Gyeabour v. Secretary of Statefor the Home Department

GYEABOUR v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal

[1989] Imm AR 94

Hearing Date: 24 October 1988

24 October 1988

Index Terms:

Deportation -- overstayer -- over ten years in United Kingdom -- decision to deport -- Ministerial statement that presence in United Kingdom for ten years or more was prima facie a reason to allow an individual to remain -- whether that was to be taken as factor of weight on assessment of appeal -- whether the appellant had a legitimate expectation that he would not be deported as an overstayer. Immigration Act 1971 s 3(5)(a): HC 169 paras 154, 156.

Held:

The appellant was a citizen of Ghana who had been an overstayer in the United Kingdom for nearly eleven years. When application was made for him to be granted indefinite leave to remain, the Secretary of State decided to initiate deportation proceedings against him as an overstayer. An adjudicator dismissed his appeal declining to take particular account of a Ministerial statement that ten years' presence in the United Kingdom was prima facie a reason to allow a person to remain. On appeal to the Tribunal the same point was argued. Held: 1. On the facts the appellant had a legitimate expectation that he would be allowed to remain. 2. The power of deportation had to be exercised consistently and fairly between one person and another and accordingly the appeal should succeed.

Cases referred to in the Judgment:

No cases are referred to in the determination.

Counsel:

L Fransman for the appellant; A Cunningham for the respondent PANEL: DL Neve Esq (President), Lady Bonham-Carter, JP, GJ Brown Esq JP

Judgment One:

THE TRIBUNAL: The appellant is a citizen of Ghana who appeals to the Tribunal against the determination of an adjudicator (Mrs CM Kennedy) dismissing his appeal to her against the decision of the Secretary of State to make a deportation order against him by virtue of section 3(5)(a) of the Immigration Act 1971. It was not in dispute before the adjudicator that the appellant had arrived in this country on 26 February 1977 en route to Mexico City. He returned here on 16 March 1977, when he was granted seven days' leave to enter. At the conclusion of the seven days no application for an extension of his stay had been made and nothing more was heard from him until 4 November 1987, when a firm of solicitors wrote to the Home Office applying on his behalf for indefinite leave to remain on the basis of his length of residence in this country. The appellant was interviewed on 12 February 1988 but his application was refused on 29 February 1988 in the following terms: "Crosling and Baldwin have applied on your behalf for indefinite leave to remain in the United Kingdom but you have not completed 4 years in a category leading to settlement as outlined in HC 169 paragraph 133 (a-f)." and on the same day the decision which is the subject of this appeal was made, and notice of the decision was served upon the appellant. At the appeal before the adjudicator the appellant gave evidence. He said that on his return from Mexico he was befriended by a customs officer called Mr Campbell with whom he stayed. He then discovered that his return ticket to Accra had expired, but he met a family acquaintance who helped him and he managed to obtain employment. He said he had been in full-time employment ever since. In November he had asked his solicitors to apply for indefinite leave on the basis of the length of time he had been here. He said that he had married a British citizen of West Indian descent on 9 March 1988. The adjudicator records: "I did not form a favourable impression of Mr Gyeabour as a witness. I found his allegations bizarre. In my opinion when he returned to the United Kingdom in March 1977 he had no intention of returning to Ghana within the period of his ticket; he came with the intention of finding employment and was successful in his intentions; he made determined efforts to remain incognito and was successful in this, also, for several years; when he received notice of deportation he contracted an "immigration" marriage." Later in her determination the adjudicator reviewed the considerations listed in paragraph 156 of HC 169 and dismissed the appeal. Upon the appeal coming before us Mr Fransman made two main submissions. The first of these was concerned principally with the adjudicator's findings of fact. In Mr Fransman's submission there was nothing bizarre about the allegations made by the appellant. His account of how he had been befriended by a customs officer was in fact corroborated by the Home Office statement. There was nothing particularly extraordinary about the expiration of his return ticket to Accra. The adjudicator had referred to the appellant's marriage to a British citizen, but this was a matter which she had not been entitled to take into account as it was an event which had occurred subsequent to the date of the decision which was the subject of the appeal. His second submission was as follows. On 29 November Mr David Waddington QC (the Minister then responsible for immigration) had made the following statement in Parliament: "The immigration rules provide that in deciding whether to deport an overstayer, full account is to be taken of all the relevant circumstances, with the public interest being balanced against any compassionate factors, including length of residence. Similar considerations apply in deciding whether to remove illegal entrants. Continuous unlawful residence in the United Kingdom amounting to 10 or more years is considered as prima facie reason for allowing a person to remain. Account is also taken of any countervailing factors, such as a criminal record. Each case is considered on its merits." In reference to this the adjudicator in her determination comments: "In my opinion the statement does no more than re-iterate the rules in precise form. I do not consider there is any ten year "barrier" as such. Each case has to be considered on its merits, taking the factors listed in paragraph 156 into account." In Mr Fransman's submission this was a misdirection because, in view of the statement, the ten years' unlawful residence had assumed a significance beyond the other considerations mentioned in paragraph 156, in that it had established a prima facie reason to allow an applicant to remain. Paragraph 154 required the rules to be administered in a manner consistent and fair as between one person and another. If Mr Waddington's statement was to be applied consistently and fairly between one person and another, deportation of the appellant would offend against paragraph 154. Furthermore, Mr Waddington's statement had given rise to a legitimate expectation by the appellant that he would be allowed to stay. He had been in this country for almost eleven years and indeed his application had been made as a result of Mr Waddington's statement. There were no other factors militating against his deportation. He had not, for example, been convicted of any criminal offence, neither had he been a charge on public funds. In reply Mr Cunningham conceded that the adjudicator had been in error in taking into account the appellant's marriage. Even if there had been corroboration of the appellant's friendship with a customs officer, nevertheless the adjudicator was entitled -- indeed it was her duty -- to assess the credibility of the appellant as a witness. With regard to Mr Waddington's statement, Mr Cunningham submitted that each case was considered on its merits, consistency and fairness was to be achieved by a proper exercise of the immigration rules. There was no automatic entitlement to settlement for a person who had been here for ten years. In his submission, there was no legitimate expectation in this case. We have considered the submissions in the light of the evidence contained in the file. The formation of immigration policy is no part of this Tribunal's functions and it is not for us to question the policy of the Home Office in this regard. However, at the date when the application was made on the appellant's behalf, it was the Minister's policy that continuous unlawful residence in the United Kingdom amounting to ten or more years was to be considered a prima facie reason for allowing a person to remain (we note that this policy has been changed by the present Minister, Mr Renton, since 5 November 1987 -- see Hansard for this date). The appellant's application was made before this change of policy and there were no other particular factors militating against him. This being the case, in our view he had a legitimate expectation that he would be allowed to remain, and a refusal of his application was not consistent and fair as between him and other applicants. For these reasons this appeal must be allowed.

DISPOSITION:

Appeal allowed

SOLICITORS:

Trott & Gentry, Islington