Re Menn's Applications for a Judicial Review and Another (Applicant v Secretary of State for the Home Department (Respondent
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LEGGATT,SIR ROGER ORMROD,LORD JUSTICE NEILL |
| Judgment Date | 20 December 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J1220-14 |
| Date | 20 December 1991 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/1271 FC3 91/6231/D |
[1991] EWCA Civ J1220-14
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
(Mr. Justice Kennedy)
Royal Courts of Justice,
Lord Justice Neill
Lord Justice Leggatt
and
Sir Roger Ormrod
91/1271
FC3 91/6230/D
FC3 91/6231/D
MR. A. RIZA QC (instructed by Messrs. Pascalides, Pillai & Jones, London, WC1) appeared on behalf of the Applicant (Applicant).
MISS A. FOSTER (instructed by The Treasury Solicitor) appeared on behalf of the Respondent (Respondent).
The applicant, one of whose names is Paul Menn, renews his application for leave to move for judicial review following refusal of such an application by Kennedy J on 31st October 1991. The review sought was to challenge the intended removal of the applicant from the United Kingdom under a deportation order which he submits is ultra vires.
The applicant is now 28 years old, having been born in Nigeria on 10th October 1963. In 1970 his father was registered as a citizen of the United Kingdom and Colonies, and on 12th October 1976 the applicant was given indefinite leave to enter in order to join his father. Between 1980 and 1984 he was convicted in this country of various minor offences. When on 16th January 1985 he sought leave to enter as a returning resident at a time when there was a warrant for his arrest outstanding for obtaining goods by deception he was given notice to submit to further examination. On 10th January 1986 the applicant was convicted at Southwark Crown Court for conspiracy to handle stolen goods and sentenced to two years' imprisonment. On 20th February 1986 the applicant was refused leave to enter the United Kingdom. But on 20th May 1986 he married, and later that year he went back to Nigeria. In 1987 the applicant returned to the United Kingdom, and in due course applied to be registered as a British Citizen. Before that application had been dealt with, the applicant was arrested in February 1988 for possession of heroin with intent to supply. On 10th July 1988 the Immigration Act 1988 came into force. On 14th October 1988 the applicant was convicted of the offence for which he had been arrested and sentenced to five years' imprisonment.
On 28th July 1989 the applicant was served with Notice of Decision to make a deportation order against which he appealed to the Immigration Appeal Tribunal, but on 18th April 1990 that appeal was dismissed. On 7th November 1990 the deportation order was signed, and in June of the following year his application for British citizenship was refused. No doubt because his earliest date of release was 29th October 1991, the applicant attempted to prevent the deportation order from taking effect by applying for the leave to move for judicial review which was refused by Kennedy J. He does not challenge the grounds on which the deportation order was made, if there was power to make it.
The applicant now argues that—
(1) In relation to children of Commonwealth citizens settled here on 1st January 1973 who were born before the Immigration Act 1988 came into force on 1st August 1988, the protection afforded by section 1(5) of the Immigration Act 1971 was preserved by section 16 of the Interpretation Act 1978; and
(2) The nature and extent of that protection was such as to give those children immunity from deportation under section 3(5)(b) of the 1971 Act. Remarking that if the applicant's submissions about the effect of the repeal of section 1(5) of the 1971 Act were right, the whole purpose of the repeal of that subsection would be to defeat, the judge held that the applicant could not take advantage of the provisions of section 16 of the 1978 Act to diminish the effect of section 1 of the 1988 Act.
The first relevant statutory provision relating to children was contained in the Commonwealth Immigrants Act 1962 section 2. After referring in subsection (1) to refusal of admission and conditional admission of any Commonwealth citizen, subsection (2) provided as follows:
"(2) The power to refuse admission or admit subject to conditions under this section shall not be exercised, except as provided by subsection (5), in the case of any person who satisfies an immigration officer that he or she—
(a) is ordinarily resident in the United Kingdom or was so resident at any time within the past two years; or
(b) is the wife, or a child under sixteen years of age, of a Commonwealth citizen who is resident in the United Kingdom or of a Commonwealth citizen (not being a person who is on that occasion refused admission into the United Kingdom) with whom she or he enters or seeks to enter the United Kingdom."
The Immigration Appeals Act 1969 section 16 gave to the Secretary of State power to deport Commonwealth citizens for breach of conditions of admission. On 1st January 1973 the 1971 Act was brought into force. So far as material it provided by section 1 that—
"(4) The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision or admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom.
(5) The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed."
Section 3(5) (as amended) provided that "(a) a person who is not [a British citizen] shall be liable to deportation from the United Kingdom—…. (b) if the Secretary of State deems his deportation to be conducive to the public good….". The only other provisions to which for present purposes it is necessary to refer are subsections (1) and (4) of section 5 of the 1971 Act:
"(1) Where a person is under section 3( 5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force….
"(4) For purposes of deportation the following shall be those who are regarded as belonging to...
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