R v Immigration Appeal Tribunal, ex parte Hassanin
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE CROOM-JOHNSON,THE MASTER OF THE ROLLS,LORD JUSTICE CROOM JOHNSON |
| Judgment Date | 16 October 1986 |
| Neutral Citation | [1986] EWCA Civ J1016-6,[1986] EWCA Civ J1016-4 |
| Judgment citation (vLex) | [1986] EWCA Civ J1016-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 86/0898,86/0896,86/0897 |
| Date | 16 October 1986 |
[1986] EWCA Civ J1016-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(CIVIL DIVISION)
(On appeal from Mr. Justice Kennedy Queen's Bench Division)
Royal Courts of Justice
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Dillon
and
Lord Justice Croom-Johnson
86/0896
MISS MYA MYA AYE (instructed by Mr. Richard J. Stevens, Walthamstow) appeared on behalf of the Appellant(Applicant).
MR. JOHN LAWS (instructed by the Treasury Solicitor) appeared on behalf the Respondent(Respondent).
Mr. Mohamed Farooq is a Burmese subject. As I explained in my judgment, just handed down, on the parallel appeal of Mr. El Nashouky El Hassanin, Mr. Farooq entered the United Kingdom on 9th January 1976 as a short term visitor with permission to stay for one month only. He said he wanted to stay for three weeks only and knew no-one in the United Kingdom. Within hours events happened which led the Immigration Officer to believe that Mr. Farooq had lied in order to secure his admission to the United Kingdom. However it was not then possible to find him and he was not found until he was denounced to the immigration authorities in July 1983. The Secretary of State then made the decision to deport Mr. Farooq, and signed a detention order without any previous interview for fear that if Mr. Farooq learned that he had been traced he would abscond from his then current address and place of work, and again be lost elsewhere in the United Kingdom. For my part I see no objection to the Secretary of State deciding to deport an overstayer, without any interview of the person concerned to discover his current circumstances, if the Secretary of State fears that that person will abscond if approached.
The decision to deport Mr. Farooq and the detention order were made on 28th September 1983 and he was thereupon taken into custody. While still in custody (although he was subsequently released on bail) he gave, as he was entitled to, on 26th October 1983 notice of appeal to an Adjudicator against the decision to make the deportion order. In the grounds of appeal it was stated that Mr. Farooq did not want to return to Burma as his life and liberty would be at risk. His claim is, in essence, that he is a refugee entitled to the protection of the 1951 Convention and 1967 Protocol relating to the Status of Refugees; he says that he is a Burmese Muslim of Indian extraction, that before he left Burma in November 1974 he was politically active in the Burma Muslim Organisation and that consequently he has a well-founded fear of being persecuted on religious and political grounds if he is returned to Burma.
I mention in passing that arrangements were made for Mr. Farooq to be interviewed by Home Office officials on 27th February 1984 in relation to his claim that his life or liberty would be at risk if he returned to Burma. According to the Explanatory Statement put before the Adjudicator, the Secretary of State carefully reconsidered his decision to deport Mr. Farooq in the light of the grounds of appeal and the representations at that interview, but was not prepared to reverse his decision.
When Mr. Farooq's appeal came before the Adjudicator in October 1984, the Adjudicator held, on an objection taken on behalf of the Secretary of State, that he, the Adjudicator, had no jurisdiction to consider Mr. Farooq's claim to be a refugee entitled to asylum, because the Secretary of State was not, and could not have been, aware of this claim when on 28th September 1983 he made the decision to deport Mr. Farooq. The Adjudicator followed, in so holding, a decision of the Appeal Tribunal in the parallel case of Kandemir. The appeal to the Adjudicator was accordingly dismissed.
Mr. Farooq applied for leave to appeal to the Appeal Tribunal, but that application was dismissed by the Vice-President of the Appeal Tribunal on 13th November 1984 on the ground that the case was indistinguishable from Kandemir, by virtue of which decision the appellate authorities were restricted in the circumstances they can consider in deportation proceedings to those known to the Secretary of State at the date of decision.
Mr. Farooq accordingly applied to a Divisional Court for leave to move for judicial review of the decision of the Appeal Tribunal which had refused him leave to appeal, but his application was refused by Mr. Justice Kennedy on 16th October 1985. In his judgment Mr. Justice Kennedy followed the decision of Mr. Justice Mann in the parallel case of Ex parte El Nashouky El Hassanin; Mr. Justice Mann had taken the same view of the law as had been taken by the Appeal Tribunal in Kandemir and by the Adjudicator in the present case, viz that in an appeal in deportation proceedings the appellate authorities can only consider the circumstances which were known to the Secretary of State at the time when he made his decision to deport the appellant.
We have now held, in our judgments handed down in the case of Ex parte El Nashouky El Hassanin that that view of the law was wrong. It follows that Mr. Farooq was entitled to have his claim to be a refugee considered by the Adjudicator on the basis of the facts as they existed at the time of the Secretary of State's decision to deport him, even though those facts were not known to the Secretary of State at that time. The appellate authorities had jurisdiction to consider on that basis the substance of his claim to be a refugee, but have never done so.
This appeal must therefore be allowed, the decision of the Appeal Tribunal refusing leave to appeal against the decision of the Adjudicator must be quashed, and the case must be remitted to the Appeal Tribunal.
I agree with the judgment of Lord Justice Dillon.
I, too, agree with the orders proposed by Lord Justice Dillon. The appeal is allowed, with costs.
Order: Appeal allowed with costs; order of certiorari.
[1986] EWCA Civ J1016-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(CIVIL DIVISION)
(On appeal from Order of Mr. Justice Mann Queen's Bench Division)
Royal Courts of Justice
The Master Of The Rolls
(Sir John Donaldson)
Lord Justice Dillon
and
Lord Justice Croom-Johnson
86/0897
MR. LOUIS BLOM-COOPER Q.C. and MR. NICHOLAS BLAKE (instructed by Mr. M. Kellas, Brent Community Law Centre, London) appeared on behalf of the Appellant (Applicant).
MR. JOHN LAWS (instructed by the Treasury Solicitor) appeared on behalf of the Respondent(Respondent).
This appeal was heard together with the appeals of Ekrem Kandemir and Mohamed Farooq, since they all raise the same point of law, namely, whether in a deportation case, an appellant can, in an appeal to an adjudicator or to the Immigration Appeal Tribunal against a decision of the Secretary of State to make a deportation order against him, rely on facts or circumstances which existed at the time of the Secretary of State's decision, but were not then known to the Secretary of State.
The present appellant is an Egyptian citizen. On 21st August 1979 he was granted leave to enter the United Kingdom for one month as a visitor. That leave was subsequently extended to 31st December 1979, but he remained here without authorisation beyond that date. In the course of 1980 he applied to remain as a student, but that application was rejected. Then, on 10th February 1981, the United Kingdom Immigrants Advisory Service wrote to the Home Office on his behalf claiming political asylum. The appellant was interviewed by representatives of the Home Office on 1st December 1981 in connection with his application for political asylum. That application was refused by the Secretary of State in March 1982; against such a decision there is no appeal. Then, as the appellant had stillnot left the United Kingdom, the Secretary of State decided, on 2nd February 1983, to deport him under section 3(5) of the Immigration Act 1971 as an overstayer.
The appellant promptly appealed, as he was entitled to, against that decision to deport him, but his appeal was dismissed by an adjudicator in December 1983. He appealed, with leave, to the Appeal Tribunal, but his appeal was dismissed in June 1984. He then, with leave granted in November 1984 by Mr. Justice Lloyd (as he then was), applied for judicial review of the decision of the Appeal Tribunal. That application was refused by Mr. Justice Mann on 16th October 1985, and it is against that decision of Mr. Justice Mann that the present appeal is brought.
The main case for the appellant before the adjudicator and before the Appeal Tribunal was that he was a political refugee who had a well-founded fear of the consequences if he were to be deported to Egypt. That, however, was rejected on the facts both by the adjudicator and by the Appeal Tribunal. Their conclusion on this point was not challenged in the Divisional Court (and could not be) or in this court.
In his notice of appeal to the adjudicator, dated 1st February 1983, however, the appellant had put his grounds of appeal more widely and had referred also to the condition of his wife. The question of law for the Divisional Court and for this court was whether he was entitled to put evidence of compassionate family circumstances before the Appeal Tribunal.
All that the Secretary of State knew about the appellant's personal...
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