Jaramillo-Silva v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 24 March 1994 |
| Date | 24 March 1994 |
| Court | Immigration Appeals Tribunal |
Court of Appeal
Nourse, Beldam, Simon Brown LJJ
Miss I Rahal for the first applicant
M Soorjoo for the second applicant
Miss B Hewson for the respondent
Cases referred to in the judgments:
Attorney-General of Hong Kong v Ng Yuen ShiuELRUNK [1983] 2 AC 629: [1983] 2 All ER 346.
R v Secretary of State for the Home Department ex parte Francisco Jaramillo-Silva (unreported, QBD, 5 November 1993).
R v Secretary of State for the Home Department ex parte Ruben Jaramillo-Silva (unreported, QBD, 11 November 1993).
Deportation convictions for serious crimes recommendations by court that applicants be deported Secretary of State decided to act on recommendations applicants erroneously advised by Secretary of State that they had full rights of appeal to the Tribunal error corrected whether, nonetheless applicants had, in consequence of Secretary of State's original error a legitimate expectation they would have an opportunity to appeal on the merits. Immigration Act 1971 ss. 3(5)(b), 3(6), 5(1).
Renewed applications for leave to move for judicial review. The applicants, two brothers, were citizens of Colombia. They had been found guilty of serious drug offences: in passing long custodial sentences, the court recommended they be deported. the Secretary of State decided to act on those recommendations, pursuant to section 3(6) of the 1971 Act. In advising the applicants of his decision the Secretary of State erroneously told the applicants they would have a right of appeal. That error was subsequently corrected by the Secretary of State. Counsel argued however that the original incorrect information from the Secretary of State had raised a legitimate expectation on the part of the applicants that they would have a right of appeal.
Held
1. There was no suggestion in the correspondence with the representatives of the applicants that the applicants had understood at any stage that the Secretary of State was abandoning his powers under section 3(6) and would rely on section 3(5)(b).
2. It was neither unfair nor contrary to good administration for the Secretary of State, following his mistake, to pursue the section 3(6) route. He was not required to stand by his mistake and regard himself as inhibited from following what otherwise must inevitably have been the appropriate route, namely deportation under section 3(6).
3. It could not be said that the applicants had acted to their detriment because of the error.
Nourse LJ: I will ask Simon Brown LJ to give the first judgment.
Simon Brown LJ: Before the court are two renewed applications for leave to move for judicial review advanced on behalf of two brothers whom I shall call respectively Ruben and Francisco. They are citizens of Colombia now in their early thirties, both having lived in this country since 1977 when they came to join their parents who were already settled here.
In May 1993 the Secretary of State made deportation orders against both brothers directing their return to Colombia. Those orders were made pursuant to the provisions of sections 3(6) and 5(1) of the Immigration Act 1971. Both applicants now seek to challenge those orders and, more particularly, the Secretary of State's decision to make them pursuant to section 3(6) rather than section 3(5)(b).
Section 3(6) founds the liability to deportation upon a court's recommendation following a criminal conviction. Section 3(5)(b) founds the liability to deportation when the Secretary of State deems that conducive to the public good. The critical distinction between them for present purposes is this, that a decision to deport under section 3(6) gives rise only to a limited right of appeal against destination, not to the merits of the decision, whereas a decision to deport under section 3(5)(b) carries with it a full appeal to the Immigration Appeal Tribunal, an appeal therefore which includes the ground that the Secretary of State should have exercised his discretion differently. Both brothers seek to found their proposed challenge principally upon the doctrine of legitimate expectation. Put at this stage very shortly, they seek to hold the Secretary of State to a statement communicated to each brother in January 1992, erroneously informing him that he would have a right to appeal against any decision to deport him, erroneous, that is, given that the Secretary of State was contemplating exercising his...
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