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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte BASKARAN

Queen's Bench Division

[1993] Imm AR 471

Hearing Date: 12 November 1992

12 November 1992

Index Terms:

Deportation -- citizen of Sri Lanka -- conviction for serious criminal offence -- deportation recommended by court -- deportation order signed -- request by applicant that he be removed to India, not Sri Lanka -- family granted refugee status in India -- whether Secretary of State acted lawfully in proceeding by way of s 3(6) of the 1971 Act -- whether he should have acted under s 3(5)(b) of the Act, affording applicant a right of appeal to the Tribunal in which issues of asylum could have been raised. Immigration Act 1971 ss 3(5)(b), 3(6); HC 251 para 73.

Judicial review -- leave to move -- challenge to decision of Secretary of State of June 1989 -- decision not to be implemented until 1991 -- whether delay in making the application, in the circumstances, reasonable. RSC Ord 53 r 4(1).

Held:

The applicant for leave to move for judicial review was a citizen of Sri Lanka. He was arrested while a transit passenger and subsequently was given a custodial sentence as a drug smuggler. The court recommended he be deported at the end of his sentence. The Secretary of State acted on that recommendation and signed a deportation order pursuant to section 3(6) of the 1971 Act. When the applicant had been interviewed in connection with the intention to deport him he had stated that his family had fled from Sri Lanka to Madras: he wanted to be removed to India, not Sri Lanka. When served with the order he did not however lodge an appeal against destination. The order was made in July 1989: it would not however have been implemented until, at the earliest, 1991. Counsel argued that following the assurances given by the United Kingdom government to the European Court of Human Rights in K, the Secretary of State should have proceeded by way of an order under section 3(5)(b) of the 1971 Act, not by way of section 3(6). Had he done so the applicant would have had an opportunity to appeal to the Tribunal and could have raised issues relating to a claim for asylum. Held 1. The applicant was not an overstayer, nor could his position be properly seen as analogous to that of an overstayer. It followed that he fell outwith the ambit of the assurances given in K, on which case he could not rely. 2. Neither could it be argued on the facts that the applicant came within the provisions of paragraph 73 of HC 251. 3. The Secretary of State's approach was not unlawful. 4. The application in any event was long out of time. The fact that the order under challenge would not be implemented until the applicant had served his sentence was not a good reason for delay.

Cases referred to in the Judgment:

K v The United Kingdom ECHR Decisions and Reports, 52, 38.

Counsel:

A Nichol for the applicant; M Shaw for the respondent. PANEL: McCullough J

Judgment One:

MCCULLOUGH J: Before the court is a renewed application for leave to move for judicial review of the making of a deportation order on 8 June 1989 ordering the deportation of the applicant to Sri Lanka. The order recited the fact that a court had recommended that a deportation order be made in respect of him and that he did not have the right of abode here. He had arrived in this country on 10 March 1988 on a false passport, in transit, I think, to Italy. He did not seek leave to enter this country because he was intending to go on to Italy. It was suspected that he was carrying drugs. He was arrested, detained, charged and in due course he appeared at the Isleworth Crown Court in August 1988, where he pleaded guilty to the importation of 315 grams of heroin. He was sentenced to a term of five years' imprisonment and recommended for deportation. With remission being taken into account but not parole, which would in any event have been unlikely having regard to the nature of the offence, he would have had to serve three years and four months from his first being taken into custody. This would have meant that his sentence would have come to an end in July 1991. The deportation notice was served under section 3(6) of the Immigration Act 1971. Had these been the only relevant facts, there could be no basis upon which the lawfulness of the decision to deport could have been challenged. The basis of the challenge is the note of a conversation which the applicant had with a representative of the Home Office on 11 August 1988, shortly after his conviction. The note is to this effect -- there is no need to read it all -- that, in the view of the officer who made it, the applicant understood English sufficiently. He understood what had happened to him and that he would have to spend his time in prison. Certain forms were served upon him and explained to him. He was told that he would, at the end of his prison sentence, be deported. He told the officer that he and his family had gone to India by boat from Sri Lanka four years previously and that all of his family were now in Madras and had been given refugee status by India. He said that it had been his own intention to earn money from the carriage of drugs so that he could go to Canada and claim political asylum there, and he said that he did not want to be deported to Sri Lanka but to India. It is apparent from this conversation that he knew of the concept of political asylum and he knew that political asylum could be claimed. He did not claim political asylum in this country, nor did he seek leave to enter this country or to remain in this country at the expiration of his prison sentence. He accepted the fact that he would be deported. The complaint made is that it was unlawful, having regard to that conversation, for the Secretary of State to make a deportation order under section 3(6) of the Act rather than under section 3(5)(b) of the Act. Section 3(5) provides: "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; or (b) if the Secretary of State deems his deportation to be conducive to the public good . . .". Subsection (6) provides: "Without prejudice to the operation of subsection (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." The Act itself gives the Secretary of State the alternative in a case like this of proceeding under section 3(6) or under section 3(5)(b). Plainly section 3(5)(a) would not be available because the applicant here had never had any right to enter. At the end of the case of K v United Kingdom (Vol 52 European Commission of Human Rights Decisions and Reports, page 38), at page 74 there appears this (there is no need to go into the facts of the case itself): "The respondent Government have also explained a change in their policy as to the procedure which is now to be applied to persons who apply for asylum, after their leave to remain in the United Kingdom has expired. In this connection it is recalled that one of the applicant's complaints is specifically that he was deprived of any appeal on the merits of such a decision because of his status as an overstayer at the time of his asylum application. Under the new system, if an application for asylum was refused, the Secretary of State's notice of intention to deport on the ground that the applicant is an overstayer will be served under section 3(5)(a) of the 1971 Act, with the result that a would-be asylum seeker would have the right of appeal under section 15 of the 1971 Act." It should be explained that a person who is the subject of a deportation notice under section 3(5) has such a right of appeal, but a person who is the subject of a notice under section 3(6) does not. Two distinctions between the situation referred to in that undertaking or statement of intent and the situation here are immediately apparent. The applicant in this case was not an overstayer. No notice could have been served upon him in pursuance of section 3(5)(a). Second, the applicant in this case had not applied for political asylum. Accordingly, the statement of intent or undertaking does not apply in the circumstances in which this applicant finds himself. It is argued that he is the equivalent of an overstayer, but this argument, in my judgment, is sufficiently met by the submission on behalf of the Secretary of State that there is a clear distinction between someone in respect of whom a recommendation for deportation is made after conviction of overstaying and others in respect of whom a recommendation for deportation has been made. Recommendations for deportation may be made in a wide variety of circumstances. They may, as here, be made after conviction of a comparatively serious criminal offence. They may in some cases be made following a conviction for murder. The undertaking plainly could not apply and was not meant to apply to people who had been recommended for deportation following a conviction of any offence other than that of being an overstayer. It is also said that the applicant was the equivalent, or should have been treated as the equivalent, of somebody who had applied for political asylum on account of the things he had said on 11 August 1988, and in this respect attention has been drawn on his behalf to paragraph 73 of HC 169. This reads, under the heading "Asylum": "Special considerations arise where the only country to which a person could be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any case in which it appears to the immigration officer as a result of a claim or information given by the person seeking entry at a port that he might fall within the terms of this provision is to be referred to the Home Office for decision regardless of any grounds set out in any provision of these rules which may appear to justify refusal of leave to enter. Leave to enter will not be refused if removal would be contrary to the provisions of the Convention and Protocol relating to the Status of Refugees." This rule does not apply to the applicant. He was not a person seeking entry to this country. He had neither sought entry when he landed here, nor was he seeking entry or permission to be here when he was seen in prison in August 1988. He has never sought entry to this country except as a refugee and he did not apply for political asylum as a refugee until he wrote a letter which was received at the Home Office on 5 March 1990. What the paragraph does is to say that a person who does seek entry and who has given information of the kind referred to shall not have his application determined other than at the Home Office. The question of whether or not a deportation order was to be made was of course taken at Home Office level, and the question comes down to whether or not there was anything which had been said by the applicant in his interview on 11 August 1988 which could have led the Secretary of State to the view that to make an order deporting him to Sri Lanka would breach the Convention. One cannot look in isolation at the statements that his family had been given refugee status in India, that he wanted to go to Canada to claim political asylum and that he did not want to be deported to Sri Lanka but to India. They have to be seen against the background that he, as I have said, knew of the concept of political asylum. He knew it was something that could be claimed and he did not claim it. Furthermore, it is material to note that, after the deportation order had been made and served upon him and he was told of his right to appeal against the destination referred to therein, he chose not to exercise that right. A later event showed that in June 1989 he was not dissatisfied with the prospect of being returned to Sri Lanka at the end of his prison sentence. This is apparent from a letter that he wrote, received on 5 March 1990, in which he said: "When I received your appeal form in June 1989 the situation in Sri Lanka was much better than it is at the moment. My parents have informed me from Sri Lanka that it will be a suicidal move for me to return to Sri Lanka . . .". He went on to say why that view was held. He concluded: "So please consider me for granting me political asylum or to deport me to France where my brother lives." I see nothing in the material to which reference has been made which could arguably lead to the conclusion that the Secretary of State acted unlawfully when he decided to deport in pursuance of his powers under section 3(6) rather than his powers under section 3(5)(b). Nor do I see any basis on which for any other reason it could be said that the decision to make the deportation order was one reached unlawfully. Quite apart from these reasons, there is the further objection to this application that the challenge to it was not mounted until 13 July 1992, more than three years after the decision in question had been made. The rules require that applications for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, unless the court considers that there is good reason for extending the period. In my judgment, no good reason for extending the period has been shown and I share the view of the judge who considered this matter on paper and said the application was hopelessly out of time. It is no answer to say that the deportation order would not be executed until sometime after July 1991 when he had completed serving his sentence; nor is it any answer to say that he had no motive to seek the quashing of the deportation order until after he learnt in February 1992 that his application for political asylum that he had made in March 1990 had been refused. The application as it stands is simply for leave to move to quash the deportation order of 8 June 1989. In the course of his submissions on behalf of the applicant Mr Nichol canvassed the possibility of the court giving him leave to challenge the decision of 20 February 1992, when his application for political asylum was formally refused. The further possibility was canvassed of the court giving him leave to move to quash the further decision of 22 July 1992 to the effect that the earlier refusal stood. But no application to amend Form 86A was in the event made. If it had been, leave would have been refused. The relevant parts of the chronology are these: 20 February 1992 -- Formal refusal. 30 March 1992 -- Letter from the solicitors by then acting for the applicant to the Home Office, making certain complaints about events which had happened prior to the decision of 20 February 1992 and asking for certain information, largely in the form of interview notes, sending a further statement from the applicant and asking for the application for political asylum to be reconsidered. 13 July 1992 -- Application for leave to move for judicial review of the deportation order. By then no reply to the letter of 30 March 1992 had been received. That reply was, in the end, received after, I think, more than one reminder had been sent on 22 July 1992. The answer to any complaint about the decision of 20 February 1992 would be that the matter was re-considered on 22 July 1992 in the light of the whole of the material, including that which had been sent on 30 March 1992 after the original refusal. In any event, now, on 12 November 1992, one is more than eight months beyond the date of the first refusal and almost three-and-a-half months after the date of the second refusal. There is, in any event, nothing in the grounds which have been advanced to lead this court to the conclusion that the refusal of political asylum in February and the confirmation of the refusal in July 1992 was reached other than lawfully. Mr Nichol in his Form 86A, at paragraph 19, made a number of complaints about the way the applicant was treated between March 1990 and February 1992 -- more particularly, on 16 September 1991. But, in my judgment, these are all satisfactorily and sufficiently answered in the way set out in the skeleton argument prepared on behalf of the respondent and supplied to the court and to counsel for the applicant before the start of this hearing. There is no point in repeating the arguments that are there set out. The only comment which is called for is that there is a wrong date in paragraph 13 where "24 July 1991" should read "24 July 1990". For these various reasons I have reached the conclusion that there is no basis upon which on a full hearing this court might quash the deportation order of 8 June 1989, or the refusal of the application for political asylum on 20 February 1992, or the confirmation of that refusal on 22 July 1992. The application is, therefore, dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Jane Coker & Co, London N15; Treasury Solicitor

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