Khan v Secretary of State for the Home Department, Deen v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 30 June 1987 |
| Date | 30 June 1987 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Fox, Neill, Bingham LJJ
A Riza for the applicants
D Pannick for the respondent
Cases referred to in the judgments:
Boal Quay Wharfingers Ltd v Kings Lynn Conservancy BoardWLRUNK [1971] 1 WLR 1563: [1971] 3 All ER 597.
Saleh v Secretary of State for the Home Department [1975] Imm AR 154.
Ancharaz v Immigration Officer, Heathrow [1976] Imm AR 49.
Gowa v Attorney General (unreported, CA, 20 December 1984).
The Leonidas DWLRUNK [1985] 1 WLR 925: [1985] 2 All ER 796.
CSSU v Minister for the Civil ServiceELRUNK [1985] AC 374; [1984] 3 All ER 935.
R v Secretary of State for the Home Department ex parte Deen (unreported, QBD, 31 October 1985).
R v Diggines ex parte Rahmani and ors CA [1985] QB 1109; [1985] 1 All ER 1073.
R v Diggines ex parte Rahmani and ors HL [1986] AC 475; [1986] Imm AR 195.
R v Secretary of State for the Home Department ex parte Fauzia Khan [1987] Imm AR 173.
Appeals — Procedure rules providing for written notice of withdrawal — whether those provisions by implication exclude counsel when properly instructed, from withdrawing an appeal orally at a hearing before the appellate authorities — whether where an appeal is so withdrawn by counsel a deportation order signed thereafter is valid. Immigration Act 1971 ss. 3(5)(a), 15(2), 33(4); HC 394 para. 143: Immigration Appeals (Procedure) Rules 1972 rr. 6(5)(a), 26(2), 34(1), 34(5).
Estoppel — whether in the events which happened the Secretary of State was estopped from initiating deportation proceedings four years after he became aware that the applicant was an overstayer — whether alleged promises made by the police to the applicant could give rise to estoppel against the Secretary of State.
Legitimate expectation — whether in the circumstances set out above a legitimate expectation arose that the applicant would not be deported.
Judicial review — pleadings — the need to define the issues.
The applicants were a brother and sister who were brought to the United Kingdom as teenagers and granted leave to enter as visitors. Subsequently their passports were fraudulently altered to suggest they had unlimited leave to remain. The applicants assisted the prosecution that later followed those events, in consequence of which their own immigration status remained unsettled for some years. In the fullness of time the Secretary of State decided to initiate deportation proceedings against them as overstayers.
They appealed to an adjudicator. When the hearing opened counsel for Mrs Khan withdrew her appeal. The adjudicator recorded that withdrawal and proceeded to hear the appeal of the brother, which he dismissed.
Deportation orders were then signed against both applicants. Judicial review was sought in each case: the applications were dismissed and appeals made to the Court of Appeal.
In the case of Mrs Khan the first application for judicial review was based on compassionate circumstances. A year later another application was made on the grounds that she had never instructed her solicitors to withdraw her appeal before the Adjudicator. That application was also dismissed, both on the merits and because of delay.
Before the Court of Appeal it was argued that the deportation order was invalid because her appeal in law had neither been properly withdrawn in accordance with the procedure rules, nor had it been determined by the adjudicator. The events which had happened had led to a breach of natural justice, she never having had an opportunity of having her case considered by the appellate authorities. It was also contended that after taking no action against the applicant for four years as an overstayer (while required as a witness in criminal proceedings) the Secretary of State was estopped from initiating proceedings against her. She had by then a legitimate expectation that she would be allowed to remain in the United Kingdom.
In the case of Mr Deen it was asserted that the police investigating the passport offences committed by third parties had given him certain assurances which likewise gave rise to a legitimate expectation on his part and likewise estopped the Secretary of State from initiating deportation proceedings.
Held:
1. The procedure rules contain provisions for the withdrawal of appeals by written notice before the commencement of hearings before the appellate authorities (r. 6(5) of 1972) but there was nothing in the rules to support the proposition that counsel duly instructed could not validly withdraw an appeal on behalf of his client at a hearing.
2. On the facts the Court refused to accept that counsel acted contrary to instructions, Rahmani distinguished.
3. It followed that the appeal of Mrs Khan was properly withdrawn before the adjudicator: the deportation order was signed while no appeal was outstanding and the order was valid.
4. No estoppel arose to prevent the Secretary of State initiating deportation proceedings after a significant lapse of time.
5. On the facts, the applicant Mrs Khan could have no legitimate expectation as that was defined in CSSU v Minister for the Civil Service.
6. The application, considered on its merits, failed: it also failed, as the learned judge at first instance had held, because of undue delay in bringing the application.
7. In the case of Mr. Deen, no legitimate expectation arose in consequence of the alleged promises by the police which in any event, if made, would in all probability not bind the Secretary of State.
8. The case as argued before the court was substantially different from what was earlier pleaded. Some of the pleadings were so wide as to encompass almost any submissions that could be made and were not thus of much assistance in defining the issues. The Court would not always grant the parties the latitude it had given them in this case.
Fox LJ: I will ask Bingham LJ to give the first judgment in these cases.
Bingham LJ: There are before the court appeals by a brother, Mr Deen, and his sister, now Mrs Khan. In each case the appeal is against the dismissal of an application for judicial review. Mr Deen's application was dismissed by Farquarson J on 31 October 1985, and Mrs Khan's by Taylor J on 5 December 1986.
The appeals concern the operation of the immigration legislation. I shall make reference to certain of the statutory provisions in the case, although there is no need to refer in detail to other than a few provisions, there being little controversy about the effect of most of them.
Persons who are not British citizens having a right of abode require leave to enter and remain in the United Kingdom as provided by sections 1(2) and 3 of the Immigration Act 1971. Section 3(1) of the Act provides, in paragraphs (b) and (c), that persons may be given leave to enter this country for a limited period and on conditions. If such persons overstay the period of entry permitted to them, they are liable to deportation under section 3(5)(a) of the Act. Section 5(1) confers power on the Secretary of State to make a deportation order. His power under section 5(1) is not, however, unfettered. Before it can be exercised, the individual affected by it must be given the opportunity to appeal, in the first instance to an adjudicator, and thereafter to the Immigration Appeal Tribunal, against the Secretary of State's decision to make a deportation order.
It is relevant in the present case to refer to section 15(2), which provides:
‘A deportation order shall not be made against a person by virtue of section 3(5) above so long as an appeal may be brought against the decision to make it nor, if such an appeal is duly brought, so long as the appeal is pending…’
I omit the remainder of that sub-section.
That provision is supplemented by Section 33(4) of the Act, which provides:
‘For purposes of this Act an appeal under Part II’ (which includes Section 15(2)) ‘…shall, subject to any express provision to the contrary, be treated as pending during the period beginning when notice of appeal is duly given and ending when the appeal is finally determined or withdrawn; and in the case of an appeal to an adjudicator, the appeal shall not be treated as finally determined so long as a further appeal can be brought by virtue of section 20 nor, if such an appeal is duly brought, until it is determined or withdrawn’.
The Secretary of State has power under the Act to make rules governing the control of immigration, and for present purposes it is necessary to refer only to rule 143 contained in House of Commons Paper No. 394. That reads:
‘Deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authorisation. Full account is to be taken of all the relevant circumstances known to the Secretary of State, including those listed in paragraph 141 before a decision is reached.’
Although much of the factual history, and almost all the legal argument in these appeals is common to the case both of Mr Deen and Mrs Khan, it is I think convenient to deal with the cases separately, and I start with that of Mrs Khan.
She was born on 22 November 1963, and is therefore now 23 years old. On 10 July 1977 she was admitted to the United Kingdom for one month on condition she took no paid employment. She was then aged 13. In about October 1977 it appears that she gave her passport to a person in order that it should be stamped with an endorsement purporting to revoke the limitation on the period of her stay. In saying that, I should emphasise that there is no suggestion of any criminality made against her—understandably in view of her age. She did not leave at the end of one month and in May 1978 it came to the notice of the police that her passport, and a number of...
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