R v Immigration Appeal Tribunal, ex parte Bakhtaur Singh
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Brightman,Lord Mackay of Clashfern,Lord Goff of Chieveley |
| Judgment Date | 26 June 1986 |
| Judgment citation (vLex) | [1986] UKHL J0626-1 |
| Date | 26 June 1986 |
| Court | House of Lords |
[1986] UKHL J0626-1
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Brightman
Lord Mackay of Clashfern
Lord Goff of Chieveley
House of Lords
My Lords,
The appellant entered the United Kingdom with the benefit of a work permit as part of an Indian folk music group on 26 September 1979. He was granted leave to enter under the Immigration Act 1971 ("the Act") for one week but the period of leave was later extended to 30 November 1979. Before this leave expired he applied for a variation to permit him to remain for six months as a priest and music teacher. This application was in due course refused. An attempt to exercise the right of appeal against the refusal under section 14 of the Act was made, but was some days out of time and was therefore ineffective. The appellant nevertheless remained in this country. On 1 February 1983 the Secretary of State decided to make a deportation order against him under section 3(5)( a). The appellant appealed under section 15. On 3 May 1983 the adjudicator dismissed the appeal. The Immigration Appeal Tribunal refused leave to appeal. The appellant thereupon applied for judicial review. The application was heard by Hodgson J., who made an order quashing the refusal of leave by the Immigration Appeal Tribunal and remitting the matter to that tribunal for reconsideration in accordance with his judgment. On appeal from that judgment the Court of Appeal (Stephenson, Fox and Purchas L.JJ.) reversed the decision of Hodgson J. and dismissed the appellant's application for judicial review. The appellant now appeals by leave of your Lordships' House.
The question at issue ultimately turns upon the construction of the applicable rules made under section 3(2) of the Act of 1971. At the material time, which it is common ground was the date of the decision to make a deportation order, the relevant rules were contained in the "Statement of Changes in Immigration Rules" H.C. 66 of 1982 which came into force on 1 January 1983. Before turning to those rules it is appropriate to refer to the statutory framework in which they operate.
A person who is not a British citizen is liable to deportation under section 3(5) of the Act of 1971:
"( 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; or ( b) if the Secretary of State deems his deportation to be conducive to the public good; or ( c) if another person to whose family he belongs is or has been ordered to be deported."
In addition such a person, if over seventeen, may be recommended under section 3(6) for deportation by a competent court if convicted of an offence punishable with imprisonment.
Of the four categories of persons liable to deportation, special rules apply to those who fall within section 3(5)( b) and I need not consider them further. The remaining three categories I shall refer to for convenience as "overstayers," "family members" and "convicted offenders." Family members liable to deportation as such are, in the case of a man, his wife and children under eighteen, in the case of a woman, her children (including illegitimate children) under eighteen; section 5(4).
Overstayers and family members notified of a decision to make a deportation order against them have a right of appeal to the appellate authorities under Part II of the Act of 1971, to an adjudicator in the first place under section 15 and, if appropriate, to the Immigration Appeal Tribunal under section 20. Convicted offenders, having been entitled to whatever rights of appeal they enjoyed in the criminal courts, have no further right of appeal under the Act, so that it falls to the Secretary of State alone, subject only to the possibility of judicial review of his exercise of discretion, to decide in any particular case, whether to implement the recommendation of a court that a person be deported.
Subject to provisions not presently relevant section 19(1)( a) requires an adjudicator to allow an 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; …"
But section 19(2) provides that
"… for the purposes of subsection (1)(a)(ii) no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so."
The "immigration rules" referred to in those provisions are those laid before Parliament and having effect in accordance with the procedure provided by section 3(2) of the Act of 1971 "… as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter … ." Section 1(4) requires that the rules "shall include provision" for certain matters, but these do not throw any light on the questions raised by this appeal. The Act nowhere in terms provides that the Secretary of State is not himself to follow and apply the rules which he himself has promulgated. The clear implication, however, of the provisions of section 19(2) which I have quoted above is that he has a discretion to relax those rules or to apply them less restrictively than their terms would require in favour of a particular immigrant, but that a refusal to exercise such a discretion is not to be appealable.
The rules in H.C. 66 relating to deportation are set out in Part XII, paragraphs 148 to 171. Each paragraph or group of paragraphs has a subheading. The first two subheadings are " Ambit of power to deport" (paragraphs 148 and 149) and " Right of appeal" (paragraphs 150 to 152). These merely explain in simple terms the effect of the relevant statutory provisions. Paragraph 153, under the subheading " Refugees" is not presently relevant. Paragraphs 154 to 158 are crucial to the arguments which arise on the appeal and I must set them out, with their respective subheadings, omitting only the latter part of paragraph 158, which is not relevant. They read as follows:
"Consideration of the merits
154. In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects.
155. Most of the cases in which deportation may be the appropriate course fall into two main categories. There are, first, those cases which come to notice following a conviction for a criminal offence and in which it is fitting that, because of his conduct, a person should no longer be allowed to remain here; and, second, those cases in which the person is here, or is remaining here, in defiance of the immigration control.
Deportation following a conviction
156. In considering whether to give effect to a recommendation for deportation made by a court on conviction the Secretary of State will take into account every relevant factor known to him, including: age; length of residence in the United Kingdom; strength of connection with the United Kingdom; personal history, including character, conduct and employment record; domestic circumstances; the nature of the offence of which the person was convicted; previous criminal record; compassionate circumstances; any representations received on the person's behalf.
In certain circumstances, particularly in the case of young or first offenders, supervised departure, with a prohibition on re-entry, may be arranged as an alternative to the deportation recommended by the court provided that the person is willing to leave the country.
157. Where the court has not recommended deportation there may nevertheless be grounds, in the light of all the relevant information and subject to the right of appeal, for deportation, for curtailment of stay or a refusal to extend stay followed, after departure, by a prohibition on re-entry.
Deportation for breach of conditions or unauthorised stay
158. Deportation will normally be the proper course where the 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 156, before a decision is reached."
Of the remaining subheadings of Part XII the only ones that are relevant are "Deportation of members of families"; (paragraphs 160 to 164) and "Revocation of deportation orders"; (paragraphs 170 and 171). The opening sentences of paragraph 171 read as follows:
"171. Applications for the revocation of a deportation order will be carefully considered in the light of the grounds on which the order was made and of the case made in support of the application. The interests of the community, including the maintenance of an effective immigration control, are to be balanced against the interests of the applicant, including any circumstances of a compassionate nature."
The appellant's attack on the decision of the adjudicator is directed at certain paragraphs in which he considered the value of the services rendered by the appellant to the Sikh community. The relevant passages read as follows:
"What I...
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