R v. Secretary of State for the Home Department, Ex parte Elizabeth Victoria Mensah

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte ELIZABETH VICTORIA MENSAH

CO/3424/94

22 November 1995

Queen's Bench Division: Dyson J

Deportation-overstayer-appeal against intention to deport dismissed recommendation by adjudicator-consideration of recommendation by senior executive officer in enforcement unit of the Home Office-whether consideration given to recommendation at senior level by an appropriate person. Immigration Act 1971 (as amended) s. 3(5)(a).

The applicant for leave to move for judicial review was a citizen of Ghana. She was an overstayer. The Secretary of State decided to initiate deportation proceedings against her pursuant to s. 3(5)(a) of the 1971 Act (as amended). She appealed. Her rights of appeal were restricted: her appeal was dismissed, the adjudicator inevitably concluding that the Secretary of State had the power in law to take the decision he took. The adjudicator however recommended that the applicant, in the light of compassionate circumstances, be permitted to remain in the United Kingdom.

That recommendation was considered, but not followed: the Secretary of State signed a deportation order against her. It transpired that the recommendation had been considered by a senior executive officer in the enforcement unit of the Home Office, before the Secretary of State personally signed the order.

Counsel argued that a senior executive officer was not a person of sufficient seniority to allow the Secretary of State to delegate to him the consideration of the recommendation: moreover, it was inappropriate for the matter to be delegated to an officer in the enforcement unit, the function of which was to enforce the removal from the United Kingdom of those who had breached the immigration law and rules.

Held

1. A senior executive officer was a person of sufficient seniority to have delegated to him the consideration of a recommendation by an adjudicator.

2. It would be difficult to exclude the consideration of recommendations from those charged with enforcing deportation proceedings: there was nothing improper in their considering such recommendations.

3. In any event the ultimate decision whether or not to accept the recommendation had been taken by the Secretary of State.

4. The decision was not Wednesburv unreasonable.

I Kumi for the applicant

N Garnham for the respondent

Cases referred to in the judgment:

R v Secretary of State for the Home Department ex parte 0ladehinde [1991] 1 AC 254: [1991] Imm AR 111.

Judith Sakala v Secretary of State for the Home Department [1994] Imm, AR 227.

DYS0N J: This is an application for judicial review to quash a deportation order dated 11 July 1994 and the removal directions flowing from that order dated 11 November 1994. The history of the matter is this. The applicant arrived in the United Kingdom from Ghana on 5 October 1987. She was granted leave to enter for one month as a visitor. On 16 October 1987 the applicant's stepfather applied for an extension of her stay and the applicant was granted limited leave to remain until 5 October 1988. On 12 August 1988 she married a British citizen, Mr Fowler. That marriage, however, was unhappy and after six months Mr Fowler left the applicant. On 28 September 1988 the applicant applied for further limited leave to remain on the basis of her marriage. On 25 June 1990 that application was refused. She did not appeal the refusal. She did not, however, leave the United Kingdom. On 17 October 1990 the Home Office wrote to her warning her of her liability to deportation. The letter was returned undelivered. On 14 November 1991 she was arrested and interviewed. She was served with a notice of a decision to make a deportation order pursuant to section 3(5)(a) of the Immigration Act 1971.

On 25 November 1991 she appealed against the decision to deport and applied for political asylum. On 1 February 1993 the application for asylum was refused. She applied on 17 February 1993 for indefinite leave to remain as a dependant. I should have mentioned that her parents and siblings have, at all material times, been resident in the United Kingdom. On 22 March 1993 that application was refused. On 10 November 1993 her appeal against. the decision to deport was heard by an adjudicator. On 25 November 1993 her appeal was dismissed by the adjudicator. There was no attempt to seek to challenge that decision of the adjudicator. What is relevant for present purposes, however, is that having dismissed the applicant's appeal the adjudicator went on to consider whether to make a recommendation to the Secretary of State that the case be considered in his discretion outside the rules, with a view to the applicant remaining in the United Kingdom with her family.

At page four of his determination he rehearsed those facts which he considered relevant to that question and concluded by making a recommendation in her favour to the Secretary of State. The factors which he mentioned as leading him to that conclusion included the fact that she had no family in Ghana to whom to return, other than an aged and semi-blind aunt. A grandmother of whom she was very fond, and with whom she had lived nearly all her life, had died in 1987 at the age of 95, shortly before the applicant came to the United Kingdom.

It was clear that the applicant had the relations, to whom I have already referred, in this country, who had provided her with a home virtually since her arrival. It was also clear that she suffered from some disorder, which had originally been diagnosed by a local faith healer in Accra as being "possessed by spirits". There was a report before him from the University of Birmingham which discussed, but not in great detail, her psychiatric state. The adjudicator regarded that report as of great assistance to him in deciding whether or not to make a recommendation.

The next event, so far as the applicant is concerned, was the signing of the deportation order on 11 September 1994. The deportation order was served on her on 11 November 1994. Following representations made on her behalf by her solicitors, the respondent wrote to the applicant's solicitors on 17 November 1994, a letter which has assumed some importance in the arguments before me today. It includes the following:

"Her appeal against the decision to make a deportation order was dismissed by an adjudicator on 25 November 1993 when a recommendation was made that her case be fully reconsidered. The Secretary of State has now carefully reviewed Mrs Fowler's case in the light of all relevant circumstances but is not prepared to reverse his decision to deport her.

Accordingly, as she has no basis on which to remain in the United Kingdom, the Secretary of State has signed a deportation order against Mrs Fowler which was served on her on 11 November 1994."

The matter was taken up on her behalf by the applicant's Member of Parliament. On 7 December 1994 the Minister, Mr Nicholas Baker, wrote to the applicant's MP a letter which included the following:

"Ms Fowler's case was then fully and carefully reviewed in the light of all the known relevant factors, including the adjudicator's recommendation but, in the absence of sufficiently compelling compassionate circumstances, a deportation order was signed against her on 11 July 1994, and was served on 11 November.

I have had Ms Fowler's case reviewed once again in the light of your representations but, in the absence of any new and compelling evidence, I can find no grounds to justify the exercise of discretion in her favour."

On 11 April 1995 Janice Gayle swore an affidavit on behalf of the Secretary of State, paragraph eight of which reads as follows:

"The Adjudicator's determination and his recommendation were carefully considered by the appropriate deportation casework group. However it was considered that the presence in the United Kingdom of the Applicant's mother and stepfather was not a sufficiently compelling factor to justify the exercise of discretion, particularly as the Applicant has been separated from the family unit from 1974 until her arrival in the United Kingdom in 1987. The Adjudicator's recommendation was considered by a Senior Executive Officer on behalf of the Secretary of State but it was concluded that it would not be appropriate to permit the Applicant to remain. Following that consideration, on 11 July 1994, having been fully briefed as to the background to the Applicant's case, the Secretary of State signed a deportation order against her."

The applicant's solicitors sought further particulars from the Treasury Solicitor, by letter dated 12 May 1995. They asked for the date of the review mentioned in the third paragraph of the letter to the MP of 7 December 1995, that is to say of the review which it was said had been carried out after receipt of the adjudicator's recommendation but before the signing of the deportation order. They asked also by whom the subsequent (that is to say the second) review was carried out and the date of that further review. The reply to that request was contained in a letter of 26 May 1995. The writer stated that the point regarding review of the matter was dealt with sufficiently in paragraph eight of Miss Gayle's affidavit and that there was nothing to add. They were also asked about the role of the enforcement unit in deportation proceedings. The writer said this on that topic:

"The role of the Enforcement Unit in deportation proceedings is to seek to enforce the removal from the United Kingdom of any person who has failed to comply with or contravened a condition of stay, or remained without authority. Deportation will normally be the proper course of action in such circumstances unless there are sufficiently countervailing compassionate factors which would make deportation inappropriate."

That is a sufficient statement of the relevant facts in this case.

On behalf of the applicant, Mr Kumi makes four submissions. First, there was no review of the recommendation by the adjudicator before the deportation order was signed. Secondly, the consideration of the recommendation was not made by an officer at a suitably senior level within the Home Office organisation. Thirdly, even if the review was conducted by an officer of a senior level, the officer in question, a Mr Harrington, who is a senior executive officer, was from the enforcement unit. That unit had no duty to consider the recommendations by adjudicators in these circumstances. Their only function is to secure the enforced departure from the United Kingdom of persons who have failed to comply with conditions of stay or who have remained without authority. Finally, it is said that the decision to deport was unreasonable in the Wednesburv sense.

I take those points in turn. So far as the first point is concerned, Mr Kumi submits that a proper interpretation of the letter of 17 November 1994, which I have already read, shows that the review of the case had only taken place after the deportation order had been signed. He emphasises the word "now" in the first paragraph that I read and says that as a matter of language no other interpretation is possible. It follows, and he boldly submits, that the clear evidence of Miss Gayle, at paragraph eight of her affidavit, that the signing of the order on 11 July 1994 took place after a full consideration of the case, must be rejected as being untrue. I think that Mr Garnham is right when he says that Mr Kumi misinterprets the letter of 17 November 1994. It seems to me that a fair reading of that letter shows that the sequence of events was that the recommendation came first; secondly, there was a consideration of that recommendation, followed, thirdly, by the signing of the order. In the phrase "has now carefully reviewed Mrs Fowler's case" the word "now" merely shows that it is something which has taken place in the recent past. But it does not show, by any means necessarily, that that review took place before the making of the deportation order. At best, from Mr Kumi's point of view, the point is unclear in the letter of 17 November. The uncertainty, if uncertainty there is, was plainly resolved by paragraph eight of Miss Gayle's affidavit. I accordingly reject the first submission. I should say that, in any event, even if I were satisfied that Mr Kumi's point was right, that would not be the end of the matter. As I pointed out in argument, if it is right that there has been a full reconsideration of the matter, including a consideration of the recommendation, then the fact that the decision to sign the deportation order, on 11 July 1994, was on this hypothesis wrong, because it was taken without consideration of the recommendation, would not be fatal to the position of the Secretary of State. That error, if error it was, would have been corrected by subsequent reconsideration of the matter. Accordingly, even if on the basis of the syntax of the letter of 17 November 1994 Mr Kumi's point were a good one, it would not, of itself, carry the applicant home.

I turn to the second point. Mr Kumi submits, and it is common ground, that there was a legitimate expectation that the recommendation would be considered by an officer at senior level in the respondent's department. That legitimate expectation derives from a statement made by the Home Office Minister, on 16 February 1988, to the House which was referred to in Sakala v Secretary of State for the Home Department [1994] Imm AR 227 at 229 and 230. Accordingly, it is agreed that if the decision not to accept the recommendation of the adjudicator was not taken at senior level then the decision would have frustrated the applicant's legitimate expectation that it should be taken at that level and, accordingly, would be unlawful.

The first question, therefore, is whether Mr Harrington is a senior official. He is a senior executive officer. Mr Kumi has placed before me a document which sets out the salary tables of certain senior grades of civil servant within the Home Civil Service. Seven grades, grades one to seven, are listed. They do not include senior executive officers. His argument is that any officer of a status which is not included in grades one to seven is not at a senior level.

I cannot agree. The statement made to Parliament, which is referred to in Sakala, does not define what constitutes senior level and what does not. It is not a term of art. I fail to see why someone who is described as a . senior executive officer may not reasonably be considered to be at a senior level for present purposes. But if I am wrong about that, it seems to me that the applicant fails on the facts of this case in any event because, as appears from paragraph eight of Miss Gayle's affidavit, the decision to sign the deportation order was taken by the Secretary of State himself after having been fully briefed as to the background to the applicant's case. Accordingly, on the facts of this case, the decision whether or not to accept the recommendation of the adjudicator was ultimately taken by the Secretary of State himself. Therefore there is nothing in the second submission of Mr Kumi.

As for the third submission. Mr Kumi's point is that even if Mr Harrington was an officer at a sufficiently senior level, the enforcement functions performed by the enforcement unit in which he worked at the time are potentially in conflict with the function of considering recommendations by an adjudicator not to deport. Mr Kumi referred me to the decision in 0ladehinde [1991] Imm AR 111, in which, at page 121, Lord Griffiths said this:

"The immigration service is comprised of Home Office civil servants for whom the Home Secretary is responsible and I can for myself see no reason why you should not authorise members of that service to take decisions under the Carltona principle providing they do not conflict with or embarrass them in the discharge of their specific statutory duties under the Act and that the decisions are suitable to their grading and experience."

So, submits Mr Kumi, there was no power to delegate to an official in the enforcement unit the function of reviewing a recommendation by an adjudicator, because the position of someone in the enforcement unit was in conflict with and/or would embarrass him in the discharge of his enforcement duties if he were required at the same time to consider whether or not to accept a recommendation by an adjudicator. It is clear from the material before me that Mr Harrington did indeed have delegated to him precisely that function. That is clear from the fact that Mr Harrington did have the responsibility for considering whether or not to accept the recommendation. That is also consistent with what is said in the letter from the Treasury Solicitor of 26 May 1995, where the role of the enforcement unit is discussed and where it is said that deportation will normally be the proper course of action unless there are sufficiently countervailing compassionate factors which make deportation inappropriate. It seems to me very difficult to chop up the functions of those charged with enforcement of deportation proceedings so as to exclude from them consideration of the question whether there are countervailing compassionate factors which, in a given case, would make deportation inappropriate. But again, if I am wrong about that, the answer to the third submission, as to the second, is that on the facts of this particular case the Secretary of State, who has ultimate responsibility for all aspects of immigration enforcement, took the decision himself. Accordingly, even if, contrary to my view, it was not open to the Secretary of State to authorise Mr Harrington to consider whether to accept a recommendation of the adjudicator, the fact is that it was the Home Secretary himself who made the final decision.

As for Mr Kumi's fourth point, the only way in which he seeks to challenge the decision on grounds of Wednesbury unreasonableness is to contend that the Secretary of State failed to take the recommendation into account. This is, I suspect, no more than repetition of his first point, in so far as he seeks to say that the decision to make and subsequently confirm the deportation order was made without a consideration of the recommendation. It is quite impossible, on the evidence before me, to accept that argument. Paragraph eight of Miss Gayle's affidavit, which has not been impugned save by reference to the syntax of the letter of 17 November 1994, is quite clear. So is the letter to the MP of 7 December 1994. This letter states in terms that the case was fully and carefully reviewed in the light of all the known relevant factors, including the recommendation, before the deportation order was signed.

Moreover, after the signing of the order, following further representations, the case was fully reviewed again, including the adjudicator's recommendation. Indeed, it would be almost unthinkable in a case where an adjudicator has made such a recommendation that the Secretary of State would not take it into account when deciding whether or not to order deportation.

Mr Kumi does not seek to challenge, on Wednesbury grounds, the merits of the decision itself He does not suggest that it was perverse not to accept the recommendation of the adjudicator. Accordingly the fourth argument must be rejected as well. It must follow, therefore, that this application must be dismissed.

Application dismissed

Solicitors: lqbal & Co, London, W2; Treasury Solicitor

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