Claudia O'Shea v Secretary of state for the home department
| Jurisdiction | England & Wales |
| Judgment Date | 18 March 1988 |
| Date | 18 March 1988 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Slade, Staughton LJJ Sir Roualeyn Cumming-Bruce
I J A Kumi for the appellant
D Pannick for the respondent
Cases referred to in the judgments:
Rv Immigration Appeal Tribunal ex parte RuhulWLR (CA) [1987] 1 WLR 1538: [1987] Imm AR 587.
Secretary of State for the Home Department v Zalihe Huseyin (CA) [1988] Imm AR 129.
R v Secretary of State for the Home Department ex parte O'Shea (unreported, QBD, 29 October 1987).
Deportation alien overstayer who went to ground notice of intention to deport not served deportation order signed subsequent marriage to British citizen application for indefinite leave refusal of Secretary of State to revoke deportation order whether appellant entitled to indefinite leave under paragraph 124 of HC 169 whether the appellant was protected by s. 1(5) of the 1971 Act. Commonwealth Immigrants Act 1962 (as amended) ss. 2(2), 6(2): Immigration Act 1971 ss. 1(5), 5(1): Aliens Order 1953 (SI 1671 of 1953) (as amended by the Aliens (Appeals) Order 1970 (SI 151 of 1970) r. 20: HC 169 paras. 124, 126, 166, 167, 170, 171..
Appeal from Mann J. The appellant was a citizen of Columbia who overstayed her leave as a visitor and went to ground. A decision to initiate deportation proceedings was taken, but the notice was not served on her, her whereabouts being unknown. In due course a deportation order was signed. She subsequently came to the notice of the authorities after she married a British citizen and application was made for her to be given indefinite leave under paragraph 124 of HC 169. That was refused and the Secretary of State refused to revoke the deportation order. Her application for judicial review was dismissed. On appeal, it was argued that following Ruhul and Zalihe Huseyin the appellant enjoyed the protection of s. 1 (5) of the 1971 Act. It was also argued that she was entitled to indefinite leave under paragraph 124 of HC 169, which made different provision for wives from those provided for husbands in paragraph 126. Before the Court of Appeal but apparently not fully below, it was contended that the application made on her behalf after her marriage was an application for the revocation of the deportation order.
Held:
1. The appellant as an alien secured no rights under pre-1971 legislation which would assist her: in particular she secured no rights under the Commonwealth Immigrants Act 1962 such as to give her immunity from deportation under s. 1(5) of the 1971 Act. Ruhul and Huseyin distinguished.
2. Paragraph 124 had no relevance to the case, but if it had, no support could be derived from reliance on the different provisions of paragraph 126: paragraph 126 does not deal with cases where a deportation order has already been signed.
3. The case fell to be decided under paragraph 171 of HC 169. The Secretary of State's decision could not be faulted on the facts.
Sir Roualeyn Cumming-Bruce: This appeal raises a single question of construction. S.5(l) of the Immigration Act 1971 provides:
a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.
Section 1(5) of the same Act provides:
The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed.
The rules relevant to this case are the Statement of Changes in Immigration Rules 1983 (HC 169). In part XI of those rules, rules 93 to 147 deal with Variation of leave to enter or remain. Rule 124, under the sub-heading Marriage provides:
A woman admitted in a temporary capacity who marries a man settled here should on application be given indefinite leave to remain
Part XII comprises rules 148 to 171 under the heading Deportation. Rules 170 and 171 come under a sub-heading Revocation of deportation orders. Rule 171 provides:
Applications for the revocation of a deportation order will be carefully considered in the light of the grounds on which the order was made and of the case made in support of the application. The interests of the community, including the maintenance of an effective immigration control, are to be balanced against the interests of the applicant, including any circumstances of a compassionate nature. In the case of an applicant with a serious criminal record continued exclusion, for a long term of years, will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered either by a change of circumstances since the order was made or by fresh information coming to light which was not before the court that made the recommendation or the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order. Since so much depends on other relevant circumstances, it is not practicable to specify periods as appropriate in relation to particular grounds of deportation. All applications for revocation will be carefully considered when made but save in the most exceptional circumstances the Secretary...
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