R v Secretary of state for the home department ex parte Johangir Ahmed
| Jurisdiction | Scotland |
| Judgment Date | 11 May 1994 |
| Date | 11 May 1994 |
| Court | Court of Session (Inner House) |
Inner House of the Court of Session
The Lord Justice Clerk, Lord McCluskey Lord Clyde
M Bovey for the petitioner
Mrs F Reith for the respondent
Cases referred to in the judgments:
Jamieson v JamiesonSCELRUNK [1952] SC (HL) 44: [1952] AC 525: [1952] 1 All ER 875.
Barrs v British Wool Marketing BoardSC [1957] SC 72.
Ceylon University v FernandoWLRUNK [1960] 1 WLR 223: [1960] 1 All ER 631.
Malloch v Aberdeen CorporationSCUNK [1971] SC (HL) 85: [1971] 2 All ER 631.
Cinnamond and ors v British Airport AuthorityWLRUNK [1980] 1 WLR 582: [1982] 2 All ER 368.
R v Immigration Appeal Tribunal ex parte WeerasuriyaUNK [1982] Imm AR 23: [1983] 1 All ER 195.
Tait v Central Radio Taxis (Tollcross) Limited [1989] SLT 217.
R v Secretary of State for the Home Department ex parte Johangir Ahmed (unreported, CS, 28 May 1993).
Natural justice deportation conducive to the public good appeal to Tribunal petitioner not represented no knowledge of English unaware of explanatory statement or its contents whether Tribunal erred in failing to make clear to petitioner the contents of that statement and to invite his comments on it whether nevertheless in the events which happened the petitioner had put to the Tribunal all matters he considered material the test of relevancy the need for a case of substance prejudiced by irregularity to justify judicial review. Immigration Act 1971 s.3(5)(b): Immigration Appeals (Procedure) Rules 1984 r.8.
The petitioner was a citizen of Pakistan who had been convicted of serious criminal offences. The Secretary of State decided to initiate deportation proceedings against him pursuant to section 3(5)(b) of the 1971 Act. He appealed to the Tribunal. At the hearing he was unrepresented: he did not speak English. Although the Home Office explanatory statement had been sent earlier to his representatives, he subsequently claimed that he had never seen it and was unaware of its contents. It seemed that the account of the events which led to his conviction, as set out in the explanatory statement, was not a full and exact account of the part the applicant had played in those crimes.
The Tribunal heard oral evidence from the petitioner who explained what his part had been: it did not however put to him the contents of the explanatory statement. Before the court it was argued that that had been a procedural irregularity and that the petitioner had been prejudiced: had he had an opportunity to comment on the explanatory statement his true (and lesser) part in the offences would have become apparent. For the respondent it was submitted that in the events which had happened the petitioner had put to the Tribunal all that he could have put in relation to the contents of the explanatory statement.
At first instance Lord Murray had not accepted that it had been shown that the Tribunal had not drawn the petitioner's attention to the contents of the explanatory statement. On appeal the case proceeded on the basis that the explanatory statement was not put to him, the court accepting pro veritate his averments that he was not asked about the aggravation contained in the explanatory statement and has no recollection of having seen the explantory statement prior to the hearing or having it explained to him.
Held
1. The Tribunal should have made it clear to the petitioner that he was entitled to comment upon the contents of the explanatory statement and it was a procedural irregularity that no such opportunity was afforded him.
2. However it was necessary for the petitioner to show that he had suffered prejudice and that if he had had such an opportunity, there could have been a different outcome.
3. In the event the petitioner's oral evidence had covered all the matters which it was now asserted he would have put to the Tribunal if he had been given the opportunity to comment on the explanatory statement.
4. The petitioner accordingly suffered no prejudice.
Lord McCluskey: The petitioner is a citizen of Pakistan. He was born in August 1965. In 1980 he was admitted to the United Kingdom for settlement. On 23 January 1986 he was convicted at Birmingham Crown Court of rape and aggravated burglary (two counts) and sentenced to five years' youth detention. He received five years' youth custody on the rape charge and four years each in respect of the aggravated burglary charges; all the sentences were made concurrent. The court made no deportation order. The petitioner, who had spent nearly a year in custody awaiting trial, was released from jail on or about 5 May 1987. He was again arrested, in 1988, upon further charges and spent some 11 months in custody awaiting trial upon those charges; he was acquitted of those charges on or about 6 December 1988. On 13 August 1987, however, the respondent had taken a decision to make a deportation order in respect of him. The petitioner appealed to the Immigration Appeal Tribunal (the Tribunal) against that decision. The hearing before the Tribunal took place on 14 September 1988 when the petitioner was brought from prison where he was in custody awaiting trial on the outstanding charges. He had no legal representation at the appeal. Both the petitioner and the chairman of the Tribunal had expected him to be represented by solicitors; but the hearing was proceeded with. On 4 October 1988 the Tribunal refused the appeal. The respondent then signed a deportation order in relation to the petitioner on 14 December 1988. The respondent was apparently unable to trace the petitioner between the date of signing the deportation order and 19 September 1990 in order to have the deportation order served upon him; accordingly the respondent failed to effect his removal from the United Kingdom. On 19 September 1990 the petitioner, through solicitors, made contact with the respondent's department and applied for leave to remain in the United Kingdom, on the basis of his marriage on 27 March 1990 to a British citizen resident in Aberdeen. The respondent then made arrangements for the petitioner's removal from the United Kingdom on 27 December 1990 and for his detention pending such removal. The petitioner was liberated ad interim on 24 December 1990, the date on which he raised these proceedings.
In this petition the petitioner seeks declarator that in certain specified respects the Tribunal erred in law and acted contrary to natural justice in arriving at its decision on the appeal; he therefore seeks reduction of that decision. He also seeks declarator that in deciding to enforce the said deportation order the respondent erred in law; accordingly he seeks reduction of the said decision; the decision referred to was a decision to enforce the deportation order, and it is narrated in a letter to Frank Doran, MP, the petitioner's Member of Parliament, from a minister at the Home Office, Peter Lloyd. There are two copies of that letter, one dated 20 December 1990 and the other 8 January 1991; but they are in identical terms and are both signed by the minister.
After sundry procedure the petition was put out before the Lord Ordinary for a first hearing on 14 May 1993. On 28 May 1993 the Lord Ordinary sustained the respondent's first plea-in-law, a plea to the relevancy, and dismissed the petition. The petitioner now reclaims agains that interlocutor. The Lord Ordinary's opinion sets forth the submission made to him and his reasons for dismissing the petition. That opinion contains a fuller narrative of the history of the matter than is contained herein.
The Lord Ordinary having sustained the plea to the relevancy and dismissed the petition, the decision which is reclaimed against is a decision on a question of law. The question of law is whether or not the petitioner's pleadings disclose a case relevant for enquiry. The petitioner does not seek enquiry in relation to the decision of the respondent intimated by the minister, Peter Lloyd, in the letters referred to, the decision to enforce the deportation order: both parties were agreed that that matter should be disposed of without enquiry and on the basis of the pleadings and the relevant documentation contained in the appendix. However, in relation to the other issues, it is clear that, as the question of relevancy is a pure question of law, this court is entitled to upohold the Lord Ordinary's decision even if it does not accept the Lord Ordinary's full reasoning; the responsibility of this court is to determine for itself the question of relevancy. In these circumstances, it is not strictly necessary to record and consider in detail the...
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