R v. Immigration Appeal Tribunal, Ex parte Fuller

R v IMMIGRATION APPEAL TRIBUNAL ex parte FULLER

Queen's Bench Division

[1993] Imm AR 177

Hearing Date: 16 January 1992

16 January 1992

Index Terms:

Deportation -- 1988 Act -- restricted rights of appeal for overstayers -- exemption from those restrictions by 1988 Order extends only to those who had secured leave to re-enter by virtue of s 3(3)(b) of the 1971 Act -- arbitrary application of that section before the 1988 Act came into force -- whether the 1988 Order was ultra vires. Immigration Act 1971 (as amended) ss 3(3)(b), 3(5)(a): Immigration Act 1988 s 5(1): Immigration (Restricted Right of Appeal against Deportation) (Exemption) (No 2) Order 1988 (SI 1988: 1203) para 2(b).

Held:

The applicant for leave to move for judicial review was a citizen of Jamaica. She was an overstayer at the date when the Secretary of State decided to initiate deportation proceedings against her pursuant to s 3(5)(a) of the 1971 Act (as amended). She first arrived in the United Kingdom in 1982 and thereafter secured a series of extensions of leave as a student. During those periods of leave she left the United Kingdom for short periods. On her return she was granted leave to enter, but not on the basis of a s 3(3)(b) stamp in her passport. The consequence was that she was "last given leave to enter" in February 1988. Thus at the date of decision by the Secretary of State she had last been given leave to enter less than seven years before, and that leave did not come within the exemption order that gave unrestricted right of appeal to those last admitted less than seven years before on the basis of a s 3(b) stamp. She therefore had only restricted rights of appeal: the jurisdiction of the appellate authorities was limited to determining whether the Secretary of State had had the power in law to take the decision he had taken. An adjudicator and the Tribunal concluded that he had had that power. On application for judicial review it was argued that paragraph 2(b) of the 1988 Exemption Order was arbitrary in its effect and ultra vires. Held 1. It was for Parliament and not the courts to make the law. 2. In the circumstances it was not arguable that the court should intervene and quash the Order.

Cases referred to in the Judgment:

Kruse v Johnson [1898] 2 QB 91. R v Secretary of State for the Environment ex parte Nottinghamshire County Council [1986] AC 240: [1986] 1 All ER 199. R v Immigration Appeal Tribunal ex parte Manshoora Begum [1986] Imm AR 385. R v Secretary of State for the Environment ex parte Hammersmith and Fulham London Borough Council [1991] 1 AC 521: [1990] 3 All ER 589. R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696: [1991] 1 All ER 720.

Counsel:

U Cooray for the applicant; D Pannick for the respondent PANEL: Pill J

Judgment One:

PILL J: This is an application for leave to apply for judicial review. It is made by Marie Denise Fuller and she is seeking to quash determinations of an adjudicator and of the Immigration Appeal Tribunal. What is also sought -- and this is the substance of the matter because the quashing would follow any finding to this effect -- is that there should be a declaration that the Immigration (Restricted Right of Appeal against Deportation) (Exemption) Order 1988 is ultra vires. The applicant is a citizen of Jamaica who is subject to control under the Immigration Act 1971. She first arrived in the United Kingdom on 16 October 1982 with entry clearance as a student. The subsequent history of her entering and, for short periods, leaving the country is set out in the grounds upon which relief is sought. Section 5(1) of the Immigration Act 1988 limits the right of appeal against a decision to make a deportation order. The exemption order complained of is made under section 5(2) of the Act and operates to exempt from section 5(1) a person: "who would have been given leave to enter seven years or more before the date of the decision to deport, but for his having obtained a subsequent leave after an absence from the United Kingdom within the period limited for the duration of the earlier leave where, by virtue of section 3(3)(b) of the Immigration Act 1971, the limitation on and any conditions attached to the earlier leave apply to the subsequent leave." As a matter of fact, there is no dispute that the applicant does not fall within the exemption because on occasions when she returned from travelling abroad, 25 February 1984 to 26 February 1988, she was given leave to enter for two months rather than given leave to enter by virtue of section 3(3)(b). Mr Cooray's submission is that the exemption works in an arbitrary and inconsistent manner. On the principle in Kruse v Johnson, which he says is alive and well and has been cited in recent judgments, there is ground for quashing the order in question. I have requested and been given, without objection from Mr Cooray, assistance from Mr Pannick on behalf of the Secretary of State. Mr Pannick has not sought to explain the system which permitted persons such as the applicant returning on some occasions being granted leave and on other occasions being allowed to enter by virtue of section 3(3)(b). Mr Cooray has shown me two identical situations where the applicant had left the county for one day only and before her leave to be present in the United Kingdom had expired. In one case, she was granted leave to re-enter for a limited period. In another case, her passport was stamped under section 3(3)(b). There is no evidence before me as to why one practice was followed in one case and why the other practice was followed in the other case. I have had no explanation as to that. Further, it is common ground that the applicant -- and no doubt others in the same position -- could not have appreciated the significance of the difference. Indeed, no one could have appreciated it at the time. Mr Cooray therefore submits that the operation of the exemption is not only unfair, but is arbitrary in that it depends on the mere chance of the terms on which re-entry was allowed in a period before the 1988 Act was passed. For the Secretary of State, Mr Pannick draws my attention to the constitutional point involved. The circumstances in which a court can intervene to quash orders such as this are extremely limited. He has referred me to the case of R v Secretary of State for the Home Department ex parte Brind [1991] AC 696 and to the speech of Lord Bridge in the case of R v Secretary of State for the Environment ex parte Hammersmith and Fulham London Borough Council [1991] AC 521 and, in particular, to the passage at page 597. Mr Pannick's submissions are that the court must inevitably have regard to the broad discretion given to the Secretary of State under section 5(2) of the 1988 Act in granting exemptions from its provisions. He refers to the fact that the applicant is an overstayer. Mr Cooray's submission is that this complaint relates to what happened at a time when she was not an overstayer, but had a still existing leave to enter subject to permission to re-enter after travelling abroad. Mr Pannick submits that the exemption order made was within the powers of the Secretary of State. It was open to him, as a matter of policy, to decide the extent to which the rigours of section 5 of the 1988 Act should be mitigated and he was entitled to make a decision that the exemption should refer to persons who had entered within the last seven years under section 3(3)(b) with no fresh leave being granted to re-enter. The Secretary of State was entitled to decide that the line should be drawn at that point. Mr Cooray has referred me to the decision of Simon Brown J in the case of R v Immigration Appeal Tribunal, ex parte Begum [1986] Imm AR 385 and the willingness of the learned judge in that case, having been referred to the Nottingham County Council case, to say that paragraph 52 of HC 169 should be declared unlawful on the ground that it was ultra vires the enabling statutory power. The learned judge applied the principle in Kruse v Johnson. While recognising the random nature of the way in which the exemption operates, I am unable to conclude that it is arguable that this particular order should, in those circumstances, be quashed. Mr Cooray submits, in addition to the points I have made, that there is a manifest absurdity in it and it is arguable that the courts should intervene. It is an important principle that the making of law is for Parliament. Having had the statutory framework explained to me, I am unable to reach the conclusion that it is arguable that the courts should intervene and quash the order complained of. Accordingly, the application for leave must be refused.

DISPOSITION:

Application refused

SOLICITORS:

Ranga & Co, London, NW10; Treasury Solicitor