R v Secretary of State for the Home Department, ex parte Musah (Abukari Alhassam)
| Jurisdiction | England & Wales |
| Judgment Date | 10 November 1994 |
| Date | 10 November 1994 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Glidewell, Mann, Millett LJJ
I Kumi for the applicant
N Garnham for the respondent
Cases referred to in the judgments:
Mohammed Mujaheed Hussain and anr v Immigration Appeal Tribunal and Secretary of State for the Home Department [1991] Imm AR 413.
R v Secretary of State for the Home Department ex parte Samuel Ogunbodede [1993] Imm AR 28.
R v Secretary of State for the Home Department ex parte Mohammed Akbar Butt (unreported, CS, 25 March 1994).
R v Secretary of State for the Home Department ex parte Abukari Musah [1994] Imm AR 395.
Michael Ofori v Secretary of State for the Home Department [1995] Imm AR 34.
Deportation overstayer deportation order signed while applicant's whereabouts unknown application then made for indefinite leave after 12 years as overstayer whether Secretary of State's refusal to revoke deportation order Wednesbury unreasonable whether applicant had a legitimate expectation he would be granted indefinite leave. Immigration Act 1971 (as amended) s. 3(5)(a).
Notice of intention to deport sent to address given by applicant on arrival in United Kingdom returned with advice that applicant had moved to another address notice sent to that second address and not returned applicant denied he had ever lived at that address whether good service whether in the circumstances the Secretary of State had any obligation to serve a notice. Immigration Appeals (Notices) Regulations 1972 rr. 3(4), 6.
Renewed application for leave to move for judicial review, following refusal by Judge J.
The applicant was a citizen of Ghana. He arrived in the United Kingdom in September 1979: he secured leave until February 1980: an application for further leave was refused: he did not leave the United Kingdom. In March 1981 a letter was sent to him at the address he had given on arrival in the United Kingdom warning him of his liability to deportation. It was returned with an anonymous note stating the applicant had moved to a new address. In April 1983 a notice of intention to deport was sent to both the applicant's original address and to his alleged new address. The applicant asserted that he had never lived at the second address.
The deportation order was signed in September 1983. Nothing was heard from the applicant until in February 1992 application was made on his behalf for indefinite leave on the basis of long residence. After extended correspondence with the applicant's representatives, by which time the applicant had been in the United Kingdom for 14 years, the Secretary of State refused to revoke the deportation order.
Counsel argued, as he had argued before Judge J, that the Secretary of State's refusal to revoke the deportation order was Wednesbury unreasonable: he had failed to have regard to his policy and in the light of the ministerial policy the applicant had a legitimate expectation that he would be granted leave. Counsel also submitted that there had not been good service of the notice of intention to deport (a point not raised before Judge J). The notice to the first address of the applicant had only been by ordinary post (not recorded delivery) and the second address to which the notice had been sent had never been the applicant's address. Because there had been no good service of the notice, the deportation order was invalid.
Held
1. Replying to letters asking him to apply the long residence concession it was obvious that without explicitly saying so, the Secretary of State must have taken the policy into account.
2. The fact that 14 years had elapsed by the time the Secretary of State made his final refusal did not mean he was obliged to wipe the slate clean and take no account of the applicant's earlier history.
3. Following HussainENR, where a deportation order had been made there could not be any legitimate expectation that if the subject of the deportation order succeeded in staying on in the United Kingdom long enough for 14 years in total to elapse, thereafter the concessionary policy would be applied in such a way as to allow him to stay.
4. There had been good service of the notice of intention to deport. The Home Office had been told the applicant had moved to the second address in question: whether or not he had actually moved there did not matter: it was the last address known to the Home Office. Alternatively there was no known address for the applicant and the Secretary of State was relieved of the obligation to serve any notice.
Glidewell LJ: This is a renewed application for leave to move for judicial review after refusal by Judge J on 14 April 1994. I want to say at once that Mr Kumi has addressed us with persistence and care in a case that appears unpromising. He has argued very carefully every point that could possibly be argued on his client's behalf. In the end, for my part, I would refuse this renewed application. I shall explain why.
Mr Musah is a citizen of Ghana. He was admitted as a visitor to the United Kingdom on 18 September 1979. He was given leave to remain initially for a short time, and leave was then extended until 28 February 1980. According to the Home Office, a further application made by him on 8 February 1980 for a further extension was refused. I put it in that way because it is submitted on his behalf that that was not an application made by him, but by another gentleman of the same name; that does not matter for present purposes.
His leave to remain expired on 28 February. Under the regulations there is an automatic extension of the stay to enable an appeal to be made, but that expired on 7 March 1980. No appeal has been entered. Ever since then he has been an overstayer. On 30 March 1981 an official of the Home Office wrote a letter to Mr Musahundoubtedly this Mr Musahat the address which he had given when he arrived, at 155 Sussex Gardens, London, W2. It read:
Dear Mr Musah, as you are aware you are now in the United Kingdom without permission and should make arrangements to leave. If you fail to leave the United Kingdom without delay, we shall have to consider taking action to enforce your departure. Yours sincerely
That letter came back. It was sent back to the Home Office...
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