R v Secretary of State for the Home Department ex parte pate Mehmet Tahir Onur
| Jurisdiction | England & Wales |
| Judgment Date | 15 April 1987 |
| Date | 15 April 1987 |
| Court | Queen's Bench Division |
Queen's Bench Division
Otton J
E. Cotran for the applicant
J Laws for the respondent
Cases referred to on the judgment:
Carltona Ltd v Commissioner for WorksUNK [1943] 2 All ER 560.
Associated Provincial Picture Houses v Wednesbury CorporationELRUNK [1984] 1 KB 223: [1947] 2 All ER 680.
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.
R v Immigration Appeal Tribunal ex parte Ekrem MehmetUNK (DC) [1977] Imm AR 56: [1977] 2 All ER 602.
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.
R v Immigration Appeal Tribunal ex parte Chummun and ors (QBD) [1987] Imm AR 92.
Mohamed Draz v Secretary of State for the Home Department (CA) [1987] Imm AR 414.
Deportation decision to deport notice of decision not received by applicant whether subsequent deportation order invalid when time begins to run for an appeal the case of Draz followed.
Revocation of deportation order refusal made by Minister of State on behalf of the Secretary of State whether decision unlawful. Immigration Act 1971 ss. 5(1), 5(2), 13(5).
Notice refusal to revoke deportation order communicated to solicitors by letter no formal notice of refusal also served whether failure to serve formal notice invalidated the refusal. Immigration Appeals (Notices) Regulations 1984 rr. 3, 4, 6.
The applicant for judicial review was an overstayer. The notice of decision to deport was sent to him at his last known residence and his last known place of work: in one case the address was incorrect: neither notice was received by the applicant. It was pleaded that, following ex parte Chummun the deportation order was invalid. After the applicant became aware of the deportation order and his marital circumstances changed, his solicitors sought the revocation of the deportation order. That was refused in letters written by the Minister of State at the Home Office, on behalf of the Secretary of State. With the letters no formal notice of refusal, in accordance with the Notices Regulations was sent. It was argued by counsel that the Minister of State had no power to act as he did and that the process was flawed by the failure to serve formal notice.
Held
1. Following the Court of Appeal judgments in Draz, reversing ex parte Chummun, time for an appeal against a decision to deport began to run when the notice was put in the post, not when it was received by the person to whom it was directed.
2. Following the Carltona principle, the Minister of State was entitled to act on behalf of the Secretary of State in the circumstances.
3. The failure to send a formal notice of refusal to revoke the deportation order did not invalidate that refusal. The power to revoke is not contingent upon the giving of a notice. The applicant had not been in any way prejudiced. Even if mandamus issued to require the service of such a notice it would not, in all probability, lead to the revocation of the order. The discretion of the Court would not be exercised.
4. The decisions in this case could not be faulted on Wednesbury principles.
Otton J: This is an application for judicial review whereby it is sought to quash the Secretary of State's decision to deport the applicant, on 24 March 1984, and the deportation order made 15 June 1984, or alternatively to quash his refusals to revoke the deportation order, dated 14 December 1984 and 18 February 1985.
The applicant, Mehmet Tahir Onur, is a Turkish citizen. He first entered the United Kingdom on 14 September 1974 when he was given leave to enter as a student at Aston University. He was given extensions of leave until 14 September 1977. During this time he formed a very close relationship with Shelia Marie Parker, a British citizen. At the end of his studies he returned to Turkey, and she later joined him. They became engaged in January 1978. It was their intention to return to the United Kingdom. She returned towards the end of 1979. On 10 May 1980 the applicant was given leave to enter the United Kingdom for one month as a visitor. Twelve days later, on 22 May 1980, he married her. He was granted leave to remain as a foreign husband until 22 May 1981.
On 21 May 1981 the applicant wrote to the Home Office requesting the removal of the restrictions on his leave on the basis that he had been married for over a year and he wished to settle permanently in this country. The marriage, however, soon ran into difficulties. While the application for settlement was under consideration information was received from Miss Parker that the marriage had broken down and that her husband had left her three months previously. He had formed a relationship with another woman.
On 27 September 1981 the applicant was interviewed by officials from the Home Office. He was served with a notice that he was deemed to be an illegal entrant, having obtained entry by deception. He was detained at Ashford Remand Centre. The applicant applied for and was given leave to move for judicial review of the decision to treat him as an illegal entrant.
At the time of his arrest he had been living with his girlfriend at 307 Westborne Park Road. However, while in the remand centre the applicant sought a reconciliation with his wife and she accepted him back. In the circumstances it was decided to grant the applicant a further 12 months leave, from 29 July 1982, as a foreign husband. The application for judicial review was thereupon withdrawn. Two months later Miss Parker wrote to the Home Office saying their marriage had deteriorated as soon as the applicant had received leave to remain and that within weeks it had broken down with no possibility of a reconciliation.
On 26 March and 13 April 1983 an immigration officer tried to contact the applicant at 307 Westborne Park Road. The applicant was not in on either occasion, but the immigration officer was informed he still lived there. On 24 April 1983 the officer again visited the address and was told that the applicant had moved out on 18 April and no longer lived there. On 20 May 1983 the officer visited the Kebab Machine at 40b Notting Hill Gate, W11, which is where the applicant had previously been employed. Inquiries at this establishment did not lead to the whereabouts of the applicant. On 29 July 1983 the applicant's leave to remain expired. He did nothing to regularize his stay.
In January 1984 he began an association with another woman, a Miss Wellington, who is now his wife. Divorce proceedings were begun in the early part of 1984. In the meantime the Secretary of State was considering whether to deport the applicant pursuant to section 3(5)(a) of the Immigration Act 1971. He decided to do so on 21 March 1984. In accordance with the regulations, notice had to be given to the applicant of the decision and informing him of his right to appeal to an Adjudicator. On the same day a notice in the statutory form was sent by recorded delivery to 307 Westborne Park Road, accompanied by an appeal form. The letter was returned to the Home Office by the post office. Further...
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