R v The Secretary of State for The Home Department and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROCH,LORD JUSTICE POTTER,LORD JUSTICE WARD |
| Judgment Date | 29 July 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0729-12 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 1998 |
| Docket Number | QBCOF 98/0008/4 |
[1998] EWCA Civ J0729-12
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST (MR JUSTICE KAY)
Royal Courts of Justice
Strand
London WC2
Lord Justice Roch
Lord Justice Ward
Lord Justice Potter
QBCOF 98/0008/4
In The Matter Of An Application For Judicial Review
MR N BLAKE QC and MR M MULLINS (Instructed by Messrs Sutovic & Hartigan, London, W3 6NG) appeared on behalf of the Appellant.
MR N PLEMING QC and MR S KOVATS (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondent.
Wednesday 29 July 1998
The question in this appeal is whether the Secretary of State may form an intention to make a deportation order under s. 3(5)(a) of the Immigration Act, 1971 prior to serving a notice curtailing leave to enter and remain in this country, that is to say before the proposed deportee has become an "over-stayer". This appeal is from the judgment of Kay J of the 31st July 1997 quashing the decision of the Immigration Appeal Tribunal of the 7th November 1996 refusing the Secretary of State leave to appeal the decision of a special adjudicator of the 10th October 1996 that the Secretary of State did not have such a power and consequently there was no valid appeal for the special adjudicator to hear.
The case concerns a Miss Ana Vladic who is a Croatian citizen. Miss Vladic arrived in the United Kingdom on the 24th February 1994 and was given leave to enter and remain for two years as an au pair. On the 19th April 1994 she claimed political asylum. That claim was refused by the Secretary of State on the 15th March 1995 although Miss Vladic was not then notified of the refusal. On the same date the Secretary of State decided to curtail her limited leave using his power under s. 7(1) of the Asylum and Immigration Appeals Act, 1993. Notice of that curtailment was not served at that time.
On the 9th May 1995 a letter was sent to Miss Vladic containing the following documents:
A notice of the Secretary of State's decision to refuse asylum, and to curtail her leave to remain in the UK, dated the 15th March 1995,
a letter explaining the reasons for the Secretary of State's refusal of asylum, dated the 15th March 1995, and
a notice of the Secretary of State's intention to make a deportation order in her case, which recited that the appellant's application for asylum had been refused and her limited leave had been curtailed by virtue of s. 7(1) of the 1993 Act, dated the 9th May 1995 together with:
a letter explaining the reasons for the Secretary of State's decision to make a deportation order, also dated the 9th May 1995.
The notice of refusal of asylum and curtailment of limited leave stated that Miss Vladic's limited leave was "to expire with immediate effect". The evidence on behalf of the Secretary of State was that the documents were placed in the envelope in the order set out above, with above the notice of refusal of asylum and curtailment a pro-forma explaining what was enclosed, and below the letter of the 9th May a restriction order and an appeal form for an appeal against the notice of intention to deport. The documents were posted on the 9th May, first class to be delivered by recorded delivery to Miss Vladic's address. Copies were posted at the same time, first class by recorded delivery to Miss Vladic's solicitors. The record of delivery has not been exhibited to the affidavit of Alison Jane Dick, an assistant solicitor in the office of the Treasury Solicitor, but it is safe to assume that both envelopes were delivered on Wednesday 10th May.
Miss Vladic had no right of appeal against the refusal of asylum or the curtailment of leave. She was entitled to appeal against the notice of intention to make a deportation order under s. 8(3) of the 1993 Act on the ground that the execution of such an order would be a breach of the United Kingdom's Convention obligations. Miss Vladic exercised that right. When the matter came before the special adjudicator a preliminary issue was raised, namely that the notice of intention to make a deportation order had been given before Miss Vladic became an over-stayer and was consequently invalid, because the Secretary of State does not have power to form an intention to make a deportation order until grounds for such an order exist, in this case prior to Miss Vladic becoming an over-stayer. The special adjudicator relying on the decision of the Immigration Appeal Tribunal in the case of Yu Zhi Liang -v- Secretary of State [29th July 1996] ruled that the notice of the Secretary of State's intention to make a deportation order had been invalid and consequently there had been no appeal for the special adjudicator to hear. The Secretary of State's attempt to appeal that decision before the Immigration Appeal Tribunal failed on the 7th November 1996. On the 29th January 1997 the Secretary of State applied for judicial review of the Immigration Appeal Tribunal's refusal to grant the Secretary of State leave to appeal.
The Immigration Appeal Tribunal in Yu Zhi Liang -v- Secretary of State decided this issue in these terms:
"We appreciate the Secretary of State's reasons for what we understand is, or has been, his usual practice to serve on a person a notice of decision to deport at the same time as a notice of curtailment of leave, …… but, it is our view, that having regard to the provisions of s. 7 of the Asylum and Immigration Appeals Act 1993, that that practice is not valid. In this case the appellant was served with a notice of refusal of asylum and curtailment of limited leave, which was dated the 3rd July 1995, only on the 6th September 1995 and that the appellant's limited leave therefore extended to that date. We have had regard to Mr Horne's contention that the appellants had been given a warning about the possibility of having his leave curtailed prior to his interview in June 1995 but, it seems to us, that that fact cannot overcome the requirements of the Act. Furthermore, by way of comment only, we take the view that the alteration of dates on the Form PF1 shown at page 49 of the bundle, is undesirable."
Section 7 of the 1993 Act provides:
"(1) Where:
(a) a person who has limited leave under the 1971 Act to enter or remain in the United Kingdom claims that it would be contrary to the United Kingdom's obligations under the convention for him to be required to leave the United Kingdom after the time limited by leave, and
(b) the Secretary of State has considered the claim and given to the person notice in writing of his rejection of it,
the Secretary of State may by notice in writing, given to the person concurrently with the notice under paragraph (b) above, curtail the duration of the leave.
(2) No appeal may be brought under s. 14 of the 1971 Act or s. 8(2) below against the curtailment of leave under sub-section (1) above.
(3) The power conferred by sub-section (1) above is without prejudice to sections 3(3) and 4 of the 1971 Act and the Immigration Rules within the meaning of that Act.
(4) Where :
(a) the duration of a person's leave under the 1971 Act to enter or remain in the United Kingdom has been curtailed under sub-section (1) above, and
(b) the Secretary of State has decided to make a deportation order against him by virtue of s. 3(5) of that Act, he may be detained under the authority of the Secretary of State pending the making of the deportation order ……."
Section 8(3) of the Act reads:
"Where the Secretary of State:
(a) has decided to make a deportation order against a person by virtue of s. 3(5) of the 1971 Act, or
(b) has refused to revoke a deportation order made against a person by virtue of s. 3( 5) or (6) of the Act, the person may appeal to the special adjudicator against the decision or refusal on the ground that his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Convention; but a person may not bring an appeal under both paragraph (a) and paragraph (b) above."
Kay J disagreed with the reasoning of the Immigration Appeal Tribunal in that case, accepting the submission made on behalf of the Secretary of State that the Immigration Appeal Tribunal had failed to recognise the two stage procedure involved in the making of deportation orders. Whereas it might be correct that a deportation order could not be made prior to the intended deportee becoming an over-stayer, if that was the ground on which the deportation order was being made, it did not follow that the Secretary of State was precluded from forming an intention to make a deportation order if there existed grounds for anticipating that the individual would become an over-stayer and would not voluntarily leave this country. The judge found nothing in the statutory provisions which precluded this analysis of the Secretary of State's powers. On the contrary, the Immigration Rules (HC 395) Rule 339 which had been substituted for Rule 180(e) of HC 725 as from the 1st September 1996 gave support to the submission made on behalf of the Secretary of State. That rule provides:
"When a person's leave is curtailed under s. 7( 1) or 7(1A) (Curtailment of Leave of Dependants) of the Asylum and Immigration Appeals Act 1993, he may at the same time, be served with a notice of the Secretary of State's intention to make a...
To continue reading
Request your trial