R v. Secretary of State for the Home Department, Ex parte Steve Ken Amoa

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte STEVE KEN AMOA

Queen's Bench Division

[1992] Imm AR 218

Hearing Date: 16 December 1991

16 December 1991

Index Terms:

Deportation order -- revocation -- refusal by Secretary of State to revoke order after inviting further representations from applicant after delay in implementing the order -- whether Secretary of State had considered all relevant factors -- no breach of immigration rules by applicant since deportation order signed -- whether applicant had a legitimate expectation, in the light of Home Office policy, that he would not be deported. Immigration Act 1971 (as amended) s 3(5)(a): HC 251 para 179.

Held:

The applicant for leave to move for judicial review had been granted variation of leave as a student, subject to a condition prohibiting employment. He became a mini-cab driver. The Secretary of State, noting the breach of condition, decided to initiate deportation proceedings in November 1988. An appeal was dismissed by an adjudicator. The ambit of the jurisdiction of the appellate authorities was, at that time, uncertain: accordingly the Secretary of State after signing the deportation order in December 1989 took no further action until the law had been clarified. Because of the delay, the Secretary of State subsequently invited the applicant's representatives to submit further representations. After considering those, the Secretary of State decided not to revoke the deportation order. Counsel argued that the invitation to the representatives to submit further representations demonstrated that when he originally signed the deportation order, the Secretary of State had not enquired fully into the applicant's circumstances. Since the date of the deportation order the applicant had not breached the immigration rules: he had been, it was said, a diligent student. Counsel argued that in the light of Home Office policy, (set out in the judgment) he had a legitimate expectation he would not be deported. Held 1. On the facts, the Secretary of State had not overlooked any relevant matters. The invitation to the representatives to submit further representations did not show, in the events which had happened, that he had not had full information when the original decision was taken. 2. Even in the light of the Secretary of State's recorded policy, it could not be argued that the Secretary of State's decision was Wednesbury unreasonable.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Oladehinde [1991] 1 AC 254: [1991] Imm AR 111.

Counsel:

IJ Kumi for the applicant; Miss A Foster for the respondent PANEL: Hutchison J

Judgment One:

HUTCHISON J: This is an application for leave to move for judicial review of a decision of the Home Secretary to deport the applicant. The deportation order was in fact made on 19 December 1989 and handed to the applicant at a much later date for reasons which will become clear. The reality of the situation is that this is a challenge to a decision of the Secretary of State on reconsideration of the matter not to revoke the deportation order and allow the applicant to remain. That decision was notified to the applicant on 30 August 1991. The matter arises in this way. The applicant initially obtained leave to enter in October 1986 for two months as a visitor, with a normal condition that he should not take employment. His leave was subsequently extended in 1988, as a result of an application which he made in 1986 to remain as a student until 30 October 1988. On 22 November 1988 the applicant was served with a notice of a decision to make a deportation order. Without going into details the circumstances which had given rise to that decision was the discovery that he had taken employment as a mini-cab driver. On 8 December, the notice of intention to deport was amended by the Secretary of State. The applicant lodged a notice of appeal against that decision on 22 December 1988. Amended grounds of appeal were subsequently filed, and the matter came before an adjudicator, who on 27 September 1989 dismissed the applicant's appeal. The applicant did not enter any notice of appeal to the Immigration Appeal Tribunal against that determination of the adjudicator. I pause here to mention that that fact, as it is now known to be, led Mr Kumi to abandon the first ground on which he sought leave, namely, that the deportation order made on 19 December 1989 was made when an appeal was still pending. That plainly is not the position. In fact it is clear that before the order was made the Home Office authorities waited until the time for an appeal had expired, which is the proper course for them to take. The order having been signed on 19 December, the matter proceeded no further at that stage, because the decision of the House of Lords in the Oladehinde case was awaited and it was felt appropriate to see what that decision was. There was, for one reason or another, a considerable delay before that decision was taken. The result of that was that the Home Office felt it appropriate to afford to the applicant another opportunity to make representations which they did by writing on 6 December 1990 in the following terms. They record the notice of intention to deport and so on, and go on: "In view of the time which has passed since the decision to deport you was taken, the Secretary of State has decided that before a decision is reached . . . you should be given the opportunity to make representations and to put forward any futher information that you wish to be taken into account. If you wish to take this opportunity you should write to this department within 28 days. If nothing is received within this period . . . the Secretary of State will review your case on the basis of the information already available." Mr Phillips, in an affidavit served on behalf of the respondents -- they being represented here today as a result of Brooke J's decision on a previous ex parte hearing to adjourn so they could be represented -- deals with that matter in this way: "It was however recognised by the Home Office that in the interval events might have occurred or the applicant's situation might have developed in such a way that he should be given the opportunity to make further representations. He was therefore sent a standard letter inviting him to make further representations. The meaning and purpose of this letter is I believe obvious on its face and from its context, but for the avoidance of doubt I am instructed that it should not be taken as an admission that the consideration of the applicant's case before the deportation order was in any way deficient, but rather as an extra concession in the light of the delay which had ensued." The applicant, through his solicitors, then put before the Home Secretary a certain amount of other information bearing upon his current status (as it had by now been for some considerable time) as a student; and also a letter of 21 June 1991 with his solicitors, which rehearsed, in effect, the past and current arguments as to why he should be permitted to remain. The Home Secretary having received all of that material then wrote on 13 August, indicating that after the careful consideration of the case he was not prepared to revoke the order. It is for that reason that I have said that, in effect, the application for leave is to challenge that reconsideration as much as, or more than, the original deportation order. Mr Kumi, on behalf of the applicant, having abandoned his first point seeks to urge that leave should be granted on one or other, or both of his two further points. The first is that it is clear, he submits, that the Home Secretary had not given proper consideration to the question of whether he should make the order in the first place and he failed to have regard to the provisions now to be found in rules 162 to 166 of HC 251 bearing on that question. In support of that submission Mr Kumi points to the letter of 6 December 1990 and suggests, in my view fallaciously, that the fact that the Secretary of State sought further representation indicates he had not made proper enquiries in the first place. The reason that decision is fallacious is contained in the passage I have cited from Mr Phillips' affidavit. The simple fact is that the matter had been fully investigated by the adjudicator who sets out the facts and his reasons for deciding against the applicant in his written decision. As Miss Foster has shown me, that written decision was in the possession of the Secretary of State, was attached to the file and is referred to in the entries dealing with the period between the decision and the expiry of time for appealing against it. It is, therefore, in my judgment inconceivable that the Secretary of State did not have regard to the merits when making his original order. I would further say that in any event it is perfectly clear that the Secretary of State has reconsidered that and accordingly any deficiencies in the consideration which went into the making of the original order would not in my judgment be a material ground for granting leave at this stage. The second challenge is a rather different one and is mounted on the overlapping basis of Wednesbury unreasonableness or failure to have regard to legitimate expectation based on what the Secretary of State has said, and what I presume to be the current policy on matters of this sort contained in a letter of 18 July 1989. In that letter there are set out, on behalf of the Secretary of State, the policy considerations to which regard will be held when the question of deporting students is in issue and one finds this sentence: "In our view there is now a full understanding of agreement that genuine students do not normally merit removal under the deportation powers unless their offences are serious. The type of case however that does and will continue to present particular difficulties involves those students where there are doubts about both the quantity and quality of the studies being undertaken."In paragraph four there is a reference to visitors in breach of their working conditions. At the end one finds: "I would add that unlike genuine students removal from the country cannot be regarded as a particularly harsh measure for someone whose only basis of stay is a short visit." (These are extracts from a letter dated 18 July 1989 and sent to the Joint Council for the Welfare of Immigrants. It followed discussions after the introduction by the 1988 Act of restricted rights of appeal in s 3(5)(a) deportation cases. The letter stated "we have no wish or intention to deal harshly with genuine students". It observed "genuine students can avoid any difficulty by ensuring that they renew any leave before it elapses (sic) and by obtaining Department of Employment permission if they wish to work during their free time or vacations". The letter went on to record inter alia the Home Office policy on supervised departure and stated: "The supervised departure arrangements are . . . an alternative to deportation and apply to those who are liable to deportation either following a court recommendation or under the administrative powers. The arrangements are invoked if there is no overriding reason to make a deportation order and provided that the individual makes it clear that he is willing to leave the country and forego any appeal rights. The last sentence of paragraph 178 . . . [in HC 251] . . . is intended to do no more than to continue the provision in paragraph 156 of HC 169 which enabled a prohibition on re-entry of those under the arrangements. In practice . . . formal directions are not given in individual cases, but information about individuals removed under the supervised departure provisions is available to those involved in the immigration control both in this country and abroad, so that it can be taken into account if the individual seeks to re-enter the country . . . a person may be refused entry under paragraph 78 of the Rules, if he has previously failed to observe the condition attached to his leave or, under paragraph 84 if he has been convicted of a criminal offence. If an application is refused in this way, however, the individual has a right of appeal which, if exercised, will enable him to challenge the relevance of the evidence concerning his previous misconduct."' Mr Kumi submits that there are now established two important facts, namely, first, that the applicant had not breached the conditions of his presence here since 1988; and secondly, that since that period he has been enrolled as a genuine student. Mr Kumi argues that, and in the light of these matters, it is apparent that the Home Secretary, in reaching the decision that he communicated in August 1991, failed to give effect to his policy and accordingly his decision can be challenged as being unreasonable in the Wednesbury sense. As he added by way of reply, with a little encouragement from me, it can be impugned as failing to meet the legitimate expectations of the applicant. If I thought there was any possibility of such arguments succeeding I would of course grant leave. I regret to say that I do not. Whatever sympathies one may feel with the applicant, and I am not indicating that they are appropriate on the facts of this case, what I am being asked to do, I am satisfied, is to apply my mind to the merits of the decision reached by the Secretary of State, not to the question whether his decision was lawful. I can only grant leave if it is arguable that, in the circumstances which I have rehearsed, the Secretary of State failed to have regard to his policy. Miss Foster points out that there were, at any rate prior to 1988, substantial grounds for doubting the genuineness, or the validity of the applicant's status as a student. Furthermore, he had been guilty of quite serious breaches of his condition of entry as to not obtaining employment. In all the circumstances, it seems to me, it is quite impossible to contend that there is a realistic chance of persuading the court that the Secretary of State acted in a way in which no reasonable Secretary of State could have acted when determining not to revoke this order. I accordingly refuse leave.

DISPOSITION:

Application dismissed

SOLICITORS:

Iqbal & Co, London W2; Treasury Solicitor