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

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

Queen's Bench Division

[1994] Imm AR 395

Hearing Date: 14 April 1994

14 April 1994

Index Terms:

Deportation -- overstayer -- deportation order signed while applicant's where-abouts unknown -- application made for indefinite leave after 12 years as overstayer -- whether Secretary of State's refusal to revoke deportation order Wednesbury unreasonable -- whether Secretary of State's policy gave rise to a legitimate expectation that after 14 years in the United Kingdom an overstayer would be granted leave. Immigration Act 1971 (as amended) s 3(5)(a); HC 251 para 180.

Held:

The applicant for leave to move for judicial review was a long-term overstayer who had gone to ground after a short period of limited leave. While his whereabouts were unknown, the Secretary of State had signed a deportation order. After some 12 years as an overstayer his solicitors applied for a grant of indefinite leave on the basis of his long stay in the United Kingdom. The Secretary of State refused to revoke the deportation order. Counsel argued that the decision of the Secretary of State was unreasonable, in the light of his publicly announced policy. By the time the case was heard, the applicant had been in the United Kingdom for over 14 years. Held 1. There was nothing in the Secretary of State's publicly announced policy that required that a period of 14 years unlawful residence in the United Kingdom should lead automatically to a grant of leave to remain. 2. There was nothing to show that a legitimate expectation had arisen that leave would be granted. 3. The Secretary of State had not been shown to have exercised his discretion unreasonably.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Samuel Ogunbodede [1993] Imm AR 28. Parjat Singh v Secretary of State for the Home Department [1993] Imm AR 112.

Counsel:

I Kumi for the applicant; N Garnham for the respondent PANEL: Judge J

Judgment One:

JUDGE J: Abukari Musah seeks leave to move for judicial review of a decision of the Secretary of State for the Home Department that he should be removed from the United Kingdom following confirmation on 22 November 1993 of a deportation order signed as long ago as 12 September 1983. The applicant first came to England in September 1979. He was granted leave to remain until 9 February 1980 as a visitor. His stay was extended until 7 March 1980. He then overstayed. Nothing more was heard of him until February 1992 when solicitors applied on his behalf for indefinite leave to remain in the United Kingdom on the basis of his length of residence. Although his whereabouts had been unknown to the relevant authorities, in 1983 notice of intention to deport him had been sent to an address in Sussex Gardens in London at which he was known to have been living and at which it is common ground that he had at some stage been living. The applicant denies that he ever received that notice. A point was taken about service. Nevertheless, having considered the matter, in light of the regulations relating to notice and the decision of the House of Lords in Singh v Secretary of State [1993] Imm AR 112 and the statement of principle in the opinion of Lord Jauncey at page 117, there is in my judgment no realistic point that can successfully be advanced on the applicant's behalf in relation to non-service of that notice of intention. On 12 September 1983 the deportation order was signed. As indicated, the applicant has remained here ever since, a total of 14 years or more in all. Of those 14 years no more than five months represented lawful residence. Throughout the period, it appears that the applicant has worked and led a normal, industrious life. He has formed a relationship with a woman who has indefinite leave to remain. The only mark against him is that he has used a false name. It is this period of residence which provides the real basis for the present application. The application made on his behalf by his solicitors in February 1992 was refused in June 1992. The applicant was served with a deportation order on 8 June 1993. His solicitors took up his case with the Immigration Department. There are two important letters from the Department. The first is dated 18 October 1993. After acknowledging receipt of letters from the solicitors, the writer set out the circumstances in which the applicant had entered the United Kingdom in 1979 and the extension of his stay until March of 1980. She then set out the history of events in April and September of 1983 and the fact that the applicant had remained untraced until February 1992 when solicitors applied on his behalf. The letter concluded: "The Secretary of State has carefully reviewed Mr Musah's case. He has noted the contents of your two letters and has taken account of representations made on Mr Musah's behalf by Markanday & Co. He is not, however, persuaded that there are compelling grounds for revoking the deportation order against Mr Musah and allowing him to remain." There was a further letter dated 22 November 1993. The writer acknowledged: ". . . that Mr Musah has been in the United Kingdom for 14 years, but point out that he has remained with leave for just five months of this time, and a deportation order was signed against your client over ten years ago. Long residence in the United Kingdom is one of a number of factors which the Secretary of State may take into consideration in deciding whether it is right to continue with arrangements to deport a person who has remained without leave. Such consideration does not, as you suggest, form part of the Immigration Rules. Your client has remained in the United Kingdom in breach of a Deportation Order and the Secretary of State is not prepared to revoke that Order so as to exercise his discretion in Mr Musah's favour." There is no express reference in the letter to the policy relating to long residence in the United Kingdom, but long residence is plainly the issue to which the letters are addressed and which are dealt with by the writers. The applicant had no right to remain in the United Kingdom. The Secretary of State had power to permit him to do so. There have been a number of declared policy statements about the circumstances in which that power would be exercised, and the policies have varied from time to time. In the House of Commons the policy was explained in 1985 and 1987, in the latter case in answer to a question which presupposed that no deportation order had been made. The position was subsequently set out in the following form, referred to in the decision of this court in ex parte Ogunbodede, [1993] Imm AR 28. "I have recently reviewed how we should approach cases of long residence bearing this principle in mind [that principle being lengthy, continuous residence which may give rise to the establishment of close ties in this country] and also the fact that lengthy residence is but one of the factors to be taken into account when a case is reviewed. I have decided that, first and foremost, we must continue to consider each case on its merits. When doing so, however, our approach should be that where a person has ten years or more continuous lawful residence, or 14 years or more continuous residence (of any legality) indefinite leave to remain should normally be granted in the absence of strong countervailing factors. In all other cases of long residence, the strength of the ties with the United Kingdom, the length of the total continuous period in the United Kingdom and the proportion of it which is lawful will be the primary determining factors when deciding to grant or withhold leave to remain." On 29 March 1993 there was a written answer in the House of Commons by Mr Charles Wardle, the minister responsible at the Home Office for these matters: "Under the long residence concession, a person who has ten years or more continuous lawful residence in the United Kingdom, or 14 years continuous residence regardless of legality, may qualify for the grant of indefinite leave to remain depending on the circumstances of their particular case." In effect, therefore, there is nothing in the current policy statement which requires that a period of 14 years unlawful residence in the United Kingdom should lead automatically to the grant of leave to remain, nor is there any evidence to suggest that there is any legitimate expectation that such residence should result in the grant of leave. The plain fact here is that the deportation order was made in 1983. It was not and could not be enforced while the whereabouts of the applicant remained unknown. That is obviously one relevant feature to be considered as is the fact that the period of lawful residence throughout the 14 years or more was no more than five months. The letters of 18 October and 22 November from which substantial quotations have already been given set out the factors which were taken into account by the Secretary of State in the particular individual circumstances of Mr Musah's case. There is nothing to suggest that the decision, in effect, not to set aside the original deportation order of 1983 was flawed or susceptible to judicial review on normal principles. In those circumstances I shall refuse the application for leave to move.

DISPOSITION:

Application refused

SOLICITORS:

BD Laddie & Co, London SE17; Treasury Solicitor

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