R v. Secretary of State for the Home Department, Ex parte Mustafa Ouakkouche

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte MUSTAFA OUAKKOUCHE

Queen's Bench Division

[1991] Imm AR 5

Hearing Date: 27 March 1990

27 March 1990

Index Terms:

Deportation -- overstayer -- decision to deport taken and deportation order signed after the coming into force of the 1988 Act -- applicant had become an overstayer before that Act was in force -- whether in those circumstances the applicant had a 'vested right of appeal' to an adjudicator on the merits of his case. Immigration Act 1971 s 3(5)(a): Immigration Act 1988 s 5(1).

Held:

Application for leave to move for judicial review of the Secretary of State's making a deportation order against the applicant in September 1989, and his subsequent refusal to revoke it in January 1990. The applicant arrived in the United Kingdom in 1986: he was given leave to enter as a visitor. He became an overstayer. Not until October 1988 after he had married a British citizen did he seek to regularise his position. An application for leave was then refused. In April 1989 the Secretary of State decided to initiate deportation proceedings against him. An appeal to an adjudicator was withdrawn. A deportation order was signed in September 1989. In seeking leave to move for judicial review counsel argued that because the applicant had become an overstayer before the 1988 Act came into force, he had a 'vested right of appeal' to an adjudicator on the merits of his case, and the restrictive rights of appeal introduced by the 1988 Act had no application to him. Held: 1. The proposition was unarguable. The applicant had no right of appeal before the coming into force of the 1988 Act, because no decision had yet been taken in his case against which he could have appealed. 2. Section 5(5) of the 1988 Act by clear implication made section 5(1) apply to all decisions given in writing after the coming into force of the section.

Cases referred to in the Judgment:

Malhi v Secretary of State for the Home Department [1990] Imm AR 275.

Counsel:

M Shrimpton for the applicant; The respondent was not represented PANEL: Kennedy J

KENNEDY J:

This is an application for judicial review of two decisions: firstly, a decision of the Secretary of State of 1 September 1989 to make a deportation order and, secondly, a decision of 9 January 1990 not to revoke that order. The applicant was born on 6 December 1961 and he came to the United Kingdom in 1986. He subsequently met and has married a British citizen on 13 October 1988 and they have a son. On 18 October 1988 the applicant being at that time to a considerable extent an overstayer, he having come here originally with leave to enter as a visitor for a short time, sought leave to remain on the basis of his marriage. He was not granted that leave and on 6 April 1989 a decision was made to deport him. He then appealed to an adjudicator on 11 April 1989 saying that grounds of appeal would follow. That was acknowledged on behalf of the Secretary of State. He was eventually given notice of the hearing date, 12 May 1989, and served with an explanatory statement prepared by the Home Office. However, on 29 June 1989 he withdrew his appeal. The reason for that seems to have been that he had been persuaded, with the assistance of his father-in-law, that it would be better to seek relief by going through other channels. An approach was made to the father-in-law's Member of Parliament. That approach was unfortunately unsuccessful. The deportation order was therefore signed on 1 September 1989 and it was a deportation order which made express reference to the provisions of section 5(1) of the Immigration Act 1988. The point which is sought to be relied on -- and there is really no doubt about this -- by Mr Shrimpton on behalf of this applicant is that the Act cannot have any relevance to this case because this man was already in the position of an overstayer before the Act came into force. The relevant section came into force on 1 August 1988. Section 5(1) provides:

'A person to whom this subsection applies shall not be entitled to appeal under section 15 of the principal Act against a decision to make a deportation order against him --(a) by virtue of section 3(5)(a) of that Act;

. . .

except on the ground that on the facts of his case there is in law no power to make the deportation order for the reasons stated in the notice of the decision.'

That section has already been the subject matter of the case which has gone to the Court of Appeal -- the case of Malhi reported in The Times on 4 January 1990 -- where it is said to be necessary for an adjudicator to look only at the provisions of that section to determine whether or not the applicant was an overstayer and that the adjudicator would not be in a position to enquire whether or not there was some impropriety or procedural irregularity. What Mr Shrimpton wishes to argue is that, although the Secretary of State took no action whatsoever in relation to his client prior to 6 April 1989 nevertheless his client already had vested in him a right of appeal from the decision taken by the Secretary of State and that in consequence the general provisions, which apply across the whole area of the statute, should not be regarded as retrospectively depriving his client of a vested right of appeal. That seems to me to be a proposition which is unarguable. In my judgment this applicant did not have a right of appeal because no decision had yet been taken in his case against which he could have appealed. The statute in section 5(5) reads thus:

'Subsection (1) above shall not affect the grounds on which a person may appeal where written notice of the decision in question was given to him before the coming into force of this section.'

The obvious implication is that where written notice of a decision in question is given, after the coming into force of the section, the section will apply. Mr Shrimpton seeks to overcome that difficulty by submitting that section 5(5) is surplus. That again seems to be a proposition which is unarguable. That being the substance of his submissions, I come regrettably to the conclusion that the application, which he makes, has no merit and it must therefore be dismissed. I am only sorry that the applicant himself should have, if he has been, been led to believe that this application had any arguable merit. I think it has none.

DISPOSITION:

Leave to move refused

SOLICITORS:

Aaronson & Co, London SW5