Hoosha Hanif v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 09 April 1985 |
| Date | 09 April 1985 |
| Court | Immigration Appeals Tribunal |
Immigration Appeal Tribunal
Professor D C Jackson (Vice-President), G W Farmer Esq (Vice-President), Dr S Torrance
K Drabu of the United Kingdom Immigrants Advisory Service for the appellant.
P Curwen for the respondent.
Cases referred to in the determination:
Ramjaun (unreported) (3052).
Kivrak (unreported) (3088).
Ekrem Kandemir v The Secretary of State for the Home Department [1984] Imm AR 137.
Selliah Balasingham Ranganathan v The Secretary of State for the Home Department [1984] Imm AR 247.
Deportation overstayer whether knowledge of overstaying is necessary for overstayer to become liable for deportation whether ignorance of overstaying is a compassionate circumstance to be taken into account in an appeal against deportation whether factors not known to the Secretary of State can be taken into account by the appellate authorities whether a review of a decision by the Secretary of State constitutes a second decision where the first decision is maintained Immigration Act 1971 s 3(5)(a): HC 169 paragraphs 156, 158.
The appellant was admitted to the United Kingdom as a student. An application for an extension of leave as a student was refused and not appealed. A month after that refusal the appellant went through a civil ceremony of marriage with a British citizen. That was a bigamous marriage so far as the appellant's partner was concerned. At the date of the ceremony the appellant was not aware of that. The appellant's partner was subsequently convicted of bigamy and the appellant formed an association with another person. That association was not known to the Secretary of State at the date of his original decision to initiate deportation proceedings and the adjudicator refused to take it into account. It was known to the Secretary of State when he subsequently reviewed that decision and maintained it.
Held: 1) That the liability to deportation set out in s 3(5)(a) of the Immigration Act 1971 is not restricted to those overstayers who knowingly overstay.
2) Ignorance by a party that they have overstayed is a compassionate circumstance to be taken into consideration under HC 169 paragraph 156.
3) On the settled authorities the adjudicator was correct not to take into consideration factors not known to the Secretary of State when he decided to initiate deportation proceedings.
4) When the Secretary of State reviews a decision he had already taken and maintains that decision, he does not make a second decision within the meaning of the immigration rules.
Determination
The appellant, a citizen of Guyana, appeals against the decision of an adjudicator (IMS Donnell Esq) dismissing her appeal against the decision taken on 27 March 1984 to deport her by virtue of the Immigration Act 1971, section 3(5)(a).
Scope of section 3(5)(a)
The provision reads:
A person who is not patrial shall be liable to deportation from the United Kingdom:
(a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave.
Mr Drabu argued that the power to deport under this provision required knowledge of remaining beyond the time limited by the leave. The pattern of the Act was clear, said Mr Drabu, providing for the knowledge of a person subject to immigration control of the conditions applicable to that person. Notice was required to be given of terms of entry and of conditions on any variation of the leave granted on entry.
However, in our view, the requirements of notice do not lead to any conclusion that knowledge of overstay is required for deportation under section 3(5)(a). The statutory provision is as clearly worded as are the provisions requiring notice. The basis of immigration control is admission through the granting of leave and the concomitant of that is that lack of leave means that the admission may be terminated on the basis that the authority for being in the country does not exist. The blunt operation of the principle is qualified by the mandatory direction that in exercising the power specific factors (including compassionate circumstances) must be taken into account (see HC 169 paragraphs 158 and 156). It is at this stage and in this context that lack of knowledge will operate, and it is at that stage that we shall consider the question of lack of knowledge raised in this case.
The background facts
The appellant was first admitted to the United Kingdom on 4 September 1976 as a student with employment prohibited unless with the consent of the Secretary of State. She was given leave to enter for 12 months. On 25 July 1977 she applied for further leave to continue studies but the explanatory statement records that after prolonged enquiries the application was refused on 11 January 1979. Notice of refusal was served on the appellant on 23 January 1979. The appellant did not appeal.
On 23 February 1979 the appellant went through a marriage ceremony with a Mr Mohammad Hanif a British citizen. She made no application to remain by virtue of this marriage. However, when the marriage became known to the Secretary of State through enquiries in relation to the appellant's overstay, no action was taken by the...
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