R v Secretary of State for the Home Department, ex parte Beecham (Grazyna)
| Jurisdiction | England & Wales |
| Judgment Date | 06 October 1995 |
| Date | 06 October 1995 |
| Court | Queen's Bench Division |
Queen's Bench Division
Popplewell J
D Seddon for the applicant
Miss D Rose for the respondent
Case referred to in the judgment:
Shamusideen Oladehinde v Secretary of State for the Home DepartmentUNK [1991] Imm AR 111: [1990] 3 All ER 393.
Deportation overstayer service of deportation order applicant interviewed to ensure no change of circumstances since signing of order none identified whether immigration officer then entitled to serve order without reference to others.
Judicial review application to set aside leave granted to move for judicial review innocent misrepresentation when leave granted the principles that will guide the court in considering whether to set aside leave.
Application by the Secretary of State to set aside leave previously granted by Tucker J, for the applicant to seek judicial review of the decision by the Secretary of State to deport her as an overstayer. The respondent was a citizen of Poland. She had married a British citizen. The parties however had ceased to live together as man and wife and in consequence the respondent had been refused variation of leave on the basis of marriage.
It was asserted by the Secretary of State that not all the relevant information had been put to Tucker J when he granted leave to move. It was accepted that in consequence there had been innocent misrepresentation. The court set out the principles that should guide it in those circumstances.
It was argued by counsel for the applicant that there had been procedural impropriety in the service of the deportation order. An immigration officer had visited the applicant to serve the order on her: he had interviewed her to determine whether there had been any change in her circumstances since it had been signed. He established there had not, and immediately served the order. Counsel argued that following Oladehinde, the immigration officer who conducted that interview should not have served the order without reference to another immigration officer not involved in the enquiry.
Held
1. Only rarely would the court set aside leave. Where misrepresentation was alleged at the stage when leave had been granted, it had to be shown that the misrepresentation was material and had had an effect on the judge's decision. It was also necessary for the court to determine whether, in the light of all the material subsequently before it there was an arguable case. If there were, leave should not be set aside.
2. On a review of the material now available, there was no arguable case and leave would be set aside.
3. There had been no procedural impropriety in the immigration officer serving the order immediately after the interview which had established there had been no change in the circumstances of the applicant since the signing of the order. That was not part of the decision-making process.
Popplewell J: This is an application by the Secretary of State for the Home Department to set aside leave granted on paper by Tucker J on 9 June 1995. He then granted leave to the applicant, Mrs Beecham, for leave to challenge the decision of the Secretary of State for the Home Department to sign a deportation order, dated 27 January 1995, and served on 2 June 1995.
The decision, which effectively appears in the letter of 2 June 1995, reads as follows:
I refer to the immigration status of your above named client whose appeal against the Secretary of State's decision in principle of 28 July 1993, to make a deportation order against her, was dismissed by an adjudicator on 9 May 1994 and an application for leave to appeal to the Immigration Appeal Tribunal was refused on 16 June 1994.
The Secretary of State has carefully reviewd this case in the light of all the known circumstances, including an interview with Mr and Mrs Beecham held on 30 August 1994 and a visit to the marital address by immigration officers on 23 October 1994, but he is not satisfied that the marriage is genuine and subsisting or that the couple live together on a permanent basis. He is not persuaded therefore that he would be justified in revoking the deportation decision and allowing Mrs Beecham to remain here with her husband.
The applicant's application for leave did not condescend in the Form 86A to the grounds upon which relief was sought. It simply sets out the relief that was sought and the grounds can only be extracted, with some difficulty, from an affidavit sworn by the applicant, on 8 June 1995, which reads as follows:
It is my most strongly held belief that a decision arrived at by the Secretary for the Home Department to deport me is irrational and due to my continuing subsisting marriage and that further there may be procedural impropriety in arriving at this said decision. As the wife of a British subject, Robert Beecham, I should be entitled to indefinite leave to remain.
Procedural points do not have any great attraction in public law cases. It is possible now, having heard full argument, to ascertain what the ground for seeking to apply for judicial review is, which is that although it is accepted that the applicant is an overstayer and has either used up, or has not been entitled to, any further grounds of appeal, nevertheless she had a subsisting marriage and should be entitled to stay and remain in the country. As I have indicated from the decision letter of the Secretary of State, it is his view that there is not either a subsisting marriage or a genuine living together of the husband and wife.
When the learned judge gave leave he had before him the affidavit from the applicant and a number of documents. There were absent from the papers before him a good number of documents which were undoubtedly material. The Secretary of State today seeks to set aside that leave. No reasons having been given by the learned judge as is the custom. There are two bases: firstly, there has been material non-disclosure; secondly, in any event, there is no arguable case upon which leave...
To continue reading
Request your trial
-
Cable & Wireless (CI) Ltd v ICT Auth
...129, followed. (11) R. v. Commr. for Local Admin., ex p. Field, [2000] C.O.D 58, followed. (12) R. v. Home Secy., ex p. Beecham, [1996] Imm. A.R. 87, referred to. (13) R. v. Home Secy., ex p. Chinoy(1991), 4 Admin. L.R. 457, followed. (14) R. v. Home Secy., ex p. Sholola, [1992] Imm. A.R. 1......
-
R (Tshikangu) v Newham London Borough Council
...discharge the order of Elias J granting permission. Mr Luba has brought to my attention the judgment of Popplewell J in Grazyna Beecham [1996] Imm AR 87, in which he stated that only rarely would the court set aside leave where the misrepresentation to the court had been innocent, and that,......
-
Thakrar
...which attention was drawn on behalf of the applicants Popplewell J in R. v. Secretary of State for the Home Department, ex parte Beecham [1996] Imm AR 87 at page 89, said: "When the learned judge gave leave he had before him the affidavit from the applicant and a number of documents. There ......
-
Thakrar
...which attention was drawn on behalf of the applicants Popplewell J in R. v. Secretary of State for the Home Department, ex parte Beecham [1996] Imm AR 87 at page 89, said: "When the learned judge gave leave he had before him the affidavit from the applicant and a number of documents. There ......