R v Secretary of state for the home department ex parte William Kwaku Duah Brew
| Jurisdiction | England & Wales |
| Judgment Date | 06 October 1987 |
| Date | 06 October 1987 |
| Court | Queen's Bench Division |
Queen's Bench Division
McCullough J
S Bhanji for the appellant
D Pannick for the respondent
Cases referred to in the judgment:
O'Reilly v MackmanELRUNK [1983] 2 AC 237: [1982] 3 All ER 1124.
CSSU v Minister for the Civil ServiceELRUNK [1985] 1 AC 374: [1984] 3 All ER 935.
Deportation overstayer whereabouts unknown decision to initiate deportation proceedings taken service dispensed with applicant subsequently arrested not told, during Home Office interviews of decision to deport deportation order then signed whether Secretary of State acted unfairly whether applicant suffered detriment through loss of opportunity to lodge out of time appeal or to leave country voluntarily and, on basis of subsequent marriage to seek re-entry as husband the relevance of the facts and his immigration history. Immigration Act 1971 ss. 3(5), 15(1)(a), 24: Immigration Appeals (Procedure) Rules 1984, rr. 4(7), 4(11), 5(1), 5(2): Immigration Appeals (Notices) Regulations 1984 rr. 3(1), 3(4). HC 169 paras. 54, 76.
Legitimate expectation whether on the facts the applicant had a legitimate expectation that he would have an opportunity to appeal against the decision to initiate deportation proceedings.
The applicant was admitted in February 1981 as a visitor: he went to ground and became an overstayer. He never went to the address in the United Kingdom which he had given to the immigration authorities. The Secretary of State decided in October 1983 to initiate deportation proceedings. The applicant's whereabouts being unknown, service of the notice was dispensed with under regulation 3(4) of the Notices Regulations, albeit a copy was sent to the address held by the immigration authorities. In March 1984 the applicant was arrested. He was convicted of overstaying: the magistrates' court recommended his deportation, a recommendation then quashed by the Crown Court. The applicant meanwhile married.
The applicant was interviewed three times by the Home Office between July 1984 and February 1986. He was not told of the decision to initiate deportation proceedings. The deportation order was signed in March 1986.
On application for judicial review it was argued that the Secretary of State had acted unfairly in not bringing the notice of intention to deport to the applicant's notice as soon as practicable. He had been denied the opportunity to seek leave to make an out of time appeal. He had lost the opportunity voluntarily to leave the United Kingdom and apply for admission as a husband. Moreover, he had had a legitimate expectation that he would have an opportunity to appeal against the decision to initiate deportation proceedings.
Held:
1. The Secretary of State was under no statutory duty to advise the applicant in March 1984 or later of the decision to deport. The Court made no finding as to whether he was under any other kind of duty to give him notice.
2. The Court expressed the view, however, that it would be better if, after the whereabouts of the individual become known, he were told that a decision to deport him had been made and when.
3. The Court would not decide the question of fairness because on the facts, the applicant had suffered no detriment. The root cause of the applicant's loss of a right of appeal was his going to ground: that was not a special circumstance such as would likely have led to his being allowed to appeal out of time. Reviewing the case as a whole it was unlikely that he would have left the country voluntarily or that, if he had, he would have been granted leave to enter as a husband, in the light of the provisions of paragraph 76 of HC 169.
4. As the doctrine of legitimate expectation had so far developed, it had no application to the facts of this case.
McCullough J: Mr Brew applies for judicial review of two actions of the Secretary of State for the Home Department. First, the making on 3 March 1986 of an order for his deportation because he had overstayed in this country beyond his leave and, second, the giving of directions to remove him served on him on 3 May 1986 consequential to the deportation order. Clearly if the deportation order is to be quashed the directions to remove go too. If the deportation order stands there is no basis upon which the directions to remove could separately be quashed. So essentially the decision is about the deportation order.
The applicant was born in 1959 in Ghana. He came to this country, not for the first time but on the material occasion, on 14 February 1981. He was given leave to enter and stay for a month as a visitor. The address he gave was one in Kenton where someone whom he described as his uncle lived. This was an address at which he had stayed on an earlier visit the previous year. Unknown to the Home Office the applicant never went to this address on the occasion of this visit. When his month expired he overstayed and, as he later admitted, went to ground.
The authorities, realising that his permission had expired, looked for him, and in September 1981 a police officer went to the address in Kenton only to be told that he had not stayed there since 1980 and that it was not known where he was. On 13 and 14 September 1982 the...
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R Arthur Obafemi Cecil Decker v Secretary of State for the Home Department and Another
...with a view to deportation he would leave voluntarily. Voluntary departure is not in point. 48 The Claimant relied on R v SSHD ex p William Kwaku Duah Brew [1988] Imm AR 93 to reinforce his argument that the effect of a deportation order is to remove the person's right to leave voluntarily......
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R Arthur Obafemi Cecil Decker v Secretary of State for The Home Department (First Respondent) The Upper Tribunal (Immigration and Asylum Chamber) (Second Respondent)
...and promote his prospects of staying in the UK by getting a UK residency card [para 47]; (6) The case of R v SSHD ex p William Duah Brew [1988] Imm AR 93 did not assist the Appellant. In that case as in this case, there was no realistic prospect that the subject of the deportation order wou......