R v Secretary of State for the Home Department ex parte Mustak Popatia; R v Secretary of State for the Home Department ex parte Chye-Poh Chew
| Jurisdiction | England & Wales |
| Judgment Date | 07 June 2000 |
| Date | 07 June 2000 |
| Court | Queen's Bench Division |
Queen's Bench Division
Sullivan J
R Scannell for the applicant Popatia
Miss F Webber for the applicant Chew
A McCullough for the respondent
Cases referred to in the judgment:
Rhemtulla v Immigration Appeal Tribunal [19791980] Imm AR 168.
Attorney-General of Hong Kong v Ng Yuen ShiuELR [1983] 2 AC 629.
Hussain and anr v Immigration Appeal Tribunal and Secretary of State for the Home Department [1991] Imm AR 413.
Jaramillo-Silva v Secretary of State for the Home Department [1994] Imm AR 352.
R v Secretary of State for the Home Department ex parte Butt (unreported, CS, 25 March 1994).
Ofori v Secretary of State for the Home Department [1995] Imm AR 34.
Musah v Secretary of State for the Home Department [1995] Imm AR 236.
R v Secretary of State for the Home Department ex parte Yurteri [1995] Imm AR 296.
Markhan Singh v Secretary of State for the Home Department [1995] Imm AR 299.
Deportation overstayers applicants went to ground deportation orders served on the files Secretary of State declined to revoke the orders whether that service of the orders stopped the clock to prevent applicants benefiting from long residence concession. Immigration Act 1971 s. 3(5)(a); DP5/86.
The applicants were long-time overstayers. After the expiry of their limited leaves they had gone to ground. Their whereabouts were unknown and when in the fullness of time the Secretary of State signed deportation orders, they were served on the files. When the applicants calculated they could benefit from the long residence concession they applied for indefinite leave. The Secretary of State refused to revoke the deportation orders, asserting that the service of the deportation orders on file stopped the clock, so that neither applicant's time in the United Kingdom allowed him to benefit from the concession.
Counsel argued that in the light of DP5/86, the Secretary of State had been wrong to conclude that the clock stopped in that way.
Held
1. The settled cases and in particular Musah, were not authority for the proposition that persons in the position of the applicants could not benefit from the concession, where they were ignorant of the service of the deportation notice.
2. The applicants should have an opportunity to have their cases considered under the Departmental Instructions.
1. Sullivan J: The applicants in both of these cases are overstayers (ie persons who have remained in the United Kingdom unlawfully after the expiration of leave to remain).
2. The Secretary of State made a deportation order in respect of each of the applicants as long ago as 1985. In 1998 both applicants invited the Secretary of State to revoke those deportation orders. The Secretary of State refused to do so and said that he would proceed with deportation. Those decisions are the subject of these proceedings.
3. To set the scene it is helpful to set a brief chronology of events in each case.
4. Mr Chew
5. Mr Chew first came to the United Kingdom on 16 September 1980 and was given 12 months' leave to enter as a student. He went home for a short visit, probably at the end of July 1981, and returned to the United Kingdom on 27 September 1981, when again he was given leave to enter for 12 months as a student.
6. He was not a diligent student and on 20 October 1983 he was refused further leave to remain. An appeal against that refusal was dismissed by an adjudicator on 6 April 1984 and on 17 May 1984 he was told, presumably by letter, to leave the United Kingdom and advised that he would be liable to deportation if he did not.
7. What happened next is explained in a letter dated 21 August 1987 to Mr Chew's Member of Parliament from Mr O'Brien, the Parliamentary Under Secretary of State at the Home Office:
Mr Chew, a Malaysian national, arrived in the United Kingdom on 27 September 1981On 17 May 1984, Mr Chew was directed to leave the United Kingdom immediately and advised of his liability to deportation should he fail to do so.
Mr Chew did not embark as directed. In the absence of any known compassionate factors, he was served on 4 February 1985 with notice of the decision in principle to deport him as an overstayer. Notice of that decision was returned by the Post Office to the Home Office on 6 February 1985 marked gone away. You will appreciate that the onus is on the applicant to notify the Home Office of any change in circumstances. However, Mr Chew failed to notify any such change. Attempts were made to locate Mr Chew by way of letters to his two previous residential addresses [which are set out]
However, these enquiries proved fruitlessAs there was no evidence of Mr Chew having embarked voluntarily, a deportation order was signed against him on 11 December 1985. However, as Mr Chew's whereabouts were unknown, the deportation order could not be served on him.
Nothing further was heard from or about Mr Chew until 2 March 1995 when Zelin & Zelin Solicitors requested leave to remain on an exceptional basis by virtue of his length of residence in the United Kingdom. On 24 April 1995, he was served with the deportation order and was interviewed by immigration officers
8. Certain details of the interview are set out and the letter continues:
9. Consideration was given to the circumstances but they were not considered to be so compelling as to warrant discontinuing with deportation action against himMr Chew's application for leave to remain on the basis of his length of residence here was refused on 7 July 1995. That decision carried no right of appeal. However, Mr Chew had the right of appeal against the proposed destination of the order and he exercised that right on 24 July 1995. That appeal was dismissed by an adjudicator on 5 June 1997 and an appeal to the Tribunal was dismissed on 30 September 1998.
10. In September 1998 further representations were made by Mr Chew's solicitors. Those representations placed particular reliance upon the fact that as from 2 June 1986 there had been a change in departmental practice as to the making of deportation orders relating to untraced overstayers. The change in practice was explained in DP 5/86 (to which I will return). The solicitors put it in this way:
11. In 1995, relying upon the amnesty for unlawful residents with more than 14 years in the UK, he applied for indefinite leave. He then discovered that in 1985 the Home Office had made a secret deportation order against him after serving notice upon him in the wrong name and to the wrong address. The purpose of the secret deportation order procedure was to deny rights of appeal and the Home Office abandoned it in 1986 as unfair!
12. In the light of that alleged unfairness and other detailed matters, including the fact that Mr Chew first arrived in the United Kingdom in 1980, not 1981, the Secretary of State was invited to revoke the deportation order. The Secretary of State declined to do so in a letter dated 23 October 1998:
With regard to Mr Chew's claimed date of entry of 16 September 1980, I would firstly stress that no evidence of such entry has been submitted. Furthermore, if Mr Chew had indeed been in the United Kingdom for the period claimed it is nonetheless clear that he must have embarked at some point before returning on 27 September 1981 since on that date Mr Chew was landed and granted fresh leave to enter for twelve months as a student[The] assertion that Mr Chew would qualify for indefinite leave to remain under the Long Residence Concession if one takes his arrival date as being 16 September 1980 rather than 27 September 1981 is incorrect. Had Mr Chew indeed arrived in September 1980 and subsequently spent less than six months' absence from the United Kingdom before his return on 27 September 1981, he would still fail to benefit from the terms of the Concession. He was lawfully served on 4 February 1985 with notice of intention to deport him and thus had spent less than five years from his arrival to the commencement of enforcement action against him, and not the requisite fourteen
The issue of the internal policy document known as DP 5/86 is not relevant to this type of case. That policy document essentially referred to the now abandoned practice of serving a notice of intention to deport solely on file, without sending a copy to the individual's residential address. Such a practice clearly denied the individual the opportunity to submit an appeal and has rightly been discontinued. This is not the case with Mr Chew. In his case, a notice of intention to deport was validly served to his last known address, no appeal was subsequently lodged and, in the absence of any evidence to suggest that he had embarked, a deportation order was obtained. In fact, this same procedure is still employed today and is both perfectly lawful and perfectly fair
I have carefully reviewed that case in light of all the known circumstances but remain satisfied that Mr Chew's deportation is the correct course of actionConsequently, I am not prepared to revoke the deportation order against Mr Chew nor allow him to remain in the United Kingdom on an exceptional basis.
13. There were further representations which led to a letter from the immigration service headquarters dated 2 December 1998 which confirmed that the Secretary of State was not prepared to revoke the deportation order. The letter said that when the application for long residence was refused on 7 July 1995:
14. Mr Chew had spent 20 years outside the United Kingdom as opposed to 13 years 6 months in this country.
15. The decision explained in these two letters is the subject of Mr Chew's application for judicial review.
16. Mr Popatia
17. Mr Popatia came to the United Kingdom from India on 31 March 1981 and was initially admitted as a visitor for seven days. Extensions were granted, but they expired on...
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