Sanusi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 16 December 1998 |
| Date | 16 December 1998 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Evans, Ward, Brooke LJJ
The Applicant in person
I Burnett QC and Miss L Giovannetti for the respondent
Cases referred to in the judgments:
Hanlon v The Law SocietyELRUNK [1981] 1 AC 124: [1981] 1 All ER 763.
Mamode Peerbocus v Secretary of State for the Home Department [1987] Imm AR 331.
R v Secretary of State for the Home Department ex parte Patrick Asumda [1993] Imm AR 601.
in re Baba Sheriff Samateh (unreported, CA, 28 March 1995).
R v Secretary of State for the Home Department ex parte Abukari Musah [1995] Imm AR 236.
Secretary of State for the Home Department v Rehmat Khan and ors [1995] Imm AR 348.
Anna Vladic v Secretary of State for the Home Department [1998] Imm AR 542.
Asylum deportation deportation order signed before refusal of asylum application given to applicant whether lawful. Immigration Act 1971 ss. 5(1), 5(5), sch. 3 paras. 1(1), 2(3); Asylum and Immigration Appeals Act 1993 s. 6.
Renewed application for judicial review by a citizen of Nigeria of the decision of the Secretary of State to sign a deportation order against her. The applicant had a complicated immigration history which is set out in the judgment. She had applied for asylum, which was refused by the Secretary of State. The deportation order was signed before that refusal was made known to her. Its legality, in the circumstances, was challenged.
Held:
1. It was necessary to distinguish between the decision to make a deportation order and the signing of the order.
2. The deportation order required the person concerned to leave the United Kingdom, which was incompatible with the provisions of section 6 of the 1993 Act.
3. It was accordingly unlawful for a deportation order to be signed where a person had an application for asylum on which no decision had been communicated to them.
Brooke LJ: This is an application by Ganiyatu Abake Sanusi for judicial review of a deportation order made by the Secretary of State on 20 November 1996. Carnwath J refused leave to apply for judicial review, but on 22 May 1998 another division of this court granted her leave and retained the application in this court since it gives rise to a point of law of general importance on which it is desirable that this court should give a definitive ruling at an early date.
The hearing of the application took an unusual form. We had the benefit of receiving very helpful skeleton arguments from leading counsel on both sides. but legal aid was withdrawn from Miss Sanusi about two days before the hearing. At the hearing she appeared in person and we permitted Mr Harding, an American lawyer, to make brief submissions of a procedural nature as to what we should do in the interests of fairness. Although Miss Sanusi had been in detention since May, she wished to appeal against the withdrawal of her legal aid certificate and to have an adjournment for this purpose. In the event, we decided to hear Mr Burnett QC without ruling on Miss Sanusi's application for the time being and to review the situation once we had heard Mr Burnett.
The point at issue can be stated quite shortly. At the time the order was made Miss Sanusi had made an application for asylum, and she was not notified that her application had been refused until 12 February 1997, two-and-a-half months after the deportation order was signed. She argues that the procedure adopted by the Home Office is unlawful. This is because the deportation order requires her to leave the United Kingdom, and section 6 of the Asylum and Immigration Appeals Act 1993 (the 1993 Act) prevents such a requirement being made in the case of an asylum seeker between the time when she claims asylum and the time when the Secretary of State gives her notice of the decision on her claim.
The facts can be simply stated. Miss Sanusi is now 20 years old. She came to this country seven and a half years ago and was given six months leave to enter as a visitor. Thereafter she made a number of applications and representations to the Home Office, but she was never granted any further leave to remain here, and on 13 February 1995 the latest of these applications was refused and she was served with notice of intention to deport her as an overstayer. She exercised her right of appeal to an adjudicator and while her appeal was pending she made an application for asylum, based on her father's political activities in Nigeria in support of Chief Abiola. Her appeal against the decision to deport her was dismissed on 3 July 1995, but the adjudicator recommended that the Home Office should look at the case again before taking further action. She...
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...is to be removed to be accompanied by an escort consisting of one or more persons specified in the directions." 19 In Sanusi v Secretary of State for the Home Department [1999] Imm AR 334, Brooke LJ (with whom Evans and Ward LJJ agreed) said this at page 339: "There is in my judgment, no am......
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