R v Immigration Appeal Tribunal and Another ex parte Alexander (A.P.) ; R v Immigration Appeal Tribunal and Another ex parte Oladehinde (A.P.) (Conjoined Appeals)

JurisdictionEngland & Wales
JudgeLord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Templeman,Lord Griffiths,Lord Ackner
Judgment Date18 October 1990
Judgment citation (vLex)[1990] UKHL J1018-1
Date18 October 1990
CourtHouse of Lords

[1990] UKHL J1018-1

House of Lords

Lord Keith of Kinkel

Lord Brandon of Oakbrook

Lord Templeman

Lord Griffiths

Lord Ackner

Regina
and
Immigration Appeal Tribunal and Another
(Respondents)
Ex Parte Alexander (A.P.)
(Appellant)
Regina
and
Immigration Appeal Tribunal and Another
(Respondents)
Ex Parte Oladehinde (A.P.)
(Appellant)
(Conjoined Appeals)
Lord Keith of Kinkel

My Lords,

1

I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend Lord Griffitns. I agree with it, and for the reasons he gives would dismiss these appeals.

Lord Brandon of Oakbrook

My Lords,

2

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Griffiths. I agree with it and for the reasons which he gives I would dismiss these appeals.

Lord Templeman

My Lords,

3

By section 4 of the Immigration Act 1971 an immigration officer could decide whether to grant or refuse leave to enter the United Kingdom. By rule 78 of the immigration rules the Home Secretary proposed and Parliament approved that the refusal of leave to enter should require the authority of a chief immigration officer or of an immigration inspector: Statement of Changes in Immigration Rules (1983) (H.C. 169). Thus an immigration officer can only report with a recommendation that leave to enter be refused. That report is considered by a chief immigration officer or by an immigration inspector who then authorises and directs leave to be granted or refused. Leave to enter would normally be refused if an immigration officer considered and a chief immigration officer or an immigration inspector agreed that the immigrant intended to overstay or intended to breach a condition against employment.

4

By section 5 of the Act of 1971 the Secretary of State decides whether to deport. Amongst the grounds for deportation are overstaying or breach of a condition not to take employment. By rules 156 and 158 (now (1989) (H.C. 251)) where an immigrant is an overstayer or has breached a condition of staying, deportation is normally the proper course subject to full account being taken of all relevant circumstances including compassionate circumstances.

5

Where an immigrant is suspected of overstaying or being in breach of a condition, the immigrant is interviewed by an immigration officer who makes a report. That report will set out the ascertained information relevant to the accusation of overstaying or breach of condition and any circumstances including compassionate circumstances discovered by the immigration officer or urged by the immigrant and relevant to a decision with regard to deportation. The report of the immigration officer relating to deportation was originally considered by a member of the deportation department of the Home Office who alone could authorise the service of a notice of intention to deport. The report of the immigration officer relating to deportation is now considered by one of the specified number of immigration inspectors, members of the Home Office, who alone can sanction service of notice of intention to deport. Formerly and now, the immigrant may appeal against the intention to deport but since the Immigration Act 1988 the adjudicator and the Immigration Appeal Tribunal have no power to allow an appeal against an intention to deport an immigrant who is proved to be liable to be deported and to have been guilty of overstaying or breach of condition. If an appeal is not made or if an appeal is unsuccessful, the report of the immigration officer and the intention to deport are reviewed by the deportation department at the Home Office (taking into account any fresh representations or development) and with the advice of the department and with the advice of the Minister of State, the Secretary of State decides whether to sign a deportation order and thus to exercise the power conferred on him by the Act of 1971.

6

No one contends that it is illegal or improper for deportation procedures to be initiated by an interview and report by an immigration officer. It is contended that it is illegal or improper for an immigration inspector approved by the Secretary of State and apprised of that report to direct the service of notice of intention to deport. There is no express or implied statutory prohibition on the employment of immigration inspectors selected by the Secretary of State with due regard to their seniority and experience to authorise the service of a notice of intention to deport. As to impropriety, if an immigration inspector may decide to refuse leave to enter I see no reason why he should not be allowed to authorise the service of notice of intention to deport. The intention to deport will in any event be reviewed by the deportation department, by the Minister of State and by the Secretary of State. Some attempt was made to equate the members of the Immigration Service (including immigration inspectors) with the role of policemen and to equate members of the deportation department with the role of judges. In my opinion the analogy is false. All members of the Home Office who are concerned with entry or deportation or both, are bound to use their best endeavours to ensure that persons lawfully seeking to enter are treated fairly, that persons lawfully entitled to remain are permitted to remain and that persons who have acted unlawfully are nevertheless permitted to enter or allowed to remain if in all the circumstances their unlawful conduct ought fairly to be excused.

7

The position of immigrants who have overstayed or are in breach of condition is said to have have been weakened because a decision to deport now rests with the Secretary of State alone, whereas prior to the Immigration Act 1988 an adjudicator or the Immigration Appeal Tribunal might on appeal against a notice of intention to deport rule against deportation. But this possibility does not effect the present question.

8

In full agreement with the speech to be delivered by my noble and learned friend, Lord Griffiths, I would dismiss these appeals.

Lord Griffiths

My Lords,

9

The appellant Shamusideen Aranji Oladehinde is a citizen of Nigeria. On 17 September 1983 the appellant was granted leave to enter the United Kingdom for 12 months as a student with a condition restricting him from taking employment. This leave was extended, subject to the condition restricting employment, until the 31 May 1988. On 31 May 1988 the appellant applied for further leave to remain in the United Kingdom as a student. On 25 August 1988, before that application for further leave had been determined, the appellant was arrested. He was interviewed by an immigration officer. After some initial prevarication the appellant admitted during the course of the interview that he had worked under an assumed name for two security firms in breach of the condition restricting his taking employment attached to his leave to enter the United Kingdom as a student. The immigration officer reported the result of the interview on the telephone to an immigration inspector who, acting on behalf of the Secretary of State, decided that the appellant should be deported and authorised the immigration officer to serve a notice of intention to deport upon the appellant on the ground that he had taken employment in breach of the condition attached to his leave to enter. The notice was served forthwith by the immigration officer on 25 August.

10

The appellant appealed against the decision to deport him and his appeal was allowed by an adjudicator on 8 November 1988 on the ground that the Secretary of State had not acted fairly in deciding to deport the appellant. On 12 May 1989 the Immigration Appeal Tribunal allowed an appeal by the Secretary of State.

11

The appellant Julius Cornell Alexander is a citizen of St Vincent. On 7 October 1984 he was given leave to enter the United Kingdom as a visitor for two months. His leave to remain was extended to 7 April 1985. The appellant did not apply for a further extension of his stay but remained in the United Kingdom without leave. On 23 September 1988 the appellant was arrested and interviewed by an immigration officer. The immigration officer reported the result of the interview on the telephone to an immigration inspector who acting on behalf of the Secretary of State decided that the appellant should be deported and authorised the immigration officer to serve a notice of intention to deport upon the appellant upon the ground that he had overstayed his leave to enter the United Kingdom. On 20 February 1989 the appellant's appeal against the decision to deport him was dismissed by the adjudicator. On 8 June 1989 the appellant's further appeal was dismissed by the Immigration Appeal Tribunal.

12

The Divisional Court [1990] 2 W.L.R. 1195 granted orders of certiorari to quash each of the decisions to deport on the ground that the Secretary of State could not validly authorise immigration inspectors to make decisions to deport immigrants from the United Kingdom.

13

The Court of Appeal [1990] 2 W.L.R. 1195 allowed appeals by the Secretary of State and granted the appellants leave to appeal to your Lordships' House.

14

These appeals raise three issues. Firstly, can the Secretary of State validly authorise immigration inspectors to take on his behalf decisions to deport persons from the United Kingdom. Secondly, did the inspectors in fact take the decisions or did they merely rubber-stamp decisions already taken by the immigration officers. Thirdly, whether a submission that a decision to deport has been taken by a person who has no power to make it is within the appellate jurisdiction created by section 15 of the Immigration Act 1971 as amended by section 5 of the Immigration Act 1988.

The statutory framework
15

Each of the appellants, one a citizen of Nigeria, the other a citizen of St Vincent, is subject to...

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