R v. Immigration Appeal Tribunal, Ex parte Kalsoom Razaque

R v Immigration Appeal Tribunal ex parte Kalsoom Razaque CO/1305/88

Queen's Bench Division

[1989] Imm AR 451

Hearing Date: 11 May 1989

11 May 1989

Index Terms:

Deportation -- overstayer -- previously refused variation of leave on basis of marriage -- explanatory statement indicated that Secretary of State had doubted validity of the marriage -- adjudicator made finding of fact that marriage was valid -- but found applicant was overstayer and Secretary of State's discretion correctly exercised -- whether adjudicator having found error in factual basis of Secretary of State's decision should have made a specific finding as to the lawfulness of that decision -- whether entitled to review case on the basis of discretion. Immigration Act 1971 ss 18, 19(1): HC 169 paras 156, 158.

Notice -- intention to deport -- immigration history recounted in notice: conclusion set out that applicant was an overstayer -- whether adequate reasons -- whether notice invalid -- whether adequacy of reasons in a notice an issue for the appellate authorities -- whether their jurisdiction limited to the correctness of the decision itself. Immigration Act 1971 ss 3(5), 18, 19: Immigration Appeals (Procedure) Rules 1984, r 8(1): Immigration Appeals (Notices) Regulations 1984 r 4(1).

Held:

Judicial review was sought of the Tribunal's refusal to grant leave to appeal an adjudicator's determination upholding the Secretary of State's decision to deport the applicant pursuant to s 3(5)(a) of the 1971 Act. The applicant was a citizen of Pakistan who, after admission as a visitor had sought variation of leave on the basis of marriage. That was refused. She was an overstayer. The notice of intention to deport recounted her immigration history and asserted she had remained without leave. In the explanatory statement prepared for the appeal before an adjudicator the Secretary of State also doubted the validity of the marriage. The adjudicator found as a fact that the marriage was valid: he reviewed the exercise of discretion and upheld the Secretary of State's decision. Before the Court it was argued that once the adjudicator had concluded that the Secretary of State had erroneously taken into account the asserted invalidity of the marriage, he should have allowed the appeal as not being in accordance with the law under s 19(1)(a)(i) of the Act: he erred in proceeding to review the exercise of discretion under s 19(1)(a)(ii) of the Act. It was also asserted that the notice of intention to deport was invalid, in that it did not give adequate reasons. For the Tribunal it was argued that the notice, on the facts, was not invalid, but even if it were, the immigration appellate authorities, were, under the Act, only concerned with the validity of the decision, not with procedural matters such as the adequacy of the notice. Held: 1. Under s 19 of the Act the adjudicator was entitled to review the discretion of the Secretary of State and to assess the relevant factors set out in the rules, even though he had made a finding of fact as to the validity of the marriage at variance with the view of the Secretary of State. 2. On the facts, the notice of intention to deport gave adequate reasons. 3. The Court was inclined to accept counsel's contention that the appellate authorities were not concerned, in cases of this kind, with procedural matters such as the adequacy of a notice, but the judgment did not rest on that argument.

Cases referred to in the Judgment:

Taj Mohd Swati v Secretary of State for the Home Department [1986] 1 WLR 477: [1986] Imm AR 88.

Counsel:

R Gordon for the applicant; D Pannick for the respondent PANEL: Farquharson J

Judgment One:

FARQUHARSON J: This is an application for certiorari by way of judicial review seeking to quash the decision of the Immigration Appeal Tribunal made on 18 July, 1988 whereby the Tribunal refused the applicant leave to appeal against the determination of an adjudicator dated 13 June, 1988. The adjudicator in turn had dismissed the applicant's appeal against the Secretary of State's decision to make a deportation order against her. That decision on the part of the Secretary of State was made on 17 December, 1987. It is useful to look at the facts by way of a chronology which has been helpfully provided for me. The applicant, who is a citizen of Pakistan, arrived in the United Kingdom on 29 June, 1985. She asked to be admitted for a term of 2 months as a visitor and gave assurances that she would not wish to stay beyond that time However, that perhaps is not of great consequence because soon afterwards she asked for an extension of her stay for a further 6 months beyond the 2 already granted. She was at the time staying with her sister. Such leave was granted and the time which she was permitted to be in this country was extended until 31 May, 1986. Indeed, that is the limit of the time she has been permitted to remain in this country throughout although she has stayed for a good deal longer than that. In April 1986, prior to the expiry of her leave, the Home Office received a denunciatory letter concerning the applicant suggesting that she was proposing to get married for the purpose of obtaining leave to remain in this country. In fact on 9 May, 1986 she did marry a Mr Razaque, who was also a citizen of Pakistan, but settled in the United Kingdom. On 11 July, 1986 the applicant's solicitors applied to the Home Office for the applicant to have leave to remain in the United Kingdom as the wife of Mr Razaque enclosing a copy of the marriage certificate. Thereafter, the Home Office made a number of enquiries of the applicant but unhappily those enquiries never reached her owing to some lack of communication between her and her solicitor. On 26 May, 1987, partly arising from those circumstances, the Secretary of State refused the applicant permanent leave on the basis of the time she had taken to produce the necessary information. It was on 2 December of the same year, as I have already noted, that the Secretary of State gave notice of his decision to make a deportation order. The following February, the applicant having given notice of appeal against that decision, an explanatory statement was issued by the Secretary of State to which we shall have to refer. Then the procedure which I outlined at the beginning of this judgment was followed as she went up the hierarchy of the appeal structure. Mr Gordon, on the applicant's behalf, submits that the adjudicator's decision in this matter from which the respondent Tribunal refused leave to appeal was unlawful. For that reason leave should have been given. He says, firstly, that the notice of the decision to make a deportation order was a nullity in that the Secretary of State failed to give reasons for his decision within the terms of the regulations. In his notice, the Secretary of State said: "You were given leave to enter the United Kingdom on 29 June, 1985 for two months as a visitor and you were granted an extension of stay on that basis until 31 May, 1986. An application to remain further as the wife of a man settled here was refused on 26 May, 1987 without the right of appeal. The Secretary of State is satisfied that you have remained without authority." It seems to me there are four matters recited there. Firstly, the leave to enter the United Kingdom and to remain for 2 months as a visitor. Secondly, that there was an extension of that stay until 31 May, 1986. Thirdly, that she made an application to remain as the wife of a settled man but that application was refused, and fourthly, the Secretary of State is satisfied that she has remained without authority. Factually, each of those matters seem to be incontestable. What is the basis upon which the Secretary of State makes his decision? That, as has been pointed out to me, is contained initially at any rate in section 3(5) of the Immigration Act 1971, which is in these terms: "A person who is not patrial 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; or (b) if the Secretary of State deems his deportation to be conducive to the public good . . ." I turn to section 18, which is the next relevant section in the context of the present submission, and which is an enabling section authorising the Secretary of State to make regulations which provide: "(a) for written notice to be given to a person of any such decision or action taken in respect of him as is appealable under this part of this Act . . . (b) for any such notice to include a statement of the reasons for the decision or action and, where the action is the giving of directions for the removal of any person from the United Kingdom, of the country or territory to which he is to be removed." I have been referred to the regulations which were made by the Secretary of State under that provision. The relevant regulation is the Immigration Appeals (Notices) Regulation 1984. Regulation 4(1) provides: "Any notice given under Regulation 3 shall (a) include a statement of the reasons for the decision or action to which it relates." Whilst I am dealing with the regulations, although it is not immediately in sequence, I should note that I was also referred to the Immigration Appeals (Procedure) Rules 1984, which by rule 8(1) state: "Subject to the provisions of other paragraphs, the respondent in an appeal shall, as soon as practicable after notice of the appeal is given, prepare a written statement of the facts relating to the decision or action in question and the reasons therefore, and take such steps as are necessary to ensure that the statement is referred to an adjudicator or the tribunal, as appropriate, and that a copy thereof is given to the appellant." It is to be emphasised therefore that the earlier regulation made under section 18 refers to a statement of the reasons for the decision or action to which it relates and the explanatory statement which is put in after the notice of appeal has been filed refers to preparation of a written statement of the facts relating to the decision or action in question. So it is to be supposed that the explanatory statement would be far more compendious in detail than the statement of the reasons contemplated by the Immigration Appeals (Notices) Regulations. Mr Gordon therefore submits that as there is that statutory duty to give reasons a failure to do so must mean, as he submits is the case here, that the notice is a nullity. He makes a number of associated submissions on that basis in which he says it is not sufficient simply to repeat the words of a particular section, which is the empowering section for the delivery of the notice. That does not constitute, in his submission, a reason. Whilst conceding that the expression of reasons may be exiguous, they must on the other hand be adequate and that it is not appropriate, to adopt the words of the Master of the Rolls in Swati [1986] 1 WLR 477, simply to make a ritual incantation of words. In short, they have to bring to the notice of the applicant or the deportee in the case concerned the reasons, why it is that he or she is being deported. Mr Pannick submits that this is a bad point on the part of the applicant. He says that if one looks at section 18, and more specifically at section 19, one sees that the powers of the adjudicator, as he would have it, do not extend to a review of such a matter. Section 19 provides: "(1) Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this part of this Act -- (a) shall allow the appeal if he considers (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal. "(2) For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purpose of subsection (1)(a)(ii) no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so." I have read the whole of that subsection but the part with which we are immediately concerned is the first part of subsection (1). Mr Pannick's argument is that the adjudicator is thereby empowered to allow the appeal if he considers that the decision or action against which it is brought was not in accordance with the law. Mr Pannick therefore submits that the decision or action with which we are presently concerned and with which the adjudicator is properly concerned is the decision to deport. He is not concerned that the notice which is directed to the subject of the order does not give adequate reasons. The adjudicator is concerned, only with the merits of the appeal before him rather than the procedural matters concerning the service of the notice. That must be the position, he said, if one looks at the words "decision or action". Precisely the same phrase is to be found in section 18(1)(a), which is the empowering section to make the regulations to which I have already referred. The second point taken by Mr Pannick is that, in his submission, there is no illegality in the notice. He invites the court to contrast the regulations by observing the words in the notices regulations, that the Secretary of State gives only the reasons for the decisions as distinct from the procedural regulations where he is required to set out the facts relating to the decision. Mr Pannick further submits that the duty to give reasons is not mandatory as urged by Mr Gordon, a submission which I would find some difficulty in accepting having regard to the statutory provisions to which I have just referred. Finally, in reply to the applicant's argument, he submits that the notice in fact complied with the obligation cast upon the Secretary of State. I am inclined to accept Mr Pannick's first point, namely that the adjudicator when hearing an appeal in a case of this nature is not concerned with these procedural matters, that is to say with the adequacy of the notice. What he is concerned with is the decision itself and whether that is correct in law or on the associated matters of discretion which may arise under it. However, I prefer not to rest this judgment on that particular argument. I turn back to the question of the contents of the notice. In my judgment, the reasons given by the Secretary of State in fact do conform with the requirements of the section, and indeed with the regulations. I look once again at section 3(5) and observe that under (a) the power to deport relates to a person who either has only a limited leave to remain and does not observe a condition attached to the leave or remains beyond the time limited by the leave. I agree that if the Secretary of State was to give as his reasons for issuing or making his decision to deport a repetition of the whole of that sub-paragraph it would be inadequate. Apart from anything else, it would be ambiguous and would not identify the reasons for his decision. But it seems to me, on the other hand, that it is perfectly open to him to say that the reason for his decision is because the applicant has remained beyond the time limited by the leave. Of course, he must add to those reasons the basis for them, namely when it was the leave was given, for how long and the extent to which the deportee has overstayed. That, in this case, is what in fact he has done. It seems to me that anybody in those circumstances must be perfectly well-advised of the reasons why the Secretary of State has made the decision. Indeed, everybody who overstays the time for whcih he has been permitted to remain in this country, once he is given notice of that fact, must fully understand the basis of the notice. I contrast the provisions of section 3(5)(b), which provides that a person will be liable to deportation if the Secretary of State deems his deportation to be conducive to the public good. Once again, if the Secretary of State was to give as his reason that the deportation was conducive to the public good, I would consider it was inadequate because it does not draw to the attention of the person the offence which he has committed or the conduct which is the subject of the issue of the notice. In section 3(5)(b), therefore, it would be incumbent upon the Secretary of State, to say why the deportation is conducive to the public good. In the present case, it seems to me that this applicant knew perfectly well from the reasons given on the back of that notice why the deportation notice had been issued. Accordingly, I find on that ground that the attack upon the decision of the adjudicator is not made out. Mr Gordon advanced a second line of argument upon the adjudicator's decision, which he submits equally makes it unlawful. To understand that it is necessary to refer to certain of the other documents in the case, specifically to the explanatory statement sent by the Home Office as it is obliged to do under the regulations just cited when notice of appeal has been given. The relevant paragraph of that statement is paragraph 13, which is of some length but it is necessary to read it: "The appellant was 39 years old. She claimed to be a divorcee but had no evidence to substantiate this. She has no known connections here except for a sister and her alleged husband who is settled here. However, there was no evidence to support the claim that they were free to marry, as it was known that the sponsor had a wife and 2 children in Pakistan. The appellant has been in the United Kingdom for 2 years 7 months but has had leave to enter and remain for only 11 months of that period. All the evidence pointed to the marriage having taken place solely to enable the appellant to stay in the United Kingdom. Deportation is normally the proper course when a person has remained without authorisation and the Secretary of State could find insufficient compassionate circumstances to justify allowing the appellant to remain in the United Kingdom. Having taken all the relevant factors into account, including those set down in HC 169, paragraph 156, and mindful of the need to maintain an effective immigration control, the Secretary of State decided to deport the appellant under section 3(5)(a) of the Immigration Act 1971, and give directions for her removal to Pakistan." Once again, one can draw four points from that statement of facts relating to the reasons. Firstly, there was no evidence to support the claim that her husband was free to marry her because he had a wife and two children in Pakistan. Secondly, she had been in the United Kingdom for two years seven months and she only had eleven months leave to remain. That of course is a repetition of the reason that was actually given on the notice. Thirdly, the evidence pointed to the marriage having taken place solely to enable her to remain in the United Kingdom. Fourthly, that the Secretary of State could find insufficient compassionate circumstances to justify allowing the applicant to remain in the United Kingdom having taken all relevant matters into account. The adjudicator, when he came to consider the evidence arrived at a different conclusion from that of the Secretary of State in relation to the marriage. He said: "I would at this stage in my determination state that from the evidence in front of me there is no evidence to support the Home Office's apparent reservations as to whether or not the marriage of the Appellant and her husband is a valid one. In this regard I do note that, according to Linnells" -- that was the solicitor -- "letter of the 11 July 1986, the Home Office have indeed had sight of any English Marriage Certificate. If the Home Office had thought that either the Appellant or her husband were not able to contract a valid marriage in the United Kingdom then the Home Office has had ample time to inform the relevant authorities; there is absolutely no evidence to suggest that the Home Office have taken this course of conduct. I have therefore made my determination upon the basis that the Appellant and her husband are validly married in accordance with the laws of the United Kingdom." At the end of his decision, he said: "In short having considered all the evidence, bearing in mind that the onus of proof is upon the Appellant, and the standard of proof is upon the balance of probabilities, I do not find that this is a case in which the Secretary of State has exercised his discretion in an incorrect manner. The Secretary of State's decision to make a deportation order is one with which I agree." The approach of Mr Gordon with regard to this part of the case is, firstly, that the decision of the Secretary of State is flawed because he took into account a fact which he should not have taken into account. By way of underlining that, he of course points to the finding by the adjudicator. It therefore behoved the adjudicator in entertaining the appeal to decide one way or the other whether the decision was unlawful for that reason. It was only if he were to come to the conclusion that the decision was lawfully made, notwithstanding that feature, that he should then go on to consider the exercise of discretion which is all that he referred to at the conclusion of his decision. At no point during the decision itself has the adjudicator specifically made a finding that the Secretary of State's decision was lawful or unlawful. It is Mr Gordon's submission that he should have done. He relies on the provisions of section 19, as indeed does Mr Pannick to submit the contrary. The particular parts of it that Mr Gordon relies upon are in the first subsection and that part of the second subsection which I have read. Perhaps I might be forgiven if I repeat it. Section 19(1) states: ". . . an adjudicator on an appeal to him under this part of this Act (a) shall allow the appeal if he considers (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently." Mr Gordon points to the disjunctive nature of those two sub-clauses, thus emphasising that where appropriate on the facts the adjudicator is required first to decide whether the decision was lawful and then whether the discretion was properly exercised. His complaint here, as I have already sought to point out, was that the adjudicator went straight on to consider the discretionary matter when properly he should never have reached that stage at all; he should have decided the matter on the first sub-clause. Again, at the risk of repetition, I point out that subsection (2) in its early part specifically relates to the purposes of subsection (1)(a), "the adjudicator may review any determination of a question of fact on which the decision or action was based." That of course is what he has done here. He has reviewed the question of the marriage, though whether it was in relation to 19(1)(a)(i) or 19(1)(a)(ii) is admittedly not clear. The real answer to the case, as I venture to say, is that there are really no grounds at all for criticising the Secretary of State's decision in principle, that is to say within the terms of 19(1)(a)(i). As I pointed out when referring to the statement of reasons, there is no dispute here that this woman was given leave to enter the country for a period of 11 months. There is equally no dispute that she has stayed for many many months in excess of that time without leave. She then falls fairly and squarely within the terms of section 3(5)(a). It seems to me there was no scope here for the adjudicator to come to any other conclusion on those admitted facts. Therefore, when he went on to consider the features in relation to the marriage and, indeed, the other requirements that are set out in paragraphs 156 and 158 of HC 169, he was reviewing the discretion that the Secretary of State had applied when considering the matter himself. In those circumstances, it does not seem to me that he was required to make a specific finding that the Secretary of State had not erred in law in coming to the conclusion he did. True it was that he did not make that specific finding, but in my judgment it was unnecessary and he simply concentrated his attention on what one might call the 19(1)(a)(ii) issues which had occupied the mind of the Secretary of State when applying his own discretion to the matter. Perhaps it would be useful at this stage to make a reference to those two paragraphs in HC 169 to emphasise this. There, under 158, it says that deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authorisation. This is a case where she has remained without authorisation. The Secretary of State is then enjoined to consider all the circumstances which in his decision letter he claims he has, including those set out in paragraph 156. It specifically includes personal history, character, conduct and employment record of the person whose case is under review. In those circumstances, it does not seem to me there is any room for it to be said that the Secretary of State in considering this woman's marital circumstances was thus reviewing her conduct unlawfully when deciding whether the deportation order ought to have been made. The only other question that remained was whether his discretion was properly exercised. In one sense it could be said that it was not for the reasons that Mr Gordon advanced in relation to the Secretary of State's findings relating to the marriage. That is not a reason for attacking the adjudicator's determination because the adjudicator rejected that finding, saying specifically that there was no evidence to suggest that the marriage was not a proper one and then proceeded to review the discretionary matters on that basis. In those circumstances, equally, it seems to me that he cannot be criticised if at the end of the day he says as a matter of discretion he agrees with the Secretary of State's own conclusion. I would like in conclusion to say that, in my judgment, there is no merit in this claim in any case, although I do not wish to in any way detract from the attractive and forceful way in which the submissions have been made. In my judgment, the application must fail.

DISPOSITION:

Application dismissed

SOLICITORS:

Owen, White & Co, Shepperton, Treasury Solicitor