R v. Immigration Appeal Tribunal, Ex parte Benido Harrison Dukobu

R v IMMIGRATION APPEAL TRIBUNAL ex parte BENIBO HARRISON DUKOBU

Queen's Bench Division

[1990] Imm AR 390

Hearing Date: 27 March 1990

27 March 1990

Index Terms:

Deportation -- overstayer -- notice of intention to deport -- secretary of State had restricted himself in the notice to the statement that the applicant was an overstayer -- whether the notice complied with the requirement that the Secretary of State give reasons for his decision -- whether the notice only gave the ground for the decision. Immigration Act 1971 ss 18(1), 18(2): Immigration Act 1988 s 5(1): Immigration Appeals (Procedure) Rules 1984 r 8(1).

Held:

The applicant on an ex parte application for judicial review was a citizen of Nigeria who had been admitted to the United Kingdom as a visitor and subsequently became an overstayer. The Secretary of State accordingly decided to deport him. The notice of intention to deport recited the applicant's immigration history and that he was an overstayer. An appeal to an adjudicator, under the restrictive provisions of the 1988 Act was dismissed: leave to appeal to the Tribunal was refused. Before the court, relying on ex parte Mehra (but acknowledging that ex parte Hubbard was against him) counsel argued that the notice contained only the ground for the decision, not the reasons, and therefore did not fulfil the statutory requirements. Held: 1. The notice fulfilled the statutory requirements. 2. Where the Secretary of State was dealing with a simple concept, that of overstaying, he was, in a notice so worded "identifying the basis of his authority and also indicating the reason why he proposes to exercise it. By inference he is also saying that he is not prepared to exercise any discretion that he may have to act otherwise."

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Mehra [1983] Imm AR 156 R v Immigration Tribunal ex parte L Ron Hubbard [1985] Imm AR 110.

Counsel:

A Riza for the applicant; The respondent was not represented PANEL: Kennedy J

Judgment One:

KENNEDY J: This is a renewed application which was originally refused by Pill J. The decision which it is sought to be attacked is the decision of the Immigration Appeal Tribunal which on 19 October 1989 refused leave to appeal from the decision of the adjudicator reached on 9 August 1989. This applicant was born on 3 March 1936 and he is a Nigerian. On 22 February 1989 he was given notice of the Secretary of State's decision to deport him and that notice is to be found at page 23 of the bundle. It reads thus: "You were last given leave to enter the United Kingdom on 1st September 1986 for one month as a visitor and an application for further leave to remain as a visitor was refused on 27th February 1987 with an extension to stay until 27th March 1987 under the Immigration (Variation of Leave) Order 1976. The Secretary of State is satisfied that you have since remained without authority. The Secretary of State has therefore decided to make an order by virtue of section 3(5) of the Immigration Act 1971 requiring you to leave the United Kingdom and prohibiting you from entering whilst the order is in force. He proposes to give directions for your removal to Nigeria." On 1 September 1986 this applicant, it is indicated, came to the United Kingdom as a visitor. He received leave to enter for a period of one month and the history was as indicated in the notice itself. What Mr Riza submits is that when one looks at the statutory framework one has to draw a distinction between grounds and reasons. Section 18(1) of the Immigration Act 1971 enables the Secretary of State to provide reasons, and by virtue of the Immigration Appeals (Procedure) Rules 1984 it is mandatory for him to give reasons. In section 18(2) one sees a different wording used because there it states: "For the purpose of any proceedings under this Part of this Act a statement included in a notice in pursuance of regulations under this section shall be conclusive of the person by whom and of the ground on which any decision or action was taken." Mr Riza acknowledges that section 5(1) of the Immigration Act 1988 restricts rights of appeal in certain cases and in particular any case where notice is given under section 3(5) of the Immigration Act 1971. But Mr Riza submits that is really no more than a restriction of the right to appeal and it does not affect the way in which the Secretary of State by virtue of the pre-existing legislation was obliged to approach his task in deciding whether or not to give such a notice as was given in this case. What he submits has happened here is that the Secretary of State has simply recited the fact of overstaying and that is merely a ground but not a reason. What is still open to the Secretary of State, although this applicant was an overstayer, is to decide whether or not he should be deported. Mr Riza submits that if reasons were given there would have been a lot more thought given to that issue. As to the distinction between grounds and reasons, he has invited my attention to the decision of ex parte Mehra [1983] Imm AR 156, the decision of Mann J (as he then was) and the passage which appears at page 160. The learned judge did seem prepared to accept the distinction between those two concepts which was being submitted to him in that case. Mr Riza rightly also invites my attention to the case of ex parte Hubbard [1985] Imm AR 110 where at page 120, Woolf J (as he then was) was not prepared to accept that the previous case had been right in drawing that distinction. So Mr Riza was able to say, by way of submission to me that there are two conflicting decisions. It seems to me however that where one has, as here, the Secretary of State dealing with a perfectly simple concept-the question of overstaying-and where he says, as he does say in this case, that the applicant has overstayed and he is going to deport him, he has decided, as the wording reads, to make an order by virtue of section 3(5). What he is doing is identifying the basis of his authority and also indicating the reason why he proposes to exercise it. By inference he is also saying that he is not prepared to exercise any discretion that he may have to act otherwise. Accordingly in my judgment what is said in the note at page 23 of the bundle was entirely adequate. There is no arguable lack of reason. There is no merit in this application and it must therefore be dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

West Hampstead Community Law Centre.