Secretary of state for the home department v Said Souhama Ken'aan
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 1990 |
| Date | 31 July 1990 |
| Court | Immigration Appeals Tribunal |
Immigration Appeals Tribunal
Professor D C Jackson (Vice-President) G W Farmer Esq (Vice-President), N Kumar Esq JP
D Wilmott for the appellant
Miss F Hadi for the respondent
Cases referred to in the determination:
R v Immigration Appeal Tribunal ex parte SubramaniamELR [1977] 1 QB 190: [1976] Imm AR 155.
Suthendran v Immigration Appeal TribunalELR [1977] AC 359 [1977] Imm AR 44.
R v Immigration Appeal Adjudicator ex parte Bhanji [1977] Imm AR 89.
Selo Wa-Selo v Secretary of State for the Home Department [1990] Imm AR 76.
Adolphus Lokko v Secretary of State for the Home Department [1990] Imm AR 111.
MensahUNK (unreported, 20 September 1976).
Sabri (2645) (unreported).
Deportation overstayer whether on the facts the Secretary of State had power in law to make a deportation order whether at the date of that decision the respondent had a pending appeal whether a pending appeal would make a decision by the Secretary of State to make a deportation order unlawful. Immigration Act 1971 ss. 3(3), 3(5)(a), 15(1) 33(4). Immigration Act 1988 s. 5(1): Variation of Leave Order, 1976 (as amended 1989): Immigration Appeals (Procedure) Rules 1984 rr. 4, 5.
Rights of appeal refusal of variation of leave failure of respondent to serve in time a notice of appeal whether Secretary of State had power to declare that an applicant had no right of appeal, that that right had been forfeited whether such a declaration was reviewable by the immigration appellate authorities. Immigration Act 1971 ss. 14(1), 33(4): Immigration Appeals (Procedure) Rules 1984 rr. 5(1), 6, 8(3), 11(l)(2).
The Secretary of State appealed against the determination of an adjudicator in which he had allowed the respondent's appeal against the intention to deport her as an overstayer. She had been refused a variation of leave as a student: the notice was properly sent, but she did not receive it. The Secretary of State had indicated that because she had not submitted a notice of appeal within the prescribed period she had forfeited[her]right of appeal.
When the case came before the adjudicator he concluded that the Secretary of State had no power to declare that an applicant had forfeited a right of appeal. He also concluded that whether or not the late appeal should proceed was a matter for an adjudicator: the procedure laid down in the rules had not been followed, no adjudicator had determined the preliminary issue whether or not the late appeal should go to a hearing on the merits of the substantive case. He accordingly held that the respondent before the Tribunal had an appeal pending and it followed that the Secretary of State had no power to make a deportation order. He allowed the appeal.
The Secretary of State appealed. On his behalf it was argued that under the Act the Secretary of State had authority to decide whether a person had a right of appeal. It was further argued, following the authorities, that at the date of decision the respondent had no appeal pending against the refusal to vary her leave to remain in the United Kingdom.
Held:
1. The Secretary of State had no power to declare that a person had no right of appeal or that any such rights had been forfeited. The fact that a notice of appeal, in certain cases, had to be lodged with the Secretary of State did not endow him with power to make such a declaration or to override or limit the rights of appeal embodied in the Act.
2. A decision to make a deportation order could be taken immediately after the expiry of limited leave: where an application for variation of leave had been made during the currency of earlier leave, leave was extended to a date 28 days after the date of refusal, by the Variation of Leave Order 1976.
3. Thus a decision to make a deportation order could be taken even while there was a pending appeal. Before the passing of the 1988 Act a pending appeal protected a person from the making of a deportation order, not from the decision to make the order, and it was the latter decision that had been appealable under s. 15(1) (unamended).
4. The 1988 Act however (in s. 5(1)) referred not to the power to make a decision to make a deportation order but to the power to make that order. In cases to which s. 5(1) applied, there would be no such lawful power if there were an appeal pending.
5. Following the authorities no right of appeal arose unless the notice of appeal were properly served during a period of existing leave.
6. On the facts the respondent did not appeal until after her earlier leave, as extended by the Variation of Leave Order, had expired.
7. It followed therefore that she had no pending appeal and the Secretary of State on the relevant date had power in law to take the decision he had taken.
Determination
The Secretary of State appeals against a decision of an adjudicator (Mr C O Richards OBE JP) allowing the appeal of Said Souhama Ken'aan against the decision to make a deportation order against her by virtue of section 3(5)(a) of the Immigration Act 1971. The case falls within the ambit of section 5(1) of the Immigration Act 1988 and the grounds of appeal are therefore restricted to asserting that there is in law no power to make the deportation order for the reasons stated in the notice of decision.
The adjudicator allowed the appeal on the basis that the respondent had a pending appeal against a refusal to vary her leave to remain in this country. Miss Hadi told us that this was the sole point on which she relied.
There is no dispute as to the relevant facts. The respondent appears to have arrived in this country on 29 October 1982 and was then admitted as a student. She last arrived in the United Kingdom on 18 May 1984 and was granted leave as a student ultimately until 7 July 1988. It appears that within that leave, the respondent applied for further leave to remain but this was refused on 14 October 1988. The notice of refusal was sent to the respondent's last known address but was not received by her.
On 6 December 1988 the Home Office wrote to the respondent, that letter (so far as relevant) reading:
On 8 June 1988, 11 June 1988, 14 September 1988 and 4 October 1988 you applied for further leave to remain in the United Kingdom for the purpose of appealing against your university examination results.
The application was refused with right of appeal on 14 October 1988. The notice of refusal was correctly served on your last known address but you failed to collect the package from the Post Office and you have not submitted an appeal against the decision within the permitted period. You have therefore forfeited your right of appeal against the decision.
Following receipt of that letter, the Brighton Law Centre wrote to the Immigration and Nationality Department on 13 December requesting that the appellant be granted leave to appeal against your decision out of time. There followed correspondence...
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