R v Immigration Appeal Tribunal, ex parte Oladehinde ; R v Immigration Appeal Tribunal, ex parte Alexander

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS
Judgment Date15 March 1990
Judgment citation (vLex)[1990] EWCA Civ J0315-4
Docket Number90/0247
CourtCourt of Appeal (Civil Division)
Date15 March 1990
The Queen
and
Secretary of State for the Home Department
Appellant
Ex Parte Shamusideen Aranji Oladehinde
Respondent
Ex Parte Julius Cornell Alexander
Respondent

[1990] EWCA Civ J0315-4

Before:

The Master of the Rolls

(Lord Donaldson)

Lord Justice Stocker

Lord Justice Mann

90/0247

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

MR. J. G. M. LAWS and MR. D. P. PANNICK (instructed by The Treasury Solicitor) appeared for the Appellant.

MR. I. A. MACDONALD Q.C. and MR. R. P. SCANNELL (instructed by Messrs. Lewis Silkin) appeared for the Respondent (Oladehinde).

MR. N. J. G. BLAKE (instructed by the Joint Council for the Welfare of Immigrants) appeared for the Respondent (Alexander).

THE MASTER OF THE ROLLS
1

This is the judgment of the court.

2

On 12 February 1990 Woolf L.J. and Pill J., sitting as a Divisional Court of the Queen's Bench Division, judicially reviewed and ordered the quashing of decisions to serve notices of intention to deport the applicants. The Secretary of State now appeals. The principle issue in the appeal is whether, as the Divisional Court held, the Secretary of State was not entitled to authorise two immigration inspectors (Mr. Barrell in the case of Mr. Oladehinde and Mr. McCormack in the case of Mr. Alexander) to act on the Secretary of State's behalf in reaching a decision whether or not to deport. It would more accurately be described as a "provisional" decision to deport, since the case has to be, and is, reconsidered at ministerial level before any deportation order is signed.

3

This issue is of very considerable constitutional importance, involving as it does the application of what is known as the "Carltona principle" ( Carltona Limited v. the Commissioners of Works and Others (1943) 2 All E.R. 540) and, on the view taken by the Divisional Court, the " Padfield approach" to statutory construction ( Padfield v. the Minister of Agriculture, Fisheries and Food (1968) A.C. 997). A resolution of it is urgently required because there are a large number of other cases in which decisions to deport have been taken by immigration inspectors purporting to act on behalf of the Secretary of State and those concerned need and are entitled to know where they stand at the earliest possible moment. These two appeals have therefore been expedited.

4

The Secretary of State's decision to authorise particular immigration officers at not less than the level of inspector to exercise his powers to issue a notice of intention to deport, to issue a restriction order, to detain and to authorise supervised departure was announced in the House of Commons in a written answer by the Minister of State (Mr. Renton) on 20th December 1988, the authorisation having taken effect from 1st August 1988. We are told that there are at Trent 52 inspectors, but that only14 of them have been given authority to authorise the issue of notices of intention to deport, they being officers of considerable seniority and the equivalent of senior executive officers in other branches and departments. This is the grade which has always taken such decisions albeit that prior to August 1988 none were immigration officers. Mr. Barrell, who reached the crucial decision in Mr. Oladehinde's case, had 24 years' experience and Mr. McCormack, who was concerned with Mr. Alexander, had 22 years' experience.

5

The Divisional Court's decision

6

Pill J., who enjoyed the inestimable advantage of giving a supporting judgment and so was free of the necessity for stating the facts and examining the rival arguments in detail, summarised the position as he saw it in the following words:-

"The effect of the Carltona principle ( Carltona v. Commissioner of Works and Others [1943] 2 All E.R. 540) is that, where powers are given to a Secretary of State in a statute, an implication normally arises that they can be exercised under his authority by responsible officials of his department. The rationale is set out by Lord Greene, M.R., in Carltona at page 563A to C.

That implication will not always arise. It will not arise for example when the statute expressly provides that a Secretary of State shall take a decision personally or if it expressly defines the category or categories of official who may take the decision on his behalf. It will also not arise where it is clear from the wording and context of the statute that Parliament's intention in a particular case was that it would not arise or would not arise with respect to a particular category of officials in the department.

Immigration officers are given specific powers by the Immigration Act 1971. The Secretary of State is given other and separate powers. The dichotomy is expressed for example in section 4 (1) of the Act which deals with "administration and control", and provides, in so far as is material:

'The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3 (3) (a) (whether as regards duration or conditions), shall be exercised by the Secretary of State…"

Woolf L.J. in his judgment has considered the Act and regulations in detail and I agree that Parliament did not intend the relevant powers given to the Secretary of State with respect to deportation to be exercised on his behalf by members of the Immigration Service."

7

Whether or not that is right as a matter of law is what this appeal is really all about.

8

Woolf L.J., in a judgment of outstanding clarity, held that giving immigration inspectors authority to exercise this power on behalf of the Secretary of State conflicted with the policy and objects of the 1971 Act and so was unlawful on Padfield grounds. Mr. Laws submits that the Padfield decision relates to the exercise of a statutory discretion and is not relevant to the present problem, which concerns the constitutionality of a devolution of authority.

9

It is certainly true that the decision in Padfield was reached in a different context, but it would be a mistake to approach the judicial review jurisdiction as if it consisted of a series of entirely separate boxes into which judges dipped as occasion demanded. It is rather a rich tapestry of many strands, which cross, re-cross and blend to produce justice. Thus it would be unlawful, unconstitutional, irrational, Wednesbury unreasonable or plain wrong—the label really does not matter—to use the constitutional power to devolve the Secretary of State's decision making authority to a point or level which ran counter to the legislature's intentions in a particular field of government. The six considerations set out in the judgment of Woolf L.J. are thus highly relevant and to these we now turn. We hope that in summarising them we do not detract from their force.

10

1. The status of the applicants and the consequences of deportation

11

Neither of the applicants was refused entry to this country or entered illegally. Both are being dealt with under section 3 (5) (a) of the 1971 Act, Mr. Oladehinde on the footing that he was in breach of a condition restricting employment and Mr. Alexander on the footing that he was an overstayer. As such, they are entitled to greater consideration than an illegal entrant or one who has been refused entry. The consequences of being deported are very serious in that deportation may be regarded as a stigma which could affect their ability to travel to other countries. This fact is recognised by the Home Office to the extent that the final decision to deport, signified by the signature of a deportation order, is normally undertaken by the Secretary of State personally and, if this is not possible, is undertaken by a minister. A corresponding degree of importance should attach to the preliminary step of forming an intention to deport.

12

2. The structure of the 1971 Act.

13

Woolf L.J. examined the provisions of the Act in detail including, in particular, section 4 (1) to which Pill J. referred and concluded, rightly, that there was a clear distinction of function between immigration officers, who were concerned with entry into the United Kingdom, and the Secretary of State who was concerned with the right to remain here. The applicants are asserting a right to remain, not to enter. We would only add that the dichotomy is not without exceptions—see section 24 (2) (power of arrest for breach of condition or overstaying); schedule 2 paragraph 13 (2) B (similar situations in relation to crew); schedule 2 paragraph 29 (1) and (2) (bail pending appeals) and schedule 3 paragraphs 5 (1) and 7 (powers of court spending deportation).

14

3. The application of the Carltona principle

15

It may be convenient at this point to cite the passage from the judgment of Lord Greene M.R. which enshrines and explains the Carltona principle. It is at page 563 of the report and reads as follows:-

"In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to...

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