R v The Secretary of state for the home department ex parte Jacqueline Therese Botta
| Jurisdiction | England & Wales |
| Judgment Date | 17 November 1986 |
| Date | 17 November 1986 |
| Court | Queen's Bench Division |
Queen's Bench Division
Russell J
J Dowokpor for the applicant
R Ter Haar for the respondent
Cases referred to in the judgment:
Louis Mario Margueritte v The Secretary of State for the Home DepartmentUNK (CA, unreported, 19 July 1982).
R v The Secretary of State for the Home Department ex parte Amarjit Singh Sandhu CA, [1983] Imm AR 61.
Taj Mohd Swati v The Secretary of State for the Home Department [1986] Imm AR 88.
Deportation successful appeal against decision to initiate deportation proceedings whether appellant in consequence secured indefinite leave to remain in the United Kingdom.
Ordinarily resident for the purposes of registration as a British citizen whether there must be five years lawful residence. Immigration Act 1971, Sch. 1, App A (s. 5A of the British Nationality Act 1948).
Refusal of leave to enter assertion that the requirements of the 1971 Act were not observed whether an issue for the Court on judicial review evidence. Immigration Act 1971, Sch. 2, para. 6.
The applicant a citizen of Mauritius at one time enjoyed leave to remain in the United Kingdom as the spouse of an EEC worker. After he was deported, she remained in the United Kingdom. The Secretary of State initiated deportation proceedings against her as an overstayer. Her appeal against that decision was allowed by the Immigration Appeal Tribunal, following the Divisional Court Judgment in ex part Sandhu. After her appeal had been allowed that judgment was reversed by the Court of Appeal, which held that the spouse of an EEC worker had no right to remain in the United Kingdom after the deportation of the worker in question. The Secretary of State took no further proceedings against the applicant but when she left the United Kingdom and then sought to return, she was refused admission as a returning resident, she having it was maintained, no claim under the rules to settle in the United Kingdom.
On application for judicial review, a number of different issues were raised. It was submitted that the Secretary of State had taken no action to quash the decision of the Tribunal and that in consequence the applicant secured a right to remain in the United Kingdom. She had, in any event the qualification, on the facts, to be registered as a British citizen. She had not, it was asserted, been served with the proper notices when she was refused admission as a returning resident.
Held:
1. Her successful appeal against the decision to initiate deportation proceedings against her gave her no rights to remain permanently in the United Kingdom. The Tribunal had done no more than apply the law as it was then understood. It had in any event only found that she was not liable to be deported. That was quite different from giving her any right to remain indefinitely in the United Kingdom.
2. She had no claim to be registered as a British citizen. Ordinarily resident in the context of such an application meant lawfully ordinarily resident. Following the Court of Appeal judgment she had been for part of the material qualifying period, an overstayer. Margueritte followed.
3. Whether or not, on the facts, the proper procedures had been observed when she was refused admission to the United Kingdom was not a matter for the Court. She should pursue those issues of fact through the appellate authorities, Swati followed. The Court observed that there was in any event no evidence to support the assertions made in that regard.
Russell J: When leave was originally granted to move for judicial review in this case the grounds were very limited and they were supported by a very short affidavit sworn by the applicant in October 1984. As late as 30 October 1986 very substantial amendments were drafted to the grounds. No objection was taken on behalf of the respondent and the hearing of this application for judicial review has been based upon the amended grounds, of which there are now four, so there is some overlapping between one ground and another.
The background to the application is prolonged in point of time and somewhat complicated. The salient facts are that the applicant is a Commonwealth citizen, having been born in Mauritius in July 1946. She was admitted to the United Kingdom on 21 July 1973. Her permission to remain here was extended until 10 December 1973. There appears to have been a further extension until July 1974 when the applicant left the United Kingdom and journeyed to Germany. There, on 7 July 1974, she married a citizen of the Federal German Republic, a man called Reinhard Botta. She remained overseas until 8 August 1974 when she returned to the United Kingdom and was admitted for a period of one month. She stayed until 8 September 1975. In May 1977, and again in June 1977, the applicant returned to the United Kingdom and was admitted as a visitor. On 21 June 1977 the period was for six months, expiring in December 1977.
The applicant remained thereafter in the United Kingdom where she was joined by her husband. His activities brought him into conflict with the law and in September 1980 he was sentenced...
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