R v. Immigration Appeal Tribunal, Ex parte Surendra Jessa Chundawadra
- Author: High Court (Queen's Bench Division)
- Document source:
-
Date:
28 January 1987
R v IMMIGRATION APPEAL TRIBUNAL ex parte SURENDRA JESSA CHUNDAWADRA
Queen's Bench Division
[1987] Imm AR 227
Hearing Date: 28 January 1987
28 January 1987
Index Terms:
Deportation -- "conducive to the public good" -- whether s 3(5)(b) of the 1971 Act is in conflict with the European Convention on Human Rights. Immigration Act 1971 s 3(5)(b): HC 169 paras 156, 159: European Convention on Human Rights arts 8, 13.
European Convention on Human Rights -- the extent to which it may be relied on in English Law.
Misuse of drugs -- whether in any event the offence of illegally importing large quantities of a controlled drug justified deportation under the terms of the Convention.
Held:
The applicant was the subject of deportation proceedings under s 3(5)(b) of the Act. His appeal to the Tribunal was dismissed. He had been found guilty of involvement in the importation of 10 kilos of cannabis. Before the Tribunal, article 8 of the European Convention on Human Rights had been prayed in aid. The Tribunal in its determination, while specifically referring to the factors it was obliged to take into account under paragraph 156 of HC 169, did not refer to the arguments addressed to it on the Convention. On application for judicial review it was submitted that in that regard the Tribunal erred in law. The requirements of the Convention that a person should have "an effective remedy" if his rights were violated (art 13) was negated if an appellate body was not prepared to entertain an argument based on the Convention. The essence of the submissions io the Tribunal were repeated before the Court. Held: 1. The European Convention on Human Rights had only limited application in English law. If there were ambiguity in a statute it could be an aid to interpretation: it could not override or replace legislation that is itself clear. There was no ambiguity in s 3(5)(b) of the 1971 Act. 2. In any event, if the Convention had restricted generally the ambit of s 3(5)(b), the crime of which the applicant had been found guilty was of such seriousness as not to afford him any protection against deportation on that basis. "There is an interest of the highest importance in demonstrating not merely to the person concerned but more importantly to others who might be minded to act as couriers that an offence of that character may carry a very severe penalty indeed". 3. On a careful reading of the Tribunal's determination, in which they referred to the factors in paragraph 156 of HC 169 (which include "any representation received on the person's behalf), it was to be concluded that they had not ignored the submissions made to them on the provisions of the Convention.Cases referred to in the Judgment:
R v Miah [1974] 1 WLR 683: [1974] 2 All ER 377. R v Secretary of State for the Home Department ex parte Bhajan Singh [1976] QB 198: [1975] 2 All ER 1081; R v Secretary of State for the Home Department ex parte Phansopkar [1976] QB 606: [1975] 3 All ER 497. R v Chief Immigration Officer, Heathrow ex parte Salamat Bibi [1976] 1 WLR 979: [1976] 3 All ER 843. Fernandes v Secretary of State for the Home Department [1981] Imm AR 1. Silver v United Kingdom [1983] 5 EHRR 347. Abdulaziz and ors v United Kingdom [1985] 7 EHRR 471.Counsel:
R Drabble for the applicant; G Pullman for the respondent PANEL: Taylor JJudgment One:
TAYLOR J: This is an application for judicial review of a decision of an Immigration Appeal Tribunal dated 5 July 1985. The Tribunal rejected an appeal by this applicant against a decision of the Secretary of State to deport him, that decision being made under section 3(5)(b) of the Immigration Act 1971. The Secretary of State also gave directions for his removal to Tanzania. The application is made by leave of the Court of Appeal, which in that regard reversed the decision of the single judge who had declined to give leave. The factual background to the matter is as follows. This applicant came from Tanzania with his parents on 23 October 1976. He was then aged 18, and his entry clearance was endorsed "settlement with parents". He is a Tanzanian national. His father is a British protected person and his mother is an Indian national. It is said that he now has no relatives at all in Tanzania. The reason why the family left there was that his father, as a British protected person, was unable to obtain extension of his trading permit -- the conditions for East African Asians in Tanzania at the time were bad -- and they decided therefore to come to the United Kingdom. The family has lived together as a unit at 51 Moira Street, Leicester. The unit consists of the parents, this applicant, and the applicant's wife and children, who came to live with them later. He was married on 1 September 1979 to a lady who is an Indian national with no Tanzanian connections at all. On 14 August 1980, a daughter was born. Accordingly the family consisted of that child, the applicant and his wife, and the applicant's parents. The matter which has given rise to the deportation order, is a conviction of this appellant in March 1984. On 21 of that month, he was found guilty at Aylesbury Crown Court, having pleaded not guilty, on a charge of being [1987] Imm AR 227 involved in the illegal importation of a large quantity of cannabis resin. The quantity in question was some 10 kilos, which had an estimated street value of @20,000. He was sentenced to 30 months' imprisonment. It seems that the applicant and his wife had a period of about a year of estrangement between September 1983 and sometime in 1984. Moreover, it seems that the offence which the applicant committed was a joint offence with a lady called Miss Nayana Patel. However, the evidence in this case has been, and it was accepted by the Tribunal, that there had been a complete reconciliation between the applicant and his wife. The Secretary of State decided, having regard to the conviction, that the applicant ought to be deported and that such a course would be conducive to the public good. The applicant appealed against that decision directly, as is the appropriate course, to the Immigration Appeal Tribunal. The Tribunal heard his case on 21 June 1985. Evidence was given by the applicant, by his wife, and by an insurance underwriter who had known him for some years. The Tribunal gave its decision on 5 July 1985. Having reviewed the evidence, the final paragraph of the determination read as follows:"We have carefully considered the evidence and the manner in which discretion should be exercised, having particular regard to the matters set out in paragraph 156. In our view there are unbdoubtedly compassionate circumstances in this case, in that the appellant has strong family connections here by reason of his parents, his daughter and his wife with whom he is now said to be reconciled. We also recognise that a return to Tanzania must be a highly unpleasant prospect for him to face, and that life will not be easy there. Nevertheless the offence of which he was convicted involved a large amount of cannabis resin and was in our view of an extremely serious nature. In our opinion the compassionate circumstances do not outweigh the consideration of public interest in this case, and this appeal is dismissed."
The application before this court is to challenge that decision of the Tribunal. It is challenged on the basis that the Tribunal erred in law in failing to take into consideration article 8 of the European Convention on Human Rights and in effect also that no reasonable Tribunal could have arrived at that decision. It is convenient first to look at the statutory provisions and rules applicable to this case. Section 3(5)(b) reads as follows: "A person who is not a British citizen shall be liable to deportation from the United Kingdom --. . .
(b) if the Secretary of State deems his deportation to be conducive to the public good." The relevant rules are to be found in House of Commons paper 169 and are rules 156 and 159. It would be convenient to read 159 first:"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 in the light of the relevant circumstances known to the Secretary of State including those listed in paragraph 156."
I look therefore next at paragraph 156, which reads:"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 in 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 representationsreceived on the person's behalf . . ."
It is not necessary to read the final words of that rule. I refer next to the two articles of the Convention on Human Rights to which Mr Drabble has made reference. That convention is dated 1950 and it is accepted that it has been ratified by the Government of the United Kingdom. Article 8 reads as follows: "(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is . . . necessary in a democratic society . . . for the prevention of disorder or crime, for the protection of health . . . " The other article relied on by Mr Drabble is article 13, which reads as follows:"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
Mr Drabble puts his case in this way, that although an argument was addressed to the Tribunal based upon article 8 of the Convention, the Tribunal made no reference to that argument or to that article in their determination and one ought therefore to infer that they had decided it ought to be disregarded: they ought not to have decided that. Mr Drabble says the law requires that regard should be had by the Secretary of State and, in reviewing his decision, by the Tribunal to the article when considering the decision to report. He further submits that although there is recourse to the Tribunal to challenge the decision of the Secretary of State, that recourse does not satisfy article 13 of the Convention if the Tribunal in question is not prepared to entertain or give consideration to any argument based upon a relevant article of the Convention. Mr Drabble cited a number of decisions of the European Court of Human Rights to indicate by reference to case law the practical effects of article 8 and the extent of the rights referred to there. In particular he emphasised that the phrase in paragraph 2 of article 8, dealing with the exception to the exercise of a right, was the phrase, "necessary in a democratic society". He drew a distinction between "necessary" and the phrase in section 3(5)(b) of the Immigration Act, "conducive to the public good". In Silver v United Kingdom 5 EHRR 347, at paragraph 97 there is a judicial consideration of the phrase, "necessary in a democratic society". Mr Drabble submits the effect of it is that "necessary" does not mean indispensable, but it means something more than desirable or conducive. Therefore, he argues, the test according to the Convention as to whether someone should be considered appropriate for deportation is a more favourable test to the proposed deportee than that contained in our domestic legislation. He also referred me to the case of Abdulaziz and Others v United Kingdom 7 EHRR 471, in which there was consideration of the same provision, particularly in relation to drug abuse. He accepts that it is a pressing social need that drug abuse should be controlled and indeed should be combatted. But having regard to the observations in that case, he emphasized the importance of the removal of a person because of a drug offence being a proportionate response to the offence in question and the person being considered. Mr Drabble says those considerations are important, because they do, in his submission, draw a distinction between the standards which fall to be applied if article 8 is taken into consideration as against those applicable in our domestic law. What then is the relevance and possible effect of the Convention so far as English law is concerned? Mr Drabble referred me to a line of authority. He concede that as the line preceded chronologically it became thinner so far as this case was concerned. He referred to R v Miah [1974] 1 WLR 683, and in particular to a passage from the speech of Lord Reid at page 694, which asserted that it was hardly credible that any government department would promote, or that Parliament would pass, retrospective criminal legislation and relied upon an article of the Convention in support of that proposition. He further referrred to two cases reported in [1976] 1 QB, Bhajan Singh at page 198, and Phansopkar at page 606. In the former of those two cases, Lord Denning, at page 207, said:"The court can and should take the Convention into account. They should take it into account whenever interpreting a statute which affects the rights and liberties of the individual. It is to be assumed that the Crown, in taking its part in legislation, would do nothing which was in conflict with treaties. So the court should now construe the Immigration Act 1971 so as to be in conformity with a Convention and not against it."
In the latter case, Lord Scarman also made observations in favour of taking the Convention into account. However, two later cases are to the contrary effect. They are both decisions of the Court of Appeal. The first is ex parte Salamat Bibi [1976] 1 WLR 979. That was a case which was concerned with the decision of an immigration officer. At page 984, at letter G, Lord Denning said:"The position as I understand it is that if there is any ambiguity in our statutes, or uncertainty in our law, then these courts can look to the Convention as an aid to clear up the ambiguity and uncertainty, seeking always to bring them into harmony with it. Furthermore, when Parliament is enacting a statute, or the Secretary of State is framing rules, the courts will assume that they have regard to the provisions of the Convention, and intended to make the enactment accord with the Convention: and will interpret them accordingly. But I would dispute altogether that the Convention is part of our law. Treaties and declaratinos do not become part of our law until they are made law by Parliament."
He then amended something that he had said in the case of Bhajan Singh. He went on to say:"I may also add this. The Convention is drafted in a style very different from the way which we are used to in legislation. It contains wide general statements of principle. They are apt to lead to much difficulty in application: because they give rise to much uncertainty. They are not the sort of thing which we can easily digest. Article 8 is an example. It is so wide as to be incapable of practical application. So it is much better for us to stick to our own statutes and principles, and only look to the Convention for guidance in case of doubt."
Roskill LJ, as he then was, gave a judgment which was, if anything, rather stronger against the importation of the Convention. It is perhaps most apposite to refer to a passage from the judgment of Geoffrey Lane LJ, as he then was, at page 988. He said:"It is perfectly true that that Convention was ratified by this country. It is true that in 1966 and thereafter Her Majesty's Government has delcared that article 25 is available to the citizens of this country and of which they may take advantage. Nevertheless, the Convention, not having been enacted by Parliament as a statute, it does not have the effect of law in this country; whatever persuasive force it may have in resolving ambiguities it certainly cannot have the effect of overriding the plain provisions of the Act of 1971 and the rules made thereunder."
It would seem therefore from that case, and from the various judgments given in it, that the extent to which the Convention is relevant or may be used is to assist in interpreting our statute law if there is ambiguity or doubt. What it certainly cannot do is override or replace or provide a test under our legislation where our legislation is perfectly clear. I may say, there is no suggestion in this case that section 3 of the Immigration Act or the rules made thereunder are in any way obscured by ambiguity or doubt. The most recent authority cited was the case of Fernandes [1981] Imm AR, 1. That again was a decision of the Court of Appeal. The Secretary of State had made a deportation order. The applicant had sought to appeal agaienst that decision and pending the appeal had invited the Secretary of State to grant a stay on the deportation order. He did not grant a stay and judicial review of the Secretary of State's decision was refused. The matter then went to the Court of Appeal which dismissedthe applicant's appeal. Waller LJ said:"In my judgment, there was no legal obligation on the Secretary of State to consider whether or not this was a contravention of the articles of the Convention. I have little doubt that the Secretary of State, in considering this application did consider these facts as part of the general picture, but the question which this Court has to ask itself is whether, when the letter was received, the Home Secretary was acting fairly and can it be said, on the information before the Court, that his decision was such that no reasonable man in his position could have made it? In my judgment that is quite impossible. It is a conclusion which I can accept, and I would dismiss the appeal."
tAckner LJ said:"I agree. It seems to me that there are three separate bases upon which this appeal must fail. Firstly, that the Secretary of State in exercising his statutory powers is not obliged to take into account the provisions of the Convention which are notpart of the law of this country. The Convention is a Treaty and may be resorted to in order to help to resolve some uncertainty or ambiguity in municipal law." -- He then referred to Salamat Bibi.-- "If this were not the law, it would seem to my mind to be quite impractical to make effective immigration control."
Watkins LJ agreed with the judgments which had been given. That decision seems to me binding upon this court. Mr Drabble has sought to argue that it is not binding, because a short passage in the judgment of Waller LJ suggested that he may have decided the case on another ground. He had said earlier at page 5 of the report:"Mr Campbell then put an alternative argument, namely that the Court should only look at the events of August 1980, and he submitted that there was no evidence that the Secretary of State ever took into account the European Convention. I would only say ther is no evidence that he did not. In my opinion if it had been relevant, there is no substance in that argument. It was, in my judgment, open for the Secretary of State to make a decison either way and it is quite impossible to say that any reasonable Secretary of State could not have come to the conclusion that he should not impose a stay."
Basing himself upon that passage, Mr Drabble suggests that the decision, at any rate so far as the judgment of Waller LJ was concerned, really turned upon the fact that the evidence did not support that the Convention had not been taken into account. In my judgment, that is not an argument which can be sustained. It seems clear to me on the whole of Waller LJ's judgment that he was giving his decision on the point of principle as well as upon this point. So far as Ackner LJ is concerned, he clearly was giving his decision on the first point he mentioned, namely, the lack of obligation on the part of the Secretary of State to take into account the Convention, and Watkins LJ agreed with those two judgments. I have therefore come to the conclusion on the authorities that there was no obligation on the Secretary of State in this case to take into account the provisions of article 8, nor in reviewing his decision was that, in its specific form under the Convention, a consideration which it would have been wrong of the Tribunal to exclude. That in itself would be sufficient to decide this application. However, I should go on to say this. It seems to me that, just as Waller LJ said in the case cited, there is no evidence here to suggest that the Tribunal did not take into account the Convention. They had been addressed by Mr Drabble on the basis that article 8 was a relevant consideration. They certainly say nowhere in their determination that they regard it as being irrelevant or outside the scope of their jurisdiction. The reason why they did not mention it specifically may well be that the matters to be taken into consideration under paragraph 156 are, so far as the facts are concerned, very similar to those which would be required to be taken into consideration by article 8. The wording of rule 156 includes this final item in the tabulation of matters to be included for consideration: "any representations received on the person's behalf". It is quite clear that the representations received on the person's behalf in this case included representations based upon article 8. In their determination, the Tribunal say:"We have carefully considered the evidence and the manner in which discretion should be exercised, having particular regard to the matters set out in paragraph 156."
No doubt for completeness and to put the matter beyond any peradventure, they might have added: "Including the argument addressed to us on the person's behalf on the basis of article 8." They did not do so, but I would not be prepared to find that it could therefore properly be inferred that they ignored it. It is much more likely that they would have mentioned that they did not think it was relevant to their considerations if that was their state of mind. Finally, I would say that on the factual background to this case, if one looks at the decision of the Tribunal and its review of the evidence, there are certainly grounds upon which it would be perfectly reasonable to upohold the decision of the Secretary of State. This was a case not of some minor drug offence, being in possession of a small amount of drugs or even being in possession of it with intent to supply. This was a serious case of the importation of a large quantity of cannabis. Clearly the object must have been commercial. There is an interest of the highest importance in demonstrating not merely to the person concerned but more importantly to others who might be minded to act as couriers that an offence of that character may carry a very severe penalty indeed. In this case it carried a penalty of 30 months' imprisonment, but it was considered by the Secretary of State that it was also one which justified deportation. Even if one looks at the criteria of the article itself, one can well see that the facts here could justify applying the exception that this was a deportation necessary for the prevention of crime and for the protection of health. Certainly I would not be prepared to hold that a decision to that effect was one which no reasonable Secretary of State, or as the decision which is challenged here makes more relevant, one which no reasonable Tribunal could have reached. For all those reasons this application must be dismissed.DISPOSITION:
Application dismissedSOLICITORS:
Thakrar & Co, Southall; Treasury SolicitorDisclaimer: Crown Copyright
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