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

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

Queen's Bench Division

[1993] 1 Imm AR 606

Hearing Date: 15 July 1993

15 July 1993

Index Terms:

Deportation -- conducive to the public good -- serious criminal conviction -- sentencing judge stated he would not recommend deportation -- Secretary of State decided to initiate deportation proceedings against applicant -- appeal dismissed by Tribunal -- applicant's representatives requested Secretary of State to consult trial judge -- whether Secretary of State's refusal to do so unreasonable. Immigration Act 1971 s 3(5)(b): HC 251 paras 164, 165, 167, 175.

Held:

The applicant seeking leave to move for judicial review was a citizen of Brazil. He had been convicted of serious criminal offences. The sentencing judge had told him that he would not recommend him for deportation. The Secretary of State however decided to deport the applicant under section 3(5)(b) of the 1971 Act. An appeal was dismissed by the Tribunal.

The applicant's representatives, in the light of the sentencing judge's comments, asked the Secretary of State to consult with the trial judge. That he declined to do, albeit he stated he had taken the learned judge's comments into account, in relation to the changed circumstances of the applicant.

Counsel argued that although the 1971 Act did not in terms require the Secretary of State to consult the trial judge, to fail to do so would be contrary to the intention of the Act: the Secretary of State would have failed to take all relevant considerations into account, as required by the immigration rules. In the alternative it was Wednesbury unreasonable of him to fail to consult the trial judge.

Held

1. It was impossible to derive from the immigration rules any obligation on the part of the Secretary of State to consult the trial judge.

2. The terms of the learned judge's comments to the applicant did not raise any obligation on the Secretary of State to consult him.

3. It was manifest that the Secretary of State had had regard to the learned judge's comments and his approach could not be held to be Wednesbury unreasonable.

Cases referred to in the Judgment:

in re Findlay [1985] 1 AC 318: [1984] 3 All ER 801.

Figueiredo (unreported) (9782).

[19943) 1 Imm AR 606

Counsel:

A Riza QC for the applicant; R Singh for the respondent.

PANEL: Hutchinson J

Judgment One:

HUTCHINSON J: This is an application for leave to move for judicial review on behalf of Mr Figueiredo. He is subject to deportation as a result of a decision taken by the Secretary of State not as a result of a recommendation by the trial judge but under those independent powers which it is conceded on behalf of the applicant that the Secretary of State possesses, even though the judge expressly decided not to make a recommendation for deportation.

The nature of the challenge is apparent from the terms of the Form 86A, where it is said that what is challenged is "the refusal by or on behalf of the Secretary of State of 29 March to consult or obtain the views of the sentencing judge, Jupp J."

For the purposes of this application all I need say is that the applicant, a native of Brazil, had for many years lived in this country with his English wife. He had three children. In due course he appeared before Shrewsbury Crown Court, in February 1990, when on his own confession he was convicted of two counts of buggery and one count of rape involving one of his daughters. He was sentenced to five years' imprisonment, but the judge, when considering whether to make a recommendation for deportation, the formalities having been complied with, apparently said this:

"Mr Figueiredo, you are a man of 48, of hitherto good character. Contrary to what I was earlier told, I see that you have lived in this country for ten years, after your marriage to an English girl, and you have three half-English children. In those circumstances, and since you have worked well in this country for well over ten years and have roots here through your wife, it seems to me it would be quite wrong for me to recommend deportation, so you can forget about that."

He then proceeded to explain the reasons for the sentence which he ultimately imposed.

The question for me, therefore, is whether it is arguable that in the circumstances which I have briefly outlined it was incumbent on the Secretary of State, before making his decision to deport following this man's impending release, to consult the trial judge, or, since it is put in this way, the Lord Chief Justice. I am not concerned with the merits of the case in any way. There is no other challenge to the decision to deport. There are matters which could be urged on behalf of the applicant, and indeed have been urged, and I have seen the latest letter from the Secretary of State which shows that he is sensible of some of those matters, but they are not matters with which I am concerned.

The basis on which Mr Riza puts the application is really this: he concedes that nowhere in any statutory provision is there an express requirement that the Secretary of State should consult the trial judge in such circumstances as these, but he argues that there is an implied legislative requirement, basing

[19943) 1 Imm AR 606

himself on a passage in the speech of Lord Scarman in re Findlay [1985] l AC 318 at 333-334, where in a well-known passage Lord Scarman cites with approval part of the judgment of Cooke J in CREEDNZ Inc v Governor General [1981] 1 NZLR 172. I need not cite that passage but I have it well in mind.

Mr Riza's first contention is that on the basis of certain of the provisions of HC 251, there is an implied obligation on the Secretary of State which is quite clear, notwithstanding silence in the statute, that the matter is so obviously material to his decision that anything short of direct consideration would not be in accordance with the intention of the Act. It will be apparent that that is a submission not very different from an ordinary Wednesbury unreasonableness submission, but it is a distinct submission. Mr Riza bases himself on the provisions of paragraphs 164, 165, 167 and 175, all of which he has read to me and which I have in mind but will not prolong this short judgment by citing. The relevant parts are the repeated references to any representations received, all the relevant information, all the relevant circumstances, and he suggests that since the Secretary of State appears to concede (not surprisingly in my view) that a relevant circumstance was the remarks which I have cited from the learned judge's sentencing observations, so, equally, a relevant circumstance must be the views of the learned judge, if they were canvassed, today, in the light of the current situation.

His second submission is that, alternatively, this decision was Wednesbury unreasonable. That involves, of course, that no reasonable Secretary of State acquainted with all the relevant information could refrain from regarding it as incumbent upon him to consult the judge. Thirdly, he argues that the remarks of Jupp J were such as to create some kind of expectation -- he refrains from categorising it as a legitimate expectation in the ordinary sense -- on the part of appellant that he would not be deported, and that it follows from that that there is an obligation on the Secretary of State to consult the judge.

The Secretary of State had the significance of what the judge said, as it seems to me, in mind. It is apparent from his letters that both when he made the original decision and following the decision of the Immigration Appeal Tribunal on 23 February of this year, he took into account what the judge had said, but he refused to accede to the request made by the solicitors for the applicant to consult the judge in a letter of 29 March when he said this:

"The Secretary of State does not intend to consult Mr Justice Jupp (or the Lord Chief Justice) about his views in relation to the proposed deportation of your client. There is no requirement or need for him to do so. Full account was taken of the judge's reasons for not recommending deportation, but at the time of the Secretary of State's decision those factors no longer applied."

That I take to be a reference to the fact that the appellant's wife is now in the process of divorcing him and has obtained a decree nisi. Maybe also he had in mind that the children are now considerably older than they were at the time of the trial.

"The Immigration Appeal Tribunal also took full account of the judge's comments when Mr Figueiredo's appeal against deportation was dismissed on 23 February, but upheld the view that when the public interest is balanced against the compassionate circumstances of the case, deportation is the right course on the merits."

[19943) 1 Imm AR 606

It seems to me, with respect to Mr Riza's careful argument, that all his propositions are really unarguable. I cannot extract from the provisions of HC 251, on which he relies, any implied obligation to consult the judge, who had taken the trouble to make his views absolutely clear in the passage in his sentencing remarks which I have cited. The fact that in certain circumstances a statutory obligation to consult the trial judge does exist reinforces the importance to be attached to the fact that in circumstances such as these Parliament has not seen fit to impose any such obligation.

So far as Wednesbury unreasonableness is concerned, it seems to me that this case is nowhere near the sort of case in which one can say that it is remotely arguable that the Secretary of State could not reasonably have adopted the attitude that he has. As to the third point, for reasons which I endeavoured to explain in the course of Mr Riza's submission and which I shall not now repeat, it seems to me chat it is impossible to imply from the learned judge's remarks, which no doubt did comfort the applicant and induce a sense of security in him, any obligation to consult the judge before taking a contrary decision.

In my judgment this application is one which must be refused.

DISPOSITION:

Application refused

SOLICITORS:

Nelsons, London WC1; Treasury Solicitor

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