Upper Tribunal (Immigration and asylum chamber), 2016-07-11, DA/02156/2013
| Jurisdiction | UK Non-devolved |
| Date | 11 July 2016 |
| Published date | 13 June 2017 |
| Hearing Date | 08 April 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/02156/2013 |
Appeal Number: DA/02156/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/02156/2013
THE IMMIGRATION ACTS
|
Heard at Field House |
Determination Promulgated |
|
on 8 April 2016 |
on 11 July 2016 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
MUSLUM UGURLU
(anonymity direction NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Miss R Akther instructed by Duncan Lewis & Co Solicitors.
For the Respondent: Mr Duffy Senior Home Office Presenting Officer.
DECISION AND REASONS
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On the 12 February 2016 the Upper Tribunal published its decision in relation to the making of an error of law by the First-tier Tribunal, a full copy of which appears at Annex A to this decision.
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For the purposes of this heading the relevant part of the error of law finding is as follows:
The validity of the Deportation Order
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This is not a matter upon which submissions were invited at the hearing before the Upper Tribunal or upon which a grounds of appeal seeks to rely but has arisen as a result of a ‘Robinson’ obvious point.
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It is not disputed that the appellant’s correct name is Muslum Ugurlu which has been used by the respondent in correspondence relating to his situation. It is not disputed that Muslum Ugurlu was convicted on his guilty plea of drug related offences for which he was sentenced to seven years imprisonment. It is not disputed that Muslum Ugurlu received a notice of intention to make a deportation order which he unsuccessfully appealed. It is not disputed that the Secretary of State was lawfully entitled to make a deportation order against Muslum Ugurlu when he became appeal right exhausted.
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At paragraph 6 of the Panel determination the Panel note:
6. On 16 April 2003, a letter was sent to the Respondent by the Appellant’s solicitors, O’Keeffes, requesting revocation of the Deportation Order (F1 – Resp). There is some confusion surrounding this inasmuch as the only document entitled Deportation Order in the papers is the one dated 23rd December 2003 (H1 – Resp) which is not properly phrased inasmuch as it refers not only to the Appellant but to someone with a different name. However, it has not been disputed that there was a valid Deportation Order made, and, on 1st August 2005, O’Keeffes wrote again stating that the Appellant “is presently the subject of a Deportation Order”, and requesting that he be allowed to remain.
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If there is no valid deportation order it matters not what the solicitors have said in correspondence for they may have mistakenly believed a valid order had been made. It has not been shown that any such belief is sufficient to make an invalid order valid.
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Even though this is not an issues discussed previously it does not prevent the Upper Tribunal raising an issue of jurisdiction of its own motion at this late stage.
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The Panel were arguably incorrect when making the observation that the Order of the 23 December 2033 mentioned the appellant and another person. The exact terms of that Order are as follows:
HOME OFFICE
Home Office Reference U42389
Home Office Immigration and Nationality Directorate
IMMIGRATION ACTS 1971 AND 1988
IMMIGRATION AND ASYLUM ACY 1999
DEPORTATION ORDER
MUSLIM UGURLU
Whereas the Secretary of State deems it to be conducive to the public good to deport from the United Kingdom MUSLIM UGURLU, a person who does not have the right of abode within the meaning of the Immigration Act 1971, and whereas the said MUSLIM UGURLU is, accordingly, liable to deportation by virtue of Section 3(5)(a) of the said Act:
Now therefore in pursuance of Section 5(1) of the said Act, the Secretary of State, by this order, requires the said STEFIELD AZARIAH KING to leave and prohibits him from entering the United Kingdom so long as this order is in force.
And in pursuance of paragraph 2(3) of Schedule 3 to the said Act, the Secretary of State hereby authorises said MUSLIM UGURLU to be detained until he is removed from the United Kingdom.
Signed.
Minister of State
For and on behalf of the Secretary of State for the Home Department
Date: 23/12/03
Home Office
Queen Anne’s Gate
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There are two errors in the Deportation Order. The first of which is that the appellants name is not Muslim Ugurlu. It is Muslum Ugurlu. The second is that there appears no connection between Stefield Azariah King and the appellant. The operative part of the document contains the order of the Secretary of State for Sefield Azariah King to leave and prohibits him from entering the United Kingdom so long as this order is in force. It has not been shown there is an alternative order in force which correctly names the appellant or that an order in these terms, in the name of another, has any lawful effect upon the appellant.
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The earlier 2002 appeal was against the decision to make a deportation order in the pre UK Borders Act 2007 regime and the refusal of the appeal against that decision remains valid. Unless a valid and lawful deportation order is signed the appellant cannot be removed under the relevant legal provisions and if there is no valid order there is nothing to revoke and so no lawful immigration decision against which the appellant can appeal.
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If this is the case the Panel erred in assuming there was a valid order and a decision that conferred a right of appeal against a refusal to revoke. If the Order of 23/12/2013 is invalid there is nothing to revoke. The determination must be set aside on this basis and a lawful Deportation Order awaited if this is the case. If made under the automatic deportation provisions this will generate a right of appeal, unless certified, in relation to which further submissions and up to date evidence should be requested before any such order is made.
Discussion
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It was accepted by all parties that the deportation order is defective in that the appellant’s first name is Muslum and not Muslim and that there is no record of any connection between him and the individual known as Stefield Azariah King.
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The misspelling of Muslum is clearly a typographical error and one that in itself will arguably have no material impact upon the validity of the deportation decision. The inclusion of the name King is, arguably, a more serious issue.
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Mr Duffy provided a useful insight into the preparation of a deportation order which is based upon data recorded on the respondent’s case management system. When a case worker is tasked to prepare a deportation order the names recorded on the system are automatically inserted into the draft document. In this case it is suggested that the name Stefield Azariah King must have been part of the data entered by the respondent yet there is no evidence that this is a name used by the appellant, as an alias or otherwise.
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Mr Duffy submitted that even though the operative part of the order was clearly defective the lack of challenge in the past by the appellant, or the raising of this issue, amounted to their acquiescence of the defect and acceptance that the deportation order applied to the appellant and should therefore be treated as a valid order.
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In R (on the application of Nirula) v FTT (IAC) and SSHD [2012] EWCA Civ 1436 the Court of Appeal said that the Tribunal was entitled to take a point on its jurisdiction of its own motion. Indeed the Tribunal was well advised to air any doubts it had about its jurisdiction and invite submissions on that question and then decide it.
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In Virk v Secretary of State for the Home Department [2013] EWCA Civ 652 it was held that although the SSHD had failed to raise before the First-tier Tribunal the issue of that Tribunal's jurisdiction to entertain a family's application for leave to remain, the Upper Tribunal was entitled to dismiss the family's subsequent appeal against the First-tier Tribunal's decision on the basis that the First-tier Tribunal had not had jurisdiction, notwithstanding that the point had not been raised below. In Virk it was said "Statutory jurisdiction cannot be conferred by waiver or agreement; or by the failure of the parties or the tribunal to be alive to the point". It was also said however that if the issue had not previously been raised then fairness required that the parties should be given the opportunity to...
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