The Queen Secretary of State for The Home Department and Another ex parte Chye-poh Chew
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 07 June 2000 |
| Judgment citation (vLex) | [2000] EWHC J0607-7 |
| Docket Number | CO/3743/98; CO/4984/98 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 June 2000 |
[2000] EWHC J0607-7
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWNOFFICELIST
Royal Courts of Justice
The Strand
London
Mr Justice Sullivan
CO/3743/98; CO/4984/98
MR RICK SCANNELL (instructed by Messrs Brion & Co, London WC1A 2DA) appeared on behalf of THE APPLICANT POPATIA
MISS FRANCES WEBBER (instructed by Messrs Pullig & Co, London EC4V 6AZ) appeared on behalf of THE APPLICANT CHEW
MR ANGUS McCULLOUGH (instructed by the Treasury Solicitor) appeared on behalf of THE RESPONDENT
Wednesday 7 June2000
The applicants in both of these cases are "overstayers" (ie persons who have remained in the United Kingdom unlawfully after the expiration of leave to remain).
The Secretary of State made a deportation order in respect of each of the applicants as long ago as 1985. In 1998 both applicants invited the Secretary of State to revoke those deportation orders. The Secretary of State refused to do so and said that he would proceed with deportation. Those decisions are the subject of these proceedings.
To set the scene it is helpful to set a brief chronology of events in each case.
Mr Chew
Mr Chew first came to the United Kingdom on 16 September 1980 and was given 12 months' leave to enter as a student. He went home for a short visit, probably at the end of July 1981, and returned to the United Kingdom on 27 September 1981, when again he was given leave to enter for 12 months as a student.
He was not a diligent student and on 20 October 1983 he was refused further leave to remain. An appeal against that refusal was dismissed by an adjudicator on 6 April 1984 and on 17 May 1984 he was told, presumably by letter, to leave the United Kingdom and advised that he would be liable to deportation if did not.
What happened next is explained in a letter dated 21 August 1987 to Mr Chew's Member of Parliament from Mr O'Brien, the Parliamentary Under Secretary of State at the Home Office:
"Mr Chew. a Malaysian national, arrived in the United Kingdom on 27 September 1981…. On 17 May 1984, Mr Chew was directed to leave the United Kingdom immediately and advised of his liability to deportation should he fail to do so.
Mr Chew did not embark as directed. In the absence of any known compassionate factors, he was served on 4 February 1985 with notice of the decision in principle to deport him as an over-stayer. Notice of that decision was returned by the Post Office to the Home Office on 6 February 1985 marked 'gone away'. You will appreciate that the onus is on the applicant to notify the Home Office of any change in circumstances. However, Mr Chew failed to notify any such change. Attempts were made to locate Mr Chew by way of letters to his two previous residential addresses [which are set out]….
However, these enquiries proved fruitless…. As there was no evidence of Mr Chew having embarked voluntarily, a deportation order was signed against him on 11 December 1985. However, as Mr Chew's whereabouts were unknown, the deportation order could not be served on him.
Nothing further was heard from or about Mr Chew until 2 March 1995 when Zelin & Zelin Solicitors requested leave to remain on an exceptional basis by virtue of his length of residence in the United Kingdom. On 24 April 1995, he was served with the deportation order and was interviewed by immigration officers…."
Certain details of the interview are set out and the letter continues:
"Consideration was given to the circumstances but they were not considered to be so compelling as to warrant discontinuing with deportation action against him…. Mr Chew's application for leave to remain on the basis of his length of residence here was refused on 7 July 1995. That decision carried no right of appeal. However, Mr Chew had the right of appeal against the proposed destination of the order and he exercised that right on 24 July 1995. That appeal was dismissed by an adjudicator on 5 June 1997 and an appeal to the Tribunal was dismissed on 30 September 1998."
In September 1998 further representations were made by Mr Chew's solicitors. Those representations placed particular reliance upon the fact that as from 2 June 1986 there had been a change in departmental practice as to the making of deportation orders relating to untraced overstayers. The change in practice was explained in DP 5/86 (to which I will return). The solicitors put it in this way:
"In 1995, relying upon the amnesty for unlawful residents with more than 14 years in the UK, he applied for indefinite leave. He then discovered that in 1985 the Home Office had made a secret deportation order against him after serving notice upon him in the wrong name and to the wrong address. The purpose of the secret deportation order procedure was to deny rights of appeal and the Home Office abandoned it in 1986 as unfair!"
In the light of that alleged unfairness and other detailed matters, including the fact that Mr Chew first arrived in the United Kingdom in 1980, not 1981, the Secretary of State was invited to revoke the deportation order. The Secretary of State declined to do so in a letter dated 23 October 1998:
"With regard to Mr Chew's claimed date of entry of 16 September 1980, I would firstly stress that no evidence of such entry has been submitted. Furthermore, if Mr Chew had indeed been in the United Kingdom for the period claimed it is nonetheless clear that he must have embarked at some point before returning on 27 September 1981 since on that date Mr Chew was landed and granted fresh leave to enter for twelve months as a student… [The] assertion that Mr Chew would qualify for indefinite leave to remain under the Long Residence Concession if one takes his arrival date as being 16 September 1980 rather than 27 September 1981 is incorrect. Had Mr Chew indeed arrived in September 1980 and subsequently spent less than six months absence from the United Kingdom before his return on 27 September 1981, he would still fail to benefit from the terms of the Concession. He was lawfully served on 4 February 1985 with notice of intention to deport him and thus had spent less than five years from his arrival to the commencement of enforcement action against him, and not the requisite fourteen….
….
The issue of the internal policy document known as DP 5/86 is not relevant to this type of case. That policy document essentially referred to the now abandoned practice of serving a notice of intention to deport solely on file, without sending a copy to the individual's residential address. Such a practice clearly denied the individual the opportunity to submit an appeal and has rightly been discontinued. This is not the case with Mr Chew. In his case, a notice of intention to deport was validly served to his last known address, no appeal was subsequently lodged and, in the absence of any evidence to suggest that he had embarked, a deportation order was obtained. In fact, this same procedure is still employed today and is both perfectly lawful and perfectly fair….
I have carefully reviewed that case in light of all the known circumstances but remain satisfied that Mr Chew's deportation is the correct course of action…. Consequently, I am not prepared to revoke the deportation order against Mr Chew nor allow him to remain in the United Kingdom on an exceptional basis."
There were further representation which led to a letter from the Immigration Service Headquarters dated 2 December 1998 which confirmed that the Secretary of State was not prepared to revoke the deportation order. The letter said that when the application for long residence was refused on 7 July 1995:
"Mr Chew had spent 20 years outside the United Kingdom as opposed to 13 years 6 months in this country."
The decision explained in these two letters is the subject of Mr Chew's application for judicial review.
Mr Popatia
Mr Popatia came to the United Kingdom from India on 31 March 1981 and was initially admitted as a visitor for seven days. Extensions were granted, but they expired on 12 June 1982 when he was due to leave for Belgium to visit a sick friend. He did not embark for Belgium.
What happened next is explained in a witness statement provided by Mr Grey, a Senior Executive Officer employed in the Immigration Service Enforcement Directorate of the Home Office and Head of the Directorate's Policy Unit. He says this in part:
"In his dealings with the Immigration and Nationality Directorate …. Mr Popatia [had given] his address as 31 Stratford Road, Thornton Heath, Surrey…. In August 1982, checks of Home Office records showed no trace of Mr Popatia having embarked and the case was therefore referred to the police for further enquiries to be made. These enquiries showed that Mr Popatia was not living at 31 Stratford Road but suggested he might be found at 86 Barrow Road, SW16. Further enquiries by the Immigration Service in February 1983 revealed that Mr Popatia had lived at the latter address but no longer did so."
On 16 February 1983 an immigration officer had visited 86 Barrow Road. The occupants were a Mr and Mrs Ramji. Only Mrs Ramji was at home. She claimed not to know the whereabouts of Mr Popatia, but admitted that she was his cousin.
Mr Grey's witness statement continues:
22. "In May 1985, it was decided to make a deportation order against Mr Popatia as an overstayer. Notice of that decision was served on file in June 1985 in accordance with the practice at that time. At the same time, a copy of the decision was also sent to Mr Popatia's last known address, 86 Barrow Road, London, SW16. No response was received...
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