R v Secretary of State for the Home Department, ex parte Yeboah
| Jurisdiction | England & Wales |
| Judgment Date | 14 April 1987 |
| Date | 14 April 1987 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Sir Nicolas Browne-Wilkinson, Vice Chancellor Parker, Ralph Gibson LJJ
Sir Charles Fletcher-Cook QC and K S Nathan for the appellant Yeboah
K S Nathan for the appellant Draz
D Pannick for the respondent
Cases referred to in the judgments*:
R v County of London Quarter Sessions Appeals Committee ex parte RossiELRUNK [1956] 1 QB 682: [1956] 1 All ER 670.
Hewitt v Leicester CorporationWLRUNK [1969] 1 WLR 855: [1969] 2 All ER 802.
Makhan Singh v Secretary of State for the Home Department (unreported, CA 14 December 1976).
R v Immigration Appeal Tribunal ex parte Ekrem MehmetWLR [1977] Imm AR 56: [1977] 1 WLR 795.
CSSU V Minister for Civil ServiceELRUNK [1985] AC 374: [1984] 3 All ER 935.
R v Secretary of State for the Home Department ex parte Draz QBD [1985] Imm AR 215.
R v Secretary of State for the Home Department ex parte Yeboah QBD [1986] Imm AR 52.
Deportation — notice of intention to deport — whereabouts of person concerned unknown to the Secretary of State — notice sent to last known address — notice not received by the person — whether the subsequent deportation order was a nullity — the meaning of “sent” in the relevant Regulations — whether it means “despatched by post” or “received”. Immigration Act 1971 ss. 3(1), 3(5), 5(1), 14(1), 15(1), 15(2), 15(3), 18, 21: Interpretation Act 1978 s. 7: Immigration Appeals (Procedure) Rules 1972 rr. 4(11), 5, 8(3), 11(4), 12, 24(1): Immigration Appeals (Notices) Regulations 1972 rr. 3(1), 3(4), 6.
Appeals — when time begins to run — whether where a notice is “sent by post”, time begins to run from the date of its despatch. Immigration Appeals (Procedure) Rules 1972 rr. 4(7), 4(11).
Principle of Proportionality — whether it forms part of English law — whether where relevant facts were not known to the Secretary of State at the date of his decision the principle can be invoked in judicial review proceedings to quash that decision.
The two appellants sought review of the Secretary of State's signing of deportation orders against them. They had both failed in applications for judicial review at first instance. The particular facts are set out in the judgments. In each case the appellant asserted that he had not received notice of the Secretary of State's intention to sign a deportation order and in consequence had had no opportunity to exercise a right of appeal against the decision. The proper notices had been sent to the appellants” last known addresses, but not received by them, they having failed to keep the Home Office advised of changes of address.
Counsel for the appellants submitted that no proper notice was given in accordance with regulation 3(1) of the Notices Regulations. Counsel for the respondent argued that in the events which had happened, regulation 3(4) applied and there was no need for notice to be given: in the alternative under regulation 6 despatch of the notices to the last known addresses of the appellants satisfied the requirements of the regulations.
On Mr Yeboah's behalf it was also pleaded that the deportation order should be quashed as being, in the circumstances, a disproportionate penalty.
Held:
1. In regulation 4(11) of the Procedure Rules 1972 ‘sent’ means ‘despatched by post’ and not ‘received’: ex parte Rossi distinguished. The regulation applies to all notices to be served under the Notices Regulations.
2. Although s. 1 of the Interpretation Act 1978 applies to both the Procedure Regulations and the Notices Regulations, in the ultimate analysis, the Regulations have to be construed as a whole. It would be impossible for the Secretary of State to operate the 1971 Act or the Regulations generally if ‘sent’ meant ‘received’.
3. Where the Secretary of State relies on regulation 3(4) of the Notices Regulations (that he has no knowledge of a person's whereabouts) and his action is challenged, affidavit evidence as to the Secretary of State's knowledge is not obligatory: the Court could be satisfied by other evidence, but affidavit evidence may normally be desirable.
4. Without determining whether the principle of proportionality had any place in English law, the Court concluded it could not be pleaded in relation to facts not known to the Secretary of State at the date of his decision, when that decision was challenged by way of judicial review.
The Vice-Chancellor: These are two appeals from decisions of the Divisional Court dismissing applications for judicial review. Although the facts of the two cases differ, the central issue in both is the same, viz whether a deportation
order can validly be made under the Immigration Act 1971 in a case where notice of the decision to deport has been sent to, but not received by, the person to be deported.Statutory background
The background statutory framework is as follows. Under section 1(2) of the Act, those not having a statutory ‘right of abode’ in the United Kingdom are subject to such regulation and control of their entry into, and stay in, the United Kingdom as the Act provides. Under section 3(1) a person may be given leave to enter for a limited period and subject to conditions. Such limitations and conditions may subsequently be varied. Under section 3(5) a person is liable to deportation if he remains after the time limited by the leave to enter. Section 5(1) provides that a person who is liable to deportation under section 3(5) can have a deportation order made against him. Such deportation order can be revoked by the Secretary of State. The Act does not expressly distinguish between a decision to deport on the one hand and the actual deportation order on the other. But such a distinction is implicit in the provisions of the Act and is in practice observed. Section 5(1) provides that a deportation order invalidates any leave to enter or remain in the United Kingdom given to the applicant whether before or after the deportation order is made. Therefore, so long as a deportation order stands, an applicant can no longer have any right to stay in the United Kingdom.
Part II of the Act lays down a system of appeals to adjudicators and the Immigration Appeals Tribunal against decisions made under the Act. Section 15(1) provides for appeals against decisions to make a deportation order and to refuse to revoke a deportation order. It contains two provisions of central importance to the present cases. First, section 15(2) provides that a deportation order shall not be made ‘so long as an appeal may be brought against the decision to make it’. This provision is central to the argument: both appellants are seeking to establish that at the time at which their respective deportation orders were made they still had a right of appeal against the decision to deport, as a result of which the deportation orders themselves were nullities. Secondly, section 15(5) provides that no appeal can be brought against a refusal to revoke a deportation order so long as the applicant is in the United Kingdom. Therefore, in the present cases if the existing...
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