R v. Secretary of State for the Home Department, Ex parte Kusi-Boahem

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte KUSI-BOAHEM

Queen's Bench Division

[1988] Imm AR 540

Hearing Date: 17 June 1988

17 June 1988

Index Terms:

Deportation -- applicant convicted of offence of overstaying -- recommendation by court for deportation -- deportation order made accordingly under s 3(6) of the 1971 Act -- Whether Secretary of State entitled to proceed under s 3(6) or whether obliged to proceed under s 3(5)(a), thus giving the applicant a right of appeal -- the meaning in s 3(6) of the words "without prejudice to the operation of subsection (5) above". Immigration Act 1971 ss 3(5), 3(6), 5(1), 15(1), 15(2).

Held:

The applicant was an overstayer. She was convicted of that offence and the court made a recommendation for deportation. She did not have any other criminal convictions. Following the recommendation of the court and pursuant to section 3(6) of the 1971 Act, the Secretary of State signed a deportation order. It followed that the applicant had no right of appeal, to the appellate authorities which she would at the time have enjoyed if, as an overstayer, the deportation had been initiated under s 3(5)(a). Before the court, and relying on the opening words of s 3(6) ("without prejudice to the operation of subsection (5) above") it was argued that in the events which had happened, the Secretary of State should have proceeded under s 3(5)(a). The operation of that subsection had been prejudiced by denying a right of appeal through the immigration appellate authorities to the applicant. Held: 1. The phrase "without prejudice to the operation of subsection (5) above" is designed to ensure that the powers of the Secretary of State to deport as conducive to the public good are not cut down by any reference in subsection (6) to the power of a criminal court to make a recommendation for deportation. 2. It followed that on the facts, the Secretary of State was entitled to proceed as he had done under subsection (6): he was not bound to proceed under section 3(5)(a).

Cases referred to in the Judgment:

No cases are referred to in the judgment

Counsel:

A Riza for the appellant; G Pulman for the respondent PANEL: Schiemann J

Judgment One:

SCHIEMANN J: This is an application for judicial review which raises what I am told is a previously undecided matter in relation to deportation. The facts of the matter are not substantial and not in dispute. The applicant had leave to enter the country for six months and became an overstayer, I think in 1985. In September 1986 she was convicted for over-staying and recommended for deportation by a Magistrates' Court under section 6 of the Immigration Act 1971. The Secretary of State decided to make a deportation order under section 3(6) of that Act. The submission on behalf of the applicant is that the Secretary of State was not entitled so to do until such time as the applicant had made an appeal under section 15 of that Act. Section 3(5) reads as follows: "A person who is not a British citizen shall be liable to deportation from the United Kingdom: (a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; (b) if the Secretary of State deems his deportation to be conducive to the public good; or (c) if another person to whose family he belongs is or has been ordered to be deported." Subsection (6) reads: "Without prejudice to the operation of sub-section (5) above, a person who is not a British Citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so." Other relevant sections are section 5(1), which provides that: "Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him . . ." Section 15(1) reads as follows: "Subject to the provisions of this part of this Act, a person may appeal to an adjudicator against: (a) a decision of the Secretary of State to make a deportation order against him by virtue of section 3(5) above; or (b) a refusal by the Secretary of State to revoke a deportation order made against him." Then in subsection (2): "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 . . ." Stepping back from that, at first blush the general procedure seems to be as follows: in relation to persons who fall within the category set out in section 3(5), at the moment they fall within the categories, and in particular so far as (a) is concerned the moment they become overstayers, they then become liable to deportation. Thereupon they may well be served with notice of a decision of the Secretary of State to make a deportation order against them, by virtue of section 3(5), and they can then appeal against that under section 15 to an adjudicator and then to an Immigration Appeal Tribunal. That is the method of challenging those cases looked at on their own. So far as subsection (6) is concerned, looked at on its face, there is a different procedure, namely, that if there is somebody who is a foreign criminal, in the sense that he has been convicted of an offence punishable with imprisonment, then the ordinary criminal court which convicts him can make a recommendation in relation to his deportation. It need not do so and it is common knowledge that it frequently does not, but sometimes it does, and that sentence of that court can be appealed, sometimes no doubt with success and sometimes not with success, within the hierarchy of the criminal courts. At the end of that time if the recommendation is still in force, there is then still a further decision to be taken by the Secretary of State, namely whether or not to make a deportation order, and it is common ground between the parties that he is at liberty to choose whether or not so to do, guided no doubt by the immigration rules which give some guidance on this, to which I need not turn. Looking firstly at the position of a person who is not guilty of any form of immigration offences, but is merely a foreign burglar, his position is quite clear, and I do not think the contrary is argued, namely that he has his rights of appeal in the criminal courts and then it is up to the Secretary of State, if recommendation is made, to decide whether or not to make the order. Looking, on the contrary, to a person who is merely an overstayer, though otherwise a person of blameless character and not convicted of any offence, the moment his limited leave expires he falls within subsection (5)(a). It may be that matters stay there. It may be that the Secretary of State decides to make a deportation order. If he does he will tell him. At that point he may appeal by virtue of section 15. The problem I am faced with in the present case arises from the interaction of those two subsections. What is said is that the Secretary of State could, had there been no prosecution and recommendation by the criminal courts, have proceeded under subsection (5)(a) in relation to this lady, and if he had done so and served her with a notice of an intention to make a deportation order, then she would have had a right of appeal which she might have exercised. Instead what has happened is that no action was taken until the recommendation for deportation had been received from the criminal courts and it is said that the Secretary of State is seeking to deprive this lady of her potential rights of appeal under subsection (5) by making the order under subsection (6) and that he is not so allowed to deprive her of the appeal machinery set out by Parliament. That is the argument as I understand it. It is based essentially on the words at the beginning of subsectin (6), namely "without prejudice to the operation of subsection (5) above". It is said that subsectin (5) is being prejudiced because the appeal to the adjudicator is now not capable of being run because you, the Secretary of State, have chosen to act directly on the recommendation of the court. In my judgment this argument is without foundation. The purpose of the words at the beginning of subsection (6) are merely to make it clear that the words of subsection (5)(b), which authorise the Secretary of State to make a deportation order if he deems it to be conducive to the public good, are not to be cut down by reason of any reference in the subsection to the possibility of a criminal court making a recommendation for deportation. It seems to me that it is, as was said, completely beyond argument that a person who is a pure burglar can be deported following the recommendation of a criminal court, notwithstanding the fact that the Secretary of State might very well deem his deportation to be conducive to the public good. There is no suggestion in such a case the Secretary of State is bound to operate under subsection (5). It seems odd that if a pure burglar can be dealt with under subsection (6), that somebody who is also liable for deportation under subsection (5) should somehow be in a better or different position. As I have indicated, my impression of the scheme of this Act is that Parliament intended there to be at least two separate minds applied to the problem of deportation and it achieves that in different ways, depending on whether the administrative ladder is being followed or whether it is a mixture of the criminal and the administrative ladder. In those circumstances the relief which is sought here, namely an order to quash a deportation made against the applicant by the Secretary of State, which order is made and expressed to be made under subsection (6), should be refused.

DISPOSITION:

Application dismissed

SOLICITORS:

Iqbal & Co, London W2; Treasury Solicitor