R v Immigration Appeal Tribunal and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE JACKSON |
| Judgment Date | 14 March 2000 |
| Judgment citation (vLex) | [2000] EWHC J0314-5 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | NO: CO/4554/98 & CO/1048/99 |
| Date | 14 March 2000 |
[2000] EWHC J0314-5
IN THE HIGH CORT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand
London WC2
Mr Justice Jackson
NO: CO/4554/98 & CO/1048/99
MS FRANCES WEBBER (instructed by Pullig & Co London EC4V 6AP) appeared on behalf of the Applicant Fereshteh Khatib-Shahidi
MR RICK SCANNELL (instructed by Luqmani Thompson & Partners, London N22 6BB) appeared on behalf of the Applicant Robert John Anderson
MR PUSHPINDER SAINI (instructed by Treasury Solicitors) appeared on behalf of Crown Office
(SECOND Draft for Approval)
Tuesday 14 March 2000
This judgment is in seven parts:
Part 1. Introduction.
Part 2. Ex parte Anderson, the facts.
Part 3. Ex parte Khatib-Shahidi, the facts.
Part 4. The nature and effect of recommendations made by an adjudicator.
Part 5. Issue 1: Can the decision of an adjudicator not to make a recommendation be the subject of an appeal to the Immigration Appeal Tribunal?
Part 6. Issue 2: Can the decision of an adjudicator not to make a recommendation be the subject of an application for judicial review?
Part 7. Conclusion.
Part 1. Introduction.
The applicants in these two cases both entered the United Kingdom with limited leave. In due course each of them appealed to an adjudicator against a decision of the Secretary of State. Mr Anderson appealed pursuant to section 15(1) of the Immigration Act 1971 against a decision to make a deportation order against him. Miss Khatib-Shahidi appealed pursuant to section 14(1) of the Immigration Act 1971 against a refusal by the Secretary of State to extend her limited leave to remain in this country.
Both of the applicants, for different reasons, were doomed to be unsuccessful in their appeals and they acknowledged this. Both applicants, nevertheless, asked the adjudicator to make a recommendation in their favour, in the hope that the Secretary of State would act upon such recommendation.
In each case the adjudicator failed or refused to make a recommendation to the Secretary of State. He simply dismissed the substantive appeals. Both applicants applied unsuccessfully for leave to appeal to the Immigration Appeal Tribunal. Both applicants then began proceedings for judicial review.
There is an obvious link between the two cases. With the co-operation of all parties, the two applications for judicial review have been heard together.
These applications raise two important issues of immigration law. Issue one, which arises in both applications, is as follows: "Can the decision of an adjudicator not to make a recommendation be the subject of an appeal to the Immigration Appeal Tribunal?"
Issue two, which arises in ex parte Khatib-Shahidi only, is as follows: "Can the decision of an adjudicator not to make a recommendation be the subject of an application for judicial review?"
Finally, on a point of terminology, in this judgment the phrase "the Procedure Rules" means the Immigration Appeals (Procedure) Rules 1984.
Part 2. Ex parte Anderson, the facts.
Mr Robert Anderson is an Australian citizen, who was born on 8th August 1947. He is now aged 52. On 21st March 1994 the applicant was given leave to enter the United Kingdom for six months pursuant to section 3(1)(b) of the Immigration Act 1971.
The applicant did not leave at the end of the six-month period. Instead the applicant and his wife started a business in this country, namely Direct Car Finance Limited. The business appears to have been substantial and to have generated substantial profits.
On 10th September 1997 the Secretary of State decided to make a deportation order against the applicant. This decision was made pursuant to section 3(5)(a) of the Immigration Act 1971 on the grounds that the applicant had overstayed his leave. In reaching this decision, the Secretary of State had regard, or at least should have had regard, to the factors set out in paragraph 364 of the Immigration Rules (HC395). On the same day the Secretary of State gave written notice of his decision to the applicant. The applicant gave notice of appeal against that decision to an adjudicator, within the 14-day period which is allowed.
On 27th November 1997 the Secretary of State served his explanatory statement pursuant to rule 8 of the Procedure Rules. The principal contention advanced by the Secretary of State was that the applicant had been given leave to enter less than seven years previously; accordingly, the applicant was a person to whom section 5(1) of the Immigration Act 1998 applied.
Section 5(1) of the Immigration Act 1998 provides as follows:
"A person to whom this subsection applies shall not be
entitled to appeal under section 15 of the principal
Act against a decision to make a deportation order
against him —
(a) by virtue of section 3(5)(a) of that Act
(breach of limited leave); or
(b) by virtue of section 3(5)(c) of that Act as
belonging to the family of a person who is or
has been ordered to be deported by virtue of
section 3(5)(a),
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."
On the advice of solicitors who were then acting for him, the applicant did not attend the hearing of his appeal. However, those solicitors sent written representations to the adjudicator for his consideration. In their written representations the solicitors accepted that the applicant was caught by section 5 of the 1998 Act and did not have a full right of appeal against the deportation decision. However, they urged the adjudicator to make a recommendation in the applicant's favour to the Secretary of State.
The adjudicator, Mr Hanratty, heard the applicant's appeal on 16th April 1998 and promulgated his decision on 29th April 1998. The adjudicator dismissed the applicant's appeal. The crucial part of the determination reads as follows:
"By section 5(1) of the Immigration Act 1998 a person
who was last given leave to enter the U.K. less than
seven years before the date of decision to make a
deportation order for breach of limited leave is not
entitled to appeal to an adjudicator against that
decision 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 Decision,
in this case remaining beyond the period of leave.
The Appellant has not contested that he is an
overstayer. His grounds of Appeal are that the
Secretary of State has erred as to facts and law and
has exercised his discretion wrongly. No particulars
are given as to how the Respondent is alleged to have
erred in law.
In voluminous correspondence from his solicitors,
especially a letter of 3 April 1998 with an
accompanying affidavit from Mr Gulbenkian, his
solicitor, the Appellant pleads compassionate
circumstances.
The Respondent considered all the facts known to him
and thus followed the requirements of para 364, HC395,
the Immigration Rules, to which he says he directed
himself, and consequently acted in accordance with the
law. Reconsideration of those circumstances by myself
is precluded by the 1998 Act as the Appellant was last
given leave to enter less than seven years before the
date of decision.
Upon all the facts before me, the Respondent clearly,
upon a balance of probability, had the statutory power
which I have described."
By a Notice of Appeal dated 20th May 1998 the applicant applied to the Immigration Appeal Tribunal for leave to appeal.
Shortly afterwards the applicant changed solicitors. The new firm of solicitors lodged supplemental grounds of appeal on 1st July 1998. These grounds advanced three main points: One, the applicant's failure to attend and give evidence was the result of his former solicitors' advice; two, the adjudicator had failed to properly consider the request for a recommendation or to take into account matters relevant to that request; three, the success of the applicant's business and the number of staff which it employed were matters of particular importance.
The Immigration Appeal Tribunal refused leave to appeal in a written determination dated 21st September 1998. In that determination the Immigration Appeal Tribunal quoted the grounds of appeal in the applicant's notice dated 20th May 1998. The Immigration Appeal Tribunal made no reference to the supplemental grounds lodged on 1st July 1998.
In relation to the matter of a recommendation, the Immigration Appeal Tribunal said this:
"It is unfortunate that the Adjudicator has not dealt
with the request to make a recommendation. He is,
however, not bound to do so and failure to deal with
that request does not flaw the determination."
The present proceedings were commenced on 11th March 1999. The applicant seeks an order of Certiorari to quash the decision of the Immigration Appeal Tribunal dated 21st September 1998, refusing leave to appeal.
Part 3. Ex parte Khatib-Shahidi, the facts.
The applicant is an Iranian citizen. Until June 1986 she lived with her father in Iran. In June 1986 the applicant came to the United Kingdom as a visitor. Her stated purpose was to visit her mother and three sisters who had settled in this country. She was given leave to enter for one month.
The period for which the applicant was permitted to remain in the United Kingdom was extended in response to subsequent applications made pursuant to section 3(3) of the Immigration Act 1971. In due...
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