R v The Secretary of State for the Home Department, ex parte Yurteri

 

QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)

 

CO/138/95, (Transcript: John Larking)

 

HEARING-DATES: 19 January 1995

19 January 1995

 

COUNSEL:

S Harrison for the Applicant; D Rose for the Respondent

 

PANEL: DYSON J

 

JUDGMENTBY-1: DYSON J

 

JUDGMENT-1:

DYSON J: This is an application for leave to apply for judicial review to the Secretary of State for the Home Department of 8 December 1994, whereby he refused to revoke a Deportation Order that he had signed in respect of this applicant on 2 September 1985.

 

The facts can be shortly stated. The applicant is a national of the Turkish republic of Northern Cyprus. He first entered the United Kingdom in November 1981 as a visitor. He was given leave to enter for one month and within due time he applied for and was granted leave to remain as a student for three months. At the expiry of that leave on 18 February 1982 he did not return to Northern Cyprus. He remained within the United Kingdom and became an overstayer.

 

The Secretary of State made a decision to deport the applicant in 1983. He served notice of that decision on the file on 11 November 1983. The Deportation Order itself was, as I have already said, signed on 2 September 1985 and this too was served on the file. This procedure of service on the file was made pursuant to reg 3(4) of the Immigration Appeals (Notice) Regulations 1984. The reason why this course was adopted was because the applicant had failed to maintain contact with the Home Office and, despite their enquiries, the respondents were unable to trace him.

 

I have been given some information this morning as to the attempts made by the Immigration Authorities to trace the applicant; at addresses of relations and places where he was thought to work. It seems that in addition to searching the documents on the file, service was also effected at various addresses. This application, however, has been made and I shall treat it as if the applicant did not, in fact, receive the notice of the decision to deport, or, in fact, the Deportation Order itself.

 

The significance of this is that the applicant would have had 14 days from the date when he received notice of the decision to deport to appeal that decision. Once the Deportation Order itself was made there was no longer a right of appeal. Hence this application.

 

The existence and the whereabouts of the applicant was unknown to the respondents until 15 April 1994 when he applied, through his then representative, for indefinite leave to remain. This was on the basis of his long residency in the United Kingdom, his strong connections with the United Kingdom in the shape of his employment, and the ownership of property here, as well as emotional ties in the form of friendships. He is unmarried, apparently has no long-standing partner and has no children in the United Kingdom.

 

On 1 August 1994 he was interviewed by an Immigration Officer. That was the first occasion, when, according to the applicant, he was informed that the decision had been made to deport him and that a Deportation Order had been signed. On 3 August the applicant's solicitors wrote to the Secretary of State asking that the Deportation Order be revoked. In their letter they referred to the fact that the practice of serving the documentation on the file had been criticised because it resulted in persons on whom Deportation Orders have been served, losing their right of appeal. They further made the point, as is this case, that the current practice is that a notice of a decision to deport is only served when the whereabouts of the person or persons effected is known.

 

Reference was made in that letter to the recognition by the Home Office that the procedure under the regulations that were invoked in the present case were unfair and had been reflected in practice. On 8 December 1994 the Secretary of State stated that he had carefully considered the case in light of the representations made as well as those of the previous representative and his interview. He was not, however, persuaded that deportation was not the correct course of action and was satisfied that the order signed in 1985 was valid. Accordingly, he rejected the question that the Deportation Order be revoked.

 

In support of the application, Miss Harrison makes two submissions. First, that the recourse to the 1984 regulations was unlawful because it carried with it the loss of the right of appeal and, accordingly, was unfair and contrary to the rules of natural justice. Alternatively, she submitted that, having regard to the length of time that the applicant has been in the United Kingdom and the fact that it is now recognised by the Secretary of State that the procedures permitted by those regulations are unfair, that it was unreasonable in the Wednesbury sense to refuse to revoke the Deportation Order.

 

The points are short ones. In support of the first point reliance is placed upon what is said in an affidavit of Mr McQueen from the Home Office Immigration and Nationality Department. In an affidavit in other proceedings, sworn on 11 December 1989, at paragraph three he referred to the fact that reliance on the procedure of service on the file effectively denies individuals the right of appeal and characterises those procedures as being "neither fair nor particularly effective".

 

In answer to that submission, Miss Rose points out that there is binding Court of Appeal authority to the effect that the regulations, which relates to the power to serve notice of intention to deport and Deportation Orders themselves, are intra vires. I have been referred to Rhemtualla v Immigration Appeal Tribunal [1979-83] Imm AR 168, which in turn refers to an unreported decision of the Court of Appeal in Makhan Singh's case in which Bridge LJ said, in relation to the Predecessor Rules of the 1984 regulations:

 

"I am perfectly satisfied that the provision in Regulation 3(4) of the 1972 Regulations is intra vires because it is an absurdity to suppose that Parliament attempted to compel the Secretary of State to make a regulation requiring written notice to be served in a situation where in practicable terms it is not possible to serve it and it is perfectly legitimate and proper in my judgment for the regulations to spell out, as they do, an exception to the obligation to serve notice in a case where as is here notice cannot be served because the Secretary of State does not know the whereabouts of the person upon whom notice would otherwise be required to be served".

 

The time for appealing notice of a decision to deport is 14 days. It must follow that in almost every, if not every case in which the practice of serving on the file is adopted, the immigrant concerned will lose his right of appeal. That is implicit in the power given by the regulations.

 

Miss Harrison points out that in the Rhemtualla case the issue was not one of natural justice. The question was simply whether valid service had been effected. It seems to me, however, that it is an inevitable consequence of the decision in Rhemtualla and Makhan Singh and I interpolate that counsel have been unable to obtain a transcript of Makhan Singh, so I do not know what the issue was in that case, that unfairness in the shape of an inevitable loss of the right of appeal is implicit in the regulations themselves. Those regulations have been stated to be valid and intra vires. It seems to me that the challenge sought to be made under the first head carries with it an attempt to overturn the validity of the regulations themselves. That is not open to me in the light of the decisions and, accordingly, I am compelled to reject the first argument.

 

As far as the second argument is concerned, I see no basis upon which it can be properly argued as Wednesbury unreasonable. The Secretary of State stated in his letter that he had taken into account all the representations made. These will have included his knowledge of the length of time of the applicant within the United Kingdom and the nature of his ties and so on. I find it impossible to come to a conclusion that there was perversity in the decision reached. For all these reasons I conclude that this application must be dismissed.

 

DISPOSITION:

Application dismissed.

 

SOLICITORS:

Wilson & Co; The Treasury Solicitor