R (Malhi) v Secretary of State for the Home Department
|England & Wales
|Court of Appeal (Civil Division)
|LORD JUSTICE DILLON,LORD JUSTICE MUSTILL,LORD JUSTICE STUART-SMITH
|21 December 1990
|Judgment citation (vLex)
| EWCA Civ J1221-9
|21 December 1990
 EWCA Civ J1221-9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(Mr. Justice Popplewell)
Royal Courts of Justice
Lord Justice Dillon
Lord Justice Mustill
Lord Justice Stuart-Smith
MR. J. LAWS and MR. D. PANNICK (instructed by the Treasury Solicitor) appeared on behalf of the Appellant.
MR. I. MACDONALD, Q.C. and MR. R. DE MELLO (instructed by Messrs Maurice Andrews Webb, Birmingham) appeared on behalf of the Respondent.
The court has before it an appeal by the Home Secretary against a ruling of Popplewell J. as to the true construction and scope of subsection 5(1) of the Immigration Act 1988. The question raised is of some practical importance in that it determines the permissible grounds of appeals by overstayers, to whom the subsection applies, to adjudicators and the Immigration Appeal Tribunal against decisions to make deportation orders against them. For that reason we decided to put our judgments in writing.
The court also has before it a cross-appeal by the overstayer, Ms. Sonia Malhi, on whose application for judicial review the ruling of Popplewell J. was given.
Section 3(5) provides, as amended, that a person who is not a British Citizen 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.
Section 5(1) provides that where a person is under section 3(5) liable to deportation, then subject to the following provisions of the Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom.
Section 15 provides by subsection (1) that subject to the provisions of Part II of the Act a person may appeal to an adjudicator against a decision of the Secretary of State to make a deportation order against him by virtue of section 3(5).
Subsection (2) then provides that a deportation order shall not be made against a person by virtue of section 3(5) 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.
Section 19(1), which before the 1988 Act covered appeals by overstayers against decisions of the Secretary of State to make deportation orders by virtue of section 3(5), provides that subject to any restriction on the grounds of appeal "an adjudicator on an appeal to him under this Part of this Act—
(a) shall allow the appeal if he considers:
(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case or
(ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer that the discretion should have been exercised differently and
(b) in any other case shall dismiss the appeal."
Section 20 then provides for appeals from the adjudicator to the Immigration Appeal Tribunal.
There are restrictions on appeal where the ground of the decision to make a deportation order against a person is that his deportation is for certain particular reasons conducive to the public good; but that is not relevant to the present case.
There are separate provisions in section 16 where directions have been given for a person's removal from the United Kingdom either on the ground that he is an illegal entrant or on the ground that he has entered the United Kingdom in breach of a deportation order or under certain special powers relating to members of the crew of a ship or aircraft. In such cases there may be an appeal to an adjudicator against the directions for removal, but only on the ground that on the facts of the appellant's case there was in law no power to give the directions on the ground on which they were given.
In the Immigration Rules, in the present case HC 169 of 1983 as amended, there are provisions as to the factors to be taken into account by the Secretary of State in making a decision to deport a person and as to the balance between the public interest and any compassionate circumstances of the case.
It is against that background that the 1988 Act was enacted. Section 5(1) provides so far as material that a person to whom that subsection applies—and it is not in dispute that Ms. Malhi is such a person—shall not be entitled to appeal under section 15 of the principal Act against a decision to make a deportation order against him by virtue of section 3(5)(a) of that Act (breach of limited leave)
"except on the ground that on the facts of his case there is in law no power to make the deportation order for the reasons stated in the notice of the decision."
It seems plain that that wording is modelled on the wording of section 16 of the 1971 Act, to which I have already referred. The general legislative purpose seems to have been that the grounds on which overstayers could appeal to an adjudicator against decisions to make deportation orders against them were to be limited to a ground akin to that alone on which an illegal entrant or a person who had entered the United Kingdom in breach of a deportation order could appeal against directions for removal.
The question of construction arises in this way. It is said that the 1971 Act draws a distinction, particularly in section 15(2) which I have mentioned, between the decision to make a deportation order, against which an appeal to an adjudicator can be brought, and the making of the deportation order, against which no appeal lies save as to the destination to which the deportee is to be removed. It is therefore submitted (1) that on the true construction of section 5(1) of the 1988 Act there is in law no power to make a deportation order against an overstayer unless there has first been a valid decision by the Secretary of State to make such an order in the particular case and (2) that there will not have been a valid decision to make a deportation order if the purported decision to make a deportation order is invalid for procedural irregularity, for failure to comply with the rules of fairness and natural justice or on "Wednesbury" grounds, i.e. on the ground that the Secretary of State took into account matters which he should not have taken into account, or failed to take into account matters which he should have taken into account, or in the last resort on the ground that the decision of the Secretary of State was perverse—one which no reasonable Secretary of State, properly directing himself, could have reached. It is therefore submitted by Mr. Ian Macdonald Q.C., who argues against the Secretary of State, that all these matters which could be put forward in the High Court on an application for judicial review of the Secretary of State's decision to make a deportation order can be put before an adjudicator on an appeal against the decision to make the deportation order.
Mr. Macdonald of course recognises that section 5(1) of the 1988 Act was enacted to curtail the scope of appeals by overstayers to adjudicators, and he concedes that the section is effective to that end in this respect at least, in that, on an appeal by the overstayer against a decision which involved the exercise of a discretion by the Secretary of State, it is no longer open to the adjudicator to consider under section 19(1)(a)(ii) of the 1971 Act, whether the discretion should have been exercised differently.
For the Crown Mr. Laws concedes that the 1988 Act does not affect the power of the High Court to interfere by way of judicial review if one of the recognised grounds of procedural impropriety is made out. But he submits that judicial review is a matter for the High Court, where it is a discretionary remedy and there is a preliminary need to obtain leave to move, and not a matter for an adjudicator or the Immigration Appeal Tribunal.
In the present case the decision stated in the notice given to Ms. Malhi of the decision to make a deportation order against her was that "the Secretary of State is satisfied that you are remaining without authority." Mr. Laws submits therefore that the jurisdiction of the adjudicator was by the plain wording of section 5(1) of the 1988 Act limited to considering whether on the facts of the present case Ms. Malhi was remaining without authority, i.e. was an overstayer. He conceded however that in some other cases, though not in the present case,, the adjudicator might have a wider field of enquiry; thus it might be that, if it were claimed that the person proposed to be deported had in the particular circumstances acquired rights under E.E.C. law which gave him or her a right to remain in the United Kingdom despite the absence of a permission under the 1971 Act, the adjudicator would have to consider whether there were indeed overriding E.E.C. rights available to that person which had the effect that he or she was not remaining without authority.
Popplewell J. in his judgment of the 1st September 1989 accepted the argument put before him by Mr. De Mello, counsel for Ms. Malhi, which in his judgment he summarised as follows:
"The argument, put in its simplest terms is this. The Secretary of State's power to deport, as a matter of law, depends on a number of...
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