wording of section 3(5)(c) of the Act when compared with the wording of sections 15(7), (8) and (9) of the Act. Section 3(5)(c) reads: "3(5) A person who is not patrial shall be liable to deportation from the United Kingdom -- (c) if another person to whose family he belongs is or has been ordered to be deported." Section 15 subsections 7, 8 and 9 read: "15(7) An appeal under this section shall be to the Appeal Tribunal in the first instance, instead of to an adjudicator, if -- (a) it is an appeal against a decision to make a deportation order and the ground of the decision was that the deportation of the appellant is conducive to the public good; or (b) it is an appeal against a decision to make a deportation order against a person as belonging to the family of another person, or an appeal against a refusal to revoke a deportation order so made; or (c) there is pending a related appeal to which paragraph (b) above applies. (8) Where an appeal to an adjudicator is pending under this section, and before the adjudicator has begun to hear it a related appeal is bought, the appeal to the adjudicator shall be dealt with instead by the Appeal Tribunal and be treated as an appeal duly made to the Tribunal in the first instance. (9) In relation to an appeal under this section in respect of a deportation order against any person (whether an appeal against a decision to make or against a refusal to revoke the order), any other appeal under this section is a 'related appeal' if it is an appeal in respect of a deportation order against another person as belonging to the family of the first-mentioned person." As section 3(5)(c) contains the words "is or has been ordered to be deported" and no deportation order has been signed against Gulten, the Tribunal expressed concern as to whether it had jurisdiction to hear these appeals together as "related appeals". Mr Riza seized upon the apparent paradox presented by comparison of the two sections of the Act which we have quoted to establish that because no deportation order has been made against their mother no order under section 3(5)(c) can be made against her children. He has most helpfully submitted a skeleton argument which sets out his case in this regard very clearly and which we reproduce here: "1. The issue central to this case is whether the two minor appellants are liable to deportation under Section 3(5)(c) of the Act. The issue is not whether their appeal can be heard together with that of their mother, the principal deportee, under Section 15(7)(c) read together with subsection (9) of that Section. 2. The words that fall to be considered in Section 3(5)(c) are the following:

'(c) if another person to whose family he belongs is or has been ordered to be deported.'

It is submitted that if the words 'is or has been ordered to be deported' admit of only one construction then that construction should be given effect: See per Lord Normand in Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 467. 3. The power to make a deportation order is to be found in Section 5(1) of the Act. The power, however, does not arise so long as there is an appeal pending against a decision to make it: See Section 15(2) of the Act. Therefore, a person cannot be said to be ordered to be deported if the Secretary of State cannot exercise his powers under Section 5(1). 4. If the draftsman wanted to make the members of the family of the principal deportee liable to deportation at a point in time prior to the making of the order against the principal deportee ie either when the principal deportee became liable to deportation or when the decision to make the deportation order was made, Section 3(5)(c) would have been in one or other of the following terms viz.

'(c) if a decision to make a deportation order is or has been made against another person to whose family he belongs'; or

'(c) if another person to whose family he belongs is liable to deportation under Section 3(5)(a) or (b) above'.

5. Thus the material words in Section 3(5)(c) admit oly one construction and the doubt that arises is because another section in another part of the Act is arguably inconsistent: See Section 15(7)(b) to (9). In these circumstances, a choice has to be made and, it is submitted, the principles to be applied in making the choice are as follows: (1) If, contrary to what is contended, the material words in Section 3(5)(c), to admit of 2 possible constructions, then firstly the mistake must be acknowledged; (2) So far as this case is concerned it is conceded that Section 15(7) et seq although convoluted do appear to be inconsistent with Section 3(5)(c); (3) the overall policy of the Act must be considered. In this connection, weight must be given to the fact that it is virtually unthinkable that the legislature intended that a family who may be here perfectly lawfully would become liable to deportation at a time when it is not even certain that the principal deportee is actually going to be deported. Such a destablising effect could not have been envisaged by the draftsman; (4) whether the sphere of operation is the same and, if not, the nature of the part of the Act in which the two competing sections appear. In this case Section 3(5)(c) is substantive and is to be found in Part I of the Act which deals with the rights and powers relating to Regulation of Entry into and Stay in the United Kingdom. Section 15(7)(b) read together with Section 15(9) is in Part II which is an adjectival part concerned as it is with procedural matters ie appeals. Since the issue in this case is whether the two minor appellants are liable to deportation under Section 3(5)(c) and not how their appeals are heard under Section 15, what has to be considered first and foremost is whether, as a matter of law, they are liable to deportation. 6. This case is in some ways the obverse of Suthendran v The Immigration Appeals Tribunal [1976] 3 All ER 611: See pages 614-619." Mr Curwen's submission was that the decision to make a deportation order under section 3(5)(a) was itself sufficient and that a substantive deportation order was not necessary before an appeal could be heard in accordance with section 15 of the Act. However he very properly brought to our attention the judgment of Widgery LCJ in the case of Ekrem Mehmet and others [1978] Imm AR 46 which he conceded might cast doubt on his submission. In that case a decision had been taken under section 3(5)(a) to deport the father of a family as an overstayer. A deportation order had been signed against him which was quashed upon application for judicial review. Meanwhile a decision had been taken under section 3(5)(c) to deport his wife and daughter. Having held that the order quashing the deportation order against the father did not bring down with it the decision to make the order, the Lord Chief Justice continued:

"As far as the mother and daughter are concerned, the first question we have to consider is whether they remain within s 3(5)(c) when the father's deportation order has been set aside. It will be remembered that the conditions necessary to bring s 3(5)(c) into operation are that another person who is the father to whose family the mother and daughter belong 'is or has been ordered to be deported'. Of course the father was ordered to be deported, but the order was not sustained and it was set aside in this Court by Certiorari. Can one then say that nevertheless the mother and the daughter are still members of a family of whom another member 'is or has been ordered to be deported'? In my judgment, one cannot. The effect of Certiorari quashing the deportation order was to remove it altogether. It does not seem to me possible to construe s 3(5)(c) as though the survival of a decision to make a deportation order against the father is enough to satify that requirement."

At first sight this would appear to afford formidable support to Mr Riza's argument but it is necessary to examine this authority with care in view of the consequences which might flow from it should it be wrongly applied. The words in section 3(5)(c) "another person to whose family he belongs is or has been ordered to be deported" can be construed in four different ways: so that such a person (1) "is deported"; (2) "is ordered to be deported"; (3) "has been ordered to be deported"; and (4) "is to be deported". Constructions (1), (2) and (3) would include those persons against the head of whose family a deportation order has been signed and are the constructions urged upon us by Mr Riza. Construction (4) would cover not only persons against whom a deportation order had been made but also those against whom the Secretary of State had signified his intention to make a deportation order -- in the same way, for example, as a person who has successfully appealed to an adjudicator against the refusal of entry clearance "is to be" issued with entry clearance. Only if construction (4) above is the correct one can subsections (7)(b) and (c), 8 and 9 of section 15 of the Act make sense. If any of the other constructions are put upon section 3(5)(c) then the subsections of section 15 to which we have referred can be of no effect. It does not appear that the attention of the Court in Ekrem Mehmet was drawn to this aspect of the matter, but of course it is not for us to say that the decision was arrived at per incuriam, although it is to be noted that the Lord Chief Justice himself remarked:

"The Immigration Act 1971 is just beginning to offer up difficulties, and we are just beginning to realise what problems there may be in store for us in its administration."

Was the question which the Court was considering in Ekrem Mehmet on all fours with the question before us? In a nutshell, what the judgment decided was that the decision to deport the family members under Section 3(5)(c) could not survive the quashing of a deportation order made against the head of the family under Section 3(5)(a). What we have to consider is whether consideration can be given to the decision to deport family members before the deportation order against the family head has been signed -- a somewhat wider question. To this extent we consider that this case is distinguishable from Mehmet and we are fortified in this view by the consideration that it makes sense of the words "is or" in section 3(5)(c), and consequently of the whole of section 15, thus satisfying three of the basic canons of construction of Statutes: (1) that one should strive to give effect to the intentions of Parliament. It seems that the intention of Parliament expressed, however tortuously, in section 15(7) was that when a decision to deport the head of a family is under appeal and also there is a decision to deport members of that person's family also under appeal, then the appeals of all of them should be dealt with by the Tribunal at first instance instead of the appeal of the head of the family being first dealt with by an adjudicator. By implication therefore it is possible to hear an appeal against the 3(5)(c) decision before a deportation order has been signed against the head of the family; (2) that one has to consider a statute as a whole; and (3) that one has to presume that words must be given some meaning: if Mr Riza's suggested construction is correct the words "is or" are otiose and the subsection might as well read "another person to whose family he belongs has been ordered to be deported". For all these reasons we consider that although it is not easy to distinguish this case from that of Mehmet it is desirable to do so, and possible to do so for the reasons which we have given. Before we move on to the evidence which we have heard and the compassionate circumstances revealed by it, it is convenient to consider the further legal submissions made by Mr Riza, which we hope we can properly summarise as follows. The children cannot be deported as members of their father's family because they have ceased to be such, their parents' marriage being at an end. We attach no importance to this submission because it is not sought to remove the children as member of their father's family but as the children of their mother, the principal appellant. Mr Riza's next submission is that the immigration rules made pursuant to section 3(2) of the Immigration Act do not provide for the deportation of children where the mother is the principal deportee. The principal rule in this connection is paragraph 160 of HC 169 which reads:

"160. There is power to make a deportation order against the wife or children under 18 of a person ordered to be deported on any of the grounds mentioned in paragraphs 156-159 unless more than 8 weeks have elapsed since that person left the country following the making of an order against him. Where the Secretary of State decides that it would be appropriate to deport a member of a family as such the decision, and the right of appeal, will be notified and it will at the same time be explained that it is open to the member of the family to leave the country voluntarily if he does not wish to appeal or if he appeals and his appeal is dismissed."

We cannot accede to Mr Riza's argument in this regard. Whilst in the usual course of events section 3(5)(c) is used to deport the wife and children of a male deportee, the words of paragraph 160 "there is power to make a deportation order against the . . . children under 18 of a person ordered to be deported on any of the grounds mentioned in paragraphs 156-159" clearly comprise cases in which children are being deported as the children of their mother when their mother is, so to speak, an overstayer in her own right. For these reasons we consider that the Secretary of State's decision was in accordance with the law and immigration rules. There remains to be considered the question of the exercise of discretion -- in other words the merits of the case. Mr Riza called Gulten and Ibrahim to give evidence before us. Gulten says that in August 1979 she came here to join her husband (the Home Office statement records that on arrival she told the immigration officer she wanted to stay in the United Kingdom for one month to visit her uncle). When she arrived she knew her husband was working in this country and she was given leave to enter for one month. According to her she made no application for an extension of her stay because her husband told her that he was doing everything necessary. When she arrived she meant to stay here for as long as her husband could arrange it. She says that her marriage broke up round about Christmas 1983 because her husband was having an affair with another woman. At the time of his arrest they were living half apart -- "sometimes he would come home and sometimes not". She agrees that when interviewed she said that they were living together at that time, but she tolls us now that this was not true and she only said this because of pressure brought to bear by her husband's uncle. She is living in a council flat, which she has occupied for some three years, and earns about @50 a week by sewing. She also receives money from a cousin in the United Kingdom. She has two uncles and an aunt here. Her husband is now in Famagusta but she does not know what he is doing. In Cyprus she has her parents and an uncle. She does not want to return to Cyprus because she would not be able to look after herself as she can in this country. Her children came here when they were only five and two years old respectively. They are now eleven and nine and if they had to return to Cyprus it would be a big upheaval for them. If she is deported she has nowhere in Cyprus to stay, her parents' house is very small and they have a grown up son (her brother) living with them in a three roomed house. There is no possibility of her going back to her husband. She gave her evidence in Turkish through an interpreter. When Ibrahim gave evidence he did so in English which he speaks like any London child. He says he can speak a little Turkish and that he converses with his mother in a mixture of Turkish and English. He went first to a primary school in London but now attends Eastlea Community School in East London. He says he has 15 friends there, mostly English. He cannot remember Cyprus very well and does not want to go back. A report has been produced from the Head of his school, from which it appears that he has serious problems with reading, writing and mathematics, but is very polite and helpful, and is a friendly and cheerful child. He certainly impressed us as such. On the appellant's behalf Mr Riza submitted that the Home Office had approached this case in the wrong way. They had first considered the case of the mother and then as a consequence the case of the children. In Mr Riza's submission they should first have considered the case of the children and then in the light of the conclusions to which they came regarding them, the case of their mother. The children have now spent six or seven years of their lives in this country -- in other words most of their lives. In view of their age no culpability can attach to them for overstaying. Deportation would have a disastrous effect upon them and would be disruptive not only of their education. What would become of them in Cyprus? It is evident, in Mr Riza's submission, that their father does not care as he has done nothing for them. The Secretary of State had made no adequate enquiries regarding the children and had exercised his discretion wrongly in coming to the decision which he had reached in their regard. Their appeal should be allowed. With regard to their mother, in Mr Riza's submission she had come not of her own free will, but her arrival had been dictated by the wishes of her husband. It was he who was to blame for not regularising her stay in this country. She had not knowingly stayed unlawfully as she thought her husband was doing everything necessary. Therefore the length of her residence in this country could properly be taken into consideration. On the day of her husband's arrest he had told a policeman that he was no longer living with his wife and children, and this was a fact known to the Secretary of State. The Secretary of State should have exercised his discretion in favour of Gulten also, and her appeal should be allowed. Mr Curwen referred us to the relevant immigration rules -- particularly the considerations contained in paragraphs 156, 161 and 163 of HC 169. Although it is our duty to consider the case against each appellant separately, it has not been suggested on the appellants' behalf that arrangements could be made for the children to remain in this country if their mother were deported (paragraph 163). In our view therefore it is necessary to consider the circumstances of the three appellants as a whole. We have most sympathy for the two children, as Mr Riza has stressed. They can in no way be blamed for their illegal stay in this country, where they have spent six or seven years out of the eleven years of their life in one case, and nine years in the other. They would no doubt have a far less pleasant life in Cyprus than they have here, and their education will no doubt suffer if they are deported. On the other hand they are both still very young and children of their age are generally very adaptable. We have no doubt that their Turkish would quickly improve if they lived in a Turkish environment. With regard to their mother, although Mr Riza has submitted that we must accept that she genuinely believed that her husband was doing everything necessary to ensure that her stay here was lawful because there is no evidence to the contrary, we consider the submission somewhat disingenuous, requiring us as it does to shut our eyes to 15 years experience of the knowledge of the immigration regulations possessed by Cypriot immigrants. In our opinion Gulten is of dubious veracity having regard to the statements made to the immigration officer upon arrival here as detailed in the Home Office explanatory statement, which we accept, and her own admission that when interviewed she said that she and her husband were living together which she now admits was untrue. We do not believe that she was unaware that she was staying here unlawfully. True, she has been here now some six or seven years, but out of this period she has only been here legally for one month. She is 32 years of age and there is no suggestion that she is physically unfit. She has relations in this country but she also has her parents and a brother in Cyprus. Apart from her immigration history she is a person of good character, and from the appearance of her children and the impression given us by Ibrahim, has brought up her children in an exemplary manner. Certainly her life will be less satisfactory and indeed probably hard if she and the children have to return to Cyprus, but she must have realised this when she decided to stay here as an illegal entrant. Paragraph 158 of HC 169 provides that deportation will normally be the proper course when a person has remained without authorisation. Were we to allow Gulten's appeal it would be tantamount to finding that a person who can obtain entry to this country and remain undetected for six years should normally be allowed to stay. This would not in our opinion be in accordance with paragraph 154 of HC 169, which sets out that in considering whether deportation is the right course the aim is an exercise of the power of deportation that it is consistent and fair as between one person and another. This is particularly so when one considers the large number of persons who have applied to come here or remain here legally and have been refused. For all these reasons and considering that Gulten has declined the offer to return her and her chldren to Cyprus at government expense, and balancing the compassionate circumstances of Gulten's case and the case of each of the children against the public interest in maintaining an effective system of immigration control, we consider that the Secretary of State's discretion was properly exercised, and the appeal of each of the three appellants is dismissed.

DISPOSITION:

Appeals dismissed

SOLICITORS:

Turkan & Co, London