JN (Cameroon) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Rix,Sir Paul Kennedy |
| Judgment Date | 12 March 2009 |
| Neutral Citation | [2009] EWCA Civ 307 |
| Docket Number | Case No: C5/2008/2251 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 2009 |
[2009] EWCA Civ 307
Before: Lord Justice Rix
Lord Justice Richards
and
Sir Paul Kennedy
Case No: C5/2008/2251
[AIT No: IA/10946/2007]
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Mr D Bazini (instructed by the Refugee Legal Centre) appeared on behalf of the Appellant.
Ms S Leek (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
(As Approved By Court)
Lord Justice Richards:
The appellant is a national of Cameroon. He entered the United Kingdom illegally in August 2000 with false documentation and resided here under an assumed identity. He lived initially in London but moved to Leeds in 2002. Later that year he met a woman, Ms Ngongo, a Congolese national, who was subsequently granted refugee status. A relationship developed between the two of them and they had two children together. She also had an older child by another man. In November 2006 they both travelled to Cameroon in connection with the death of the appellant's father. While there he told her for the first time of his true identity and immigration status. She forgave him his deception and they entered into a legally binding marriage whilst still in Cameroon. On their return to the United Kingdom at the end of November 2006 he was apprehended for use of a false passport. He was charged with possession of a false instrument contrary to section 25(1) of the Identity Cards Act 2006. He pleaded guilty and was sentenced to 15 months' imprisonment with a recommendation that he be deported.
On 2 July 2007 the Secretary of State served on him notice of a decision to make a deportation order. On 26 September 2007 the Secretary of State notified him of the refusal of an asylum claim that he had made following his arrest. The appellant did not appeal the asylum claim but did appeal the decision to make a deportation order. That appeal was dismissed by the AIT (Immigration Judge Hemingway and Ms PL Ravenscroft) in a decision dated 25 October 2007. Reconsideration was ordered, but in a decision dated 16 July 2008 the Tribunal (Deputy President Ockelton and Immigration Judge Kelly) found that there was no material error of law in the original decision. An application for permission to appeal against the decision on reconsideration was adjourned by Sedley LJ to today's hearing on notice to the Secretary of State
The grounds of appeal raise two issues. The first is whether the Tribunal erred in law in finding that it had jurisdiction to entertain the appeal. That issue remains live and is indeed the only live issue. The second ground alleged an error of law by the Tribunal in relation to the application of Article 8 of the European Convention on Human Rights. Mr Bazini has made clear this morning, however, that in the light of observations made by Sedley LJ he is not pursuing that ground. In my opinion, he is eminently sensible to have adopted that course.
I therefore turn to the jurisdictional issue, which relates to the notice of decision to make a deportation order. The appellant's case is that, because the notice did not specify the country to which the appellant would be deported, the notice and the decision to make the order were invalid and in consequence the Tribunal lacked jurisdiction to entertain the appeal. This was the sole point raised on the reconsideration and it is submitted that the Tribunal erred in law in rejecting it.
The legislative framework within which the issue arises is as follows. The decision was made under section 5(1) of the Immigration Act 1971 (“the 1971 Act”) which empowers the Secretary of State in defined circumstances to make a deportation order against a person, “that is to say, an order requiring him to leave and prohibiting him from entering the United Kingdom.”
Any decision to make a deportation order under section 5(1) is an “immigration decision” within section 82(2)(j) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). By section 82(1), where an immigration decision is made in respect of a person he may appeal to the Tribunal. By section 84 the grounds on which an appeal may be brought include “(a) that the decision was not in accordance with immigration rules; … (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 … as being incompatible with the appellant's Convention rights; … (e) that the decision is otherwise not in accordance with the law;”
Section 105(1) of the 2002 Act empowers the Secretary of State to make regulations requiring a person to be given written notice where an immigration decision is taken in respect of him. Subsection (2) provides that the regulations may in particular provide that a notice must give information about the right of appeal. Subsection (3) provides that the regulations may make provision about service.
The regulations made under section 105 are The Immigration (Notices) Regulations 2003 (“the 2003 Regulations”). Those regulations have been amended from time to time. Regulation 4 provides that the decision-maker must give written notice to a person of any immigration decision taken in respect of him which is appealable. Regulation 5 makes provision as to the contents of a notice given under Regulation 4. Paragraph 1 of regulation 5 provided at the material time as follows:
“A notice given under regulation 4(1) is to —
(a) include or be accompanied by a statement of the reasons for the decision to which it relates; and
(b) if it relates to an immigration decision specified in section 82(2)(a), (g), (h), (ha), (i), ( ia), (j) or (3A) of the 2002 Act:
(i) shall state the country or territory to which it is proposed to remove the person; or
(ii) may, if it appears to the decision-maker that the person to whom a notice is to be given may be removable to more than one country or territory, state any such countries or territories.”
Other paragraphs of regulation 5 relate to matters such as the provision of information about the right of appeal.
The jurisdictional issue revolves around the requirement in regulation 5(1) to state the country or territory to which it is proposed to remove the person.
The facts material to the issue are these. By letter dated 23 February 2007 the Secretary of State notified the appellant that she was considering whether to act on the court's recommendation to deport him. The letter stated:
“If you feel there are any reasons why you should not be deported to Cameroon [emphasis added] on completion of your sentence you should submit these in writing … within five days of this notification.”
The actual notice of decision to make a deportation order dated 2 July 2007 stated that it was “To: Jules Ngah Cameroon 25 May 1968”. It recited the appellant's conviction and the court's recommendation for deportation and stated that the Secretary of State had decided to make a deportation order under section 5(1) of the 1971 Act. It then said:
“This Order requires you to leave the United Kingdom and prohibits you from re-entering while the order is in force.”
It did not specify the country to which it was proposed to remove the appellant.
Cameroon was, however, referred to in a letter of 2 October 2007 to the appellant giving reasons for the deportation decision. Moreover the issues addressed in the asylum claim, both in the supporting evidence from the appellant and his wife and in the Secretary of State's decision of 25 September 2007 refusing the claim, all related to return to Cameroon.
The appellant's notice of appeal to the Tribunal made no mention of the failure to state the proposed country of return in the notice of the deportation decision. That issue was, however, raised in argument before the original panel, which at paragraph 57 of its decision accepted that the notice did not refer to a country of removal but noted:
“Of course, there is no dispute, in fact, as to where the Respondent intends to deport the Appellant to. It is accepted by all parties that the Appellant is a Cameroonian national and, in the letter of 2 nd October 2007 explaining the reasons why a decision has been taken to make a deportation order, reference is made to Cameroon.”
The panel went on to reject what it described as the technical arguments advanced on the applicant's behalf in relation to the omission of the country of destination from the notice.
On the reconsideration the Tribunal dealt with the issue on the basis that the purpose of the 2003 Regulations is to give assistance to the person in respect of whom a decision has been made in mounting an appeal, but that a person may waive the requirements of the Regulations by appealing against a notice in the form in which he receives it. The notice in the present case was a notice of an immigration decision within section 82. By submitting a notice of appeal through his representatives in time, the appellant had waived any defect in the notice. The Tribunal further observed that there was no conceivable case for indicating that the appellant had been prejudiced or misled by any defect in the notice. There was no suggestion that any destination for him other than Cameroon would be appropriate and he had made his case throughout on the basis that his removal would be to Cameroon.
In R v SSHD ex parte Jeyeanthan [2000] 1 WLR 354 the Court of Appeal adopted a flexible approach in the specific context of immigration towards the...
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