Wilson Humberto Martinez-Tobon v The Immigration Appeal Tribunal
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE MANN,LORD JUSTICE WOOLF |
| Judgment Date | 12 February 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0212-11 |
| Docket Number | 88/0192 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 February 1988 |
[1988] EWCA Civ J0212-11
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE OTTON)
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Woolf
and
Lord Justice Mann
88/0192
CO No.892/1986
MR. ALPAR RIZA (instructed by Messrs. Karim Laxman, Solicitors, London, WC1V 6QA) appeared on behalf of the Appellant.
MR. N. PLEMING (instructed by The Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent).
I invite Lord Justice Mann to give the first
judgment on this appeal.
There is before the court an appeal against a decision of Mr. Justice Otton given on 24th June 1987; on that day he refused an application for judicial review of a decision of the Immigration Appeal Tribunal dated 2nd December 1985. Leave to move that application had been given by myself on 9th October 1986.
By its decision the tribunal dismissed an application by the appellant against a decision of the Secretary of State for the Home Department making a deportation order against the appellant. That decision was taken on 24th May 1985; to it I shall refer.
The appellant is a citizen of Colombia, and was born on 4th April 1942; he is therefore now some 45 years and 10 months of age. He first arrived in the United Kingdom on 22nd January 1974. His immigration and relevant personal history is as follows. On 22nd January 1974 he was given leave to enter the United Kingdom for six months as a visitor. He obtained a short extension, and left the Kingdom on 16th September 1974. Four days later he returned, with the benefit of a work permit and was granted leave to enter for twelve months. Successive extensions of that leave were granted, and he was joined by his wife and twindaughters. On 28th July 1978 the appellant, his wife and twin daughters were granted indefinite leave to remain in the Kingdom. Subsequently the appellant was joined by his three sons, who were granted indefinite leave from 5th January 1979.
Until 13th June 1984 the appellant was an arduous man of good character; he worked as a waiter, barman and washer in the hotel and catering trade. On 13th June 1984, however, at the Snaresbrook Crown Court the appellant was convicted of having knowingly been concerned in the evasion of the prohibition of the importation of a controlled drug and was sentenced to four years in prison. The court did not make a recommendation for deportation.
The appellant appealed against his sentence to the Court of Appeal, Criminal Division; his appeal is reported in (1984) 6 Criminal Appeal Reports (Sentencing) 365. The appeal failed, but it is convenient to refer to the report at page 365 for the facts of the case.
At that page the Lord Chief Justice, who delivered the judgment of the court, said:
"The facts of the case were these. On September 22 last year at about 10.30 in the morning the appellant, who is a citizen of Colombia, was given, and he accepted, a letter which had arrived in the post. He was given the letter by the secretary at Carriers' Restaurant, where he worked as a glass washer. The letter came from Colombia and was addressed to the appellant at the restaurant.
"Unknown to the appellant it had been intercepted by customs officials and it had been found to have contained 23.7 grammes of a preparation containing cocaine hydrochloride It was then handed back to the postman and a watch was kept on the destination of the letter.
"The customs officers, who had been observing the appellant that morning, saw him looking for a letter in the postbox, and later the appellant on request produced that letter for the customs officers from a hidden place in the washing up room in the restaurant where he was working. He said to the customs officers that he had received the letter because it was in his name but he had not known what it contained or who the sender of it was. The cocaine in the letter had a street value of just over £3,000."
As I have said, the Crown Court at Snaresbrook did not recommend deportation, but the absence of such a recommendation is no bar to the Secretary of State's deciding to make a deportation order. He so decided on 24th May 1985.
The terms of that decision, as communicated to the appellant, were as follows:
"On 13 June 1984, at Snaresbrook Crown Court, you were convicted of being knowingly concerned in the evasion of the prohibition on the importation of a controlled drug (cocaine). In view of this conviction the Secretary of State deems it to be conducive to the public good to make a deportation order against you."
The enabling power for that decision is section 3 (5) (b) of the Immigration Act 1971 which provides, so far as is material, as follows:
"A person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good."
Against that decision of the Secretary of State the appellant appealed to the Immigration Appeal Tribunal. His right so to do derives from section 15 (1) (a) and 7 (a) of the 1971 Act. The appeal was heard on 15th November 1985 and the determination of the tribunal was notified to the appellant on 2nd December 1985. That is the decision impugned in the judicial review proceedings.
It is unfortunate that it is something like 2 3/4 years after the decision was made by the Secretary of State that the matter comes before the Court of Appeal, bearing in mind that the decision affects the integrity of a family of seven persons. It is now sought to set aside the order of Mr. Justice Otton and to obtain an order of certiotari to quash the decision of the tribunal, and an order of mandamus requiring a reconsideration of the appeal to the tribunal.
The relevant statutory provision is section 19 of the Act of 1971. I...
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