EXPULSION UNDER THE 1971 IMMIGRATION ACT
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02526.x |
| Author | A. C. Evans |
| Published date | 01 July 1983 |
| Date | 01 July 1983 |
EXPULSION UNDER
THE
1971
IMMIGRATION
ACT
THE
willingness
of
United Kingdom law to allow the administration to
exercise arbitrary powers over unfavoured categories of persons, even
though there may be seriously detrimental consequences for the
individuals concerned, is well illustrated by the law relating to
expu1sion.l Under the Immigration Act
1971,
as
amended by the British
Nationality Act
1981,
only British citizens and a limited number of
citizens of independent Commonwealth countries enjoy the right of
abodee2 All other persons may only enter and reside in the United
Kingdom in
so
far
as
they are granted leave to do
SO.^
The fact that
leave is granted at the discretion
of
the administration effectively
renders the entry and residence of persons lacking the right of abode,
dependent on administrative di~cretion.~ Therefore, by way of exception
from the basic principle of the British constitution that the administra-
tion may only act against individuals
to
the extent that
a
positive basis
for doing
so
may be found in statute
or
the prerogative, any definition
of
the circumstances in which such a person may be expelled will have
the effect of restricting rather than authorising administrative action.6
In fact, however, the
1971
Act provides that the administration may
deport whenever such action is
"
deemed conducive to the public
good."6 The element of subjectivity in this power, combined with the
breadth and uncertainty of the concept
of
"
the public good
"'
means
The term
"
expulsion
"
is employed generically in this article to. denote the various
powers,
i.e.
deportation, supervised departure and removal
of
illegal entrants, to compel
persons to leave the United Kingdom which are conferred on the administration by the
Immigration Act
1971.
The term is also employed to cover any prerogative powers of this
kind, which s.
33
(5)
of the Act preserves. On the other hand, the special procedures for
removal of seamen and aircrew (Sched.
2,
paras.
12-15)
and mental patients
(s.
19
of the
Mental Health Act
1959
and
s.
82
of
the Mental Health (Scotland) Act
1960,
as amended
by s.
30
(1)
of
the
1971
Act)
are
not covered.
In
addition, the term will be employed to
denote deportation from France under
Ordonnutice 45-2658
(J.O.R.F., November
4, 1945,
p.
7225)
and removal which may now be ordered by courts convicting aliens of violation of
the immigration laws under Art.
4
ofLoi81-973
(J.O.R.F., October
30,1981,
p.
2970).
s.
3
(I),
but
s.
8
provides
for
entry of crew members
for
limited periods without leave,
and
for
exemption from control
of
diplomats and their families and of members of the
home forces, Commonwealth forces and visiting forces.
In
R.
v.
Governor
of
Brixton Prison, exp.
Lunnoy
[I9421
2
K.B.
281,285,
the view was
expressed that the grant
of
leave constituted no more than the lifting of the prohibition of
entry without leave.
Cf.
Lyon-Caen,
Droit SociulEuropden (1972),
p.
186,
as to the consequence ofthe fact
that aliens
used
to enjoy no rights ofentry
or
residence under French law.
s.
3
(5)
(b).
Para.
157
of the Immigration Rules (Statement
of
Changes in Immigration Rules,
H.C.
169,
1982-83)
indicates that this power may be employed on the basis of a criminal
conviction, where the court concerned has not recommended deportation, and s.
15
(3)
of
the Act itself makes clear that it may be employed in the interests of national security, the
relations between the United Kingdom and any other country
or
for
''
other reasons of a
political nature." The
ejusdem generis
principle of statutory interpretation would pre-
sumably mean that these reasons must be connected with national security or foreign
policy. Even
so,
the Home Office has always stressed that
"
the public good
"
is a concept
encompassing far more than just these considerations
(see,
e.g.
the remarks
of
Lord
Windlesham, H.C.Deb.,
Vol.
322,
col.
31).
2
s.
2
ofthe 1971 Act, as amended by
s.
39
of
the British Nationality Act
1981.
433
434
THE
MODERN
LAW
REVIEW
WoI.
46
that the administration enjoys virtually unlimited discretion regarding
deportation.8 Moreover, where certain conditions are met, the admini-
stration enjoys completely unlimited discretion. Jn particular, any court
convicting a person over
17
of an offence punishable with imprisonment
may recommend
him
for deportation? the administration may act
simply on the basis of such
a
recommendation, and the person concerned
may be deported’O or a
“
supervised departure
”
may be arranged for
him.’l In addition anyone who overstays his leave to enter or infringes
the conditions of this leave may be deported on these grounds a10ne,12
and anyone who enters illegally may be
“
rernoved.”l3 Finally, members
of the family of persons deported may themselves be deported.14 As
a
result, the administration may employ expulsion against the individual
concerned and his family
so
as to penalise activity which is not pro-
hibited by the ordinary criminal law, to impose a special sanction on
activity which is
so
prohibited and to give effect to
a
restrictive immigra-
tion policy. While it is difficult to imagine that these powers are in any
way inadequate for the purposes of the administration, the extreme
reluctance of thc legislature to restrict administrative action in this area
is
underlined by the fact that section
33
(5)
of
the Act carefully preserves
prerogative powers.16
The determination of the legislature to preserve these powers
is
all
the more remarkable, given that legislative powers of the kind conferred
by the
1971
Act lend themselves to review little more readily than do
prerogative powers. Apart from one decision of the Queen’s Bench in
1917,1e
which was reversed on appeal anyway,” the courts have con-
sistently rejected arguments to the effect that the
“
conducive
’’
power
has been employed for an improper purpose, even when only very
meagre evidence,I8
if
any at all,I9 has been offered to show that deporta-
tion of the person concerned is conducive to the public good. Such an
approach might be attributable simply to the fact that the heavy burden
of proof imposed on persons bringing challenges on this ground is
exaggerated by the terms of the
“
conducive
”
power.20 On the other
8
See,
e.g.
Evans,
Inimigration Law
(1976),
p.
102.
lo
s.
3
(6).
l1
s.
5 (6)
and para.
156
of
the Immigration Rules.
l2
s.
3
(5)
(a).
13
Sched.
2,
para.
9.
14
s.
5
(3)
(c).
16
s.
33
(5).
As
to
these powers, see,
e.g.
Blackstone,
Cotnmentaries,
Vol.
1,
p.
252,
and
Attorney-General for Canada
v.
Cain
[1906]
A.C.
542.
16
R.
v.
Secretary
of
State for Home Affairs, exp. Duke
of
Chateau Thierry
[1917]
1
K.B.
552.
17
R.
v.
Secretary
of
State for Home AJEairs, ex p. Duke
of
Chateau Thierry
[I9171
1
K.B.
922.
18
R.
v.
Governor
of
Brixton Prison, exp. Sarno
[1916] 2
K.B.
742,
where the applicant
was suspected of having committed a theft and running
a
brothel.
R.
v.
Governor
of
Brixton Prison, exp. Soblen
[I9631 2
Q.B.
243, 304,
where the ground seems
to
have been
that the Home Secretary never wanted the applicant here in the first place.
l9
R.
v.
Secretary
of
State for Home Affairs, ex
p.
Duke
of
Chateau Thlerry, supra,
note
17.
20
Apparently, it is necessary to show that the order is a “sham” before such a
challenge will
be
entertained,
See
R.
v.
Snperintendent
of
Chiswick Police Station, ex
p.
Sacksteder
[1918]
1
K.B.
578, 586, 589.
See also
R.
v.
Governor
of
Brixton Prison, exp.
Soblen
119631
2
Q.B.
243,
302.
s.
6.
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