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
S Harrison for the Applicant; D Rose
for the Respondent
PANEL:
DYSON J
JUDGMENTBY-1:
DYSON J
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.
Application dismissed.
Wilson & Co; The Treasury
Solicitor