Hukam Said v. Immigration Appeal Tribunal
| Publisher | United Kingdom: Court of Appeal (England and Wales) |
| Author | Court of Appeal (Civil Division) |
| Publication Date | 2 March 1989 |
| Citation / Document Symbol | [1989] Imm AR 372 |
| Cite as | Hukam Said v. Immigration Appeal Tribunal, [1989] Imm AR 372, United Kingdom: Court of Appeal (England and Wales), 2 March 1989, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b68c0.html [accessed 3 June 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
Hukam Said v Immigration Appeal Tribunal
Court of Appeal (Civil Division)
[1989] Imm AR 372
Hearing Date: 2 March 1989
2 March 1989
Index Terms:
Deportation -- conducive to the public good -- conviction as supplier of heroin -- whether Secretary of State entitled to ground decision to deport solely on the criminal conviction -- whether the phrase ". . . grounds in the light of all the relevant information . . ." in paragraph 157 of HC 169 made it unfair to deport solely on the basis of the conviction -- the weight the Secretary of State and the appellate authorities were obliged to give to family circumstances. Immigration Act 1971 ss 3(5)(b), 15(1)(a), 15(7), 19(1): HC 169 paras 154-159.
Judicial Review -- whether the Court will substitute its own discretion for that of the Secretary of State or the immigration appellate authorities.
Held:
Appeal from McCullough J. The appellant was a citizen of Pakistan who had been granted indefinite leave to remain in the United Kingdom after marriage. He was subsequently convicted of the possession of cannabis and of conspiracy to supply heroin, and sentenced to five years imprisonment. The Crown Court appears not to have recommended deportation. The Secretary of State however decided to initiate deportation proceedings pursuant to s 3(5)(b) of the 1971 Act. An appeal was dismissed by the Immigration Appeal Tribunal and judicial review refused by McCullough J. Before the Court of Appeal it was argued that on the true construction of paragraph 157 of HC 169 it was unreasonable and unfair for the Secretary of State to ground a decision to deport solely on the basis of a person's criminal convictions. Relying on R v Nazari it was also argued that both the Secretary of State and the Tribunal had erred in failing to give proper weight to the impact of deportation on the appellant's family. Held: 1. As a matter of fact, in the light of the evidence, neither the Secretary of State nor the Tribunal had failed to give weight to the circumstances of the appellant's family. In any event R v Nazari gave guidelines to the Courts in their consideration of their making a recommendation that a defendant be deported: it did not purport to give guidance to the Secretary of State on how he should exercise his discretion. 2. On application for judicial review the Court would not substitute its discretion for that of the Secretary of State or the immigration appellate authorities. 3. The Court by implication rejected the contention that a decision to deport pursuant to s 3(5)(b) could not be based solely on the criminal conviction of the individual.Cases referred to in the Judgment:
R v Nazari [1980] 1 WLR 1366: [1980] 3 All ER 880. R v Immigration Appeal Tribunal ex parte Florent [1985] Imm AR 141. R v Immigration Appeal Tribunal ex parte Hukam Said (unreported, QBD, 19 February 1988).Counsel:
S Husain for the appellant; Miss P Baxendale for the respondent PANEL: Fox, Stocker, Taylor LJJJudgment One:
STOCKER LJ: This is an appeal from a decision of McCullogh J dated 19 February 1988, refusing the appellant's appeal from an order of the Immigration Appeal Tribunal dated 9 January 1987, dismissing the appellant's appeal from a decision of the Secretary of State dated 26 July 1986, making a deportation order against the appellant by virtue of section 3(5) of the Immigration Act, 1971. The facts can be conveniently stated from the judgment itself. The appellant was born in Pakistan in August 1957. His wife was born in April 1960. She came to this country in 1971 and in 1975 she was registered as a British citizen. The appellant came to this country on 9 June 1979 he was sponsored by her, was given leave to enter for twelve months as her fiancé. They were married four days later. In June 1980 he was given leave to stay indefinitely, but in 1981 he became redundant from the employment which he previously obtained. In June 1981 the first of their two children was born, the second child being born in March 1984. The appellant had a minor traffic conviction in February 1982 to which no further reference needs to be made. He applied for British citizenship in February 1983, but that application was refused in April 1984. He had not at that date been in this country for five years. However, a significant matter occurred on 16 March 1984, when the appellant was convicted of two offences at the Wolverhampton Crown Court; one was for possessing cannabis, for which he was sentenced to a term of six months' imprisonment, and the other was the very much more serious offence of conspiracy to supply heroin, for which he was given a term of five years' imprisonment. The two sentences were to be served concurrently. It may be relevant to observe that the street value of the heroin is said to have been in excess of @32,000. Whilst in prison in January 1985, naturalisation was refused. The appellant was informed, in advance, that the Secretary of State was considering whether or not to make a deportation order, and he made representations on his own behalf on that matter on 29 May 1986. Having considered those representations, the Secretary of State decided that, on account of his conviction at Wolverhampton Crown Court, it was conducive to the public good to deport the appellant. The appellant gave notice of appeal against the decision, and whilst the appeal was pending, he was released on parole on 26 August 1986. The appellant did in fact appeal to the Immigration Appeal Tribunal, and the hearing took place on 30 September 1986. The appeal was dismissed with reasons given on 9 January 1987. It is perhaps convenient at this stage to refer to the statutory framework which is relevant to the consideration of this appeal. First, the Immigration Act, 1971. The powers under which the Secretary of State made the deportation order are conferred by section 3(5)(b) of the Act which reads: "A person who is not patrial shall be liable to deportation from the United Kingdom -- "(b) if the Secretary of State deems his deportation to be conducive to the public good;". Relevant to the matters raised on this appeal is section 15(1)(a) which deals with appeals, and reads: "Subject to the provisions of this Part of this Act, a person may appeal to an adjudicator against -- (a) a decision of the Secretary of State to make a deportation order against him by virtue of section 3(5) above" -- which I have just cited. Section 15(7) provides: An appeal under this section shall be to the Appeal Tribunal in the first instance, instead of to an adjudicator, if -- (a) it is an appeal against a decision to make a deportation order and the ground of the decision was that the deportation of the appellant is conducive to the public good;" "Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act -- (a) shall allow the appeal if he considers -- (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal". Section 19(4) provides: "Where in accordance with section 15 above a person appeals to the Appeal Tribunal in the first instance, this section shall apply with the substitution of references to the Tribunal for references to an adjudicator". The factors which are to be taken into account derive from HC 169, which contains the rules applicable at the relevant time. Rule 154 is headed: "Consideration of the merits" and reads: In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects". Rule 156 is headed: "Deportation following a conviction" and reads: "In considering whether to give effect to a recommendation for deportation made by a court on conviction the Secretary of State will take into account every relevant factor known to him, including, "age; length of residence in the United Kingdom; strength of connections with the United Kingdom; personal history, including character, conduct and employment record; domestic circumstances; the nature of the offence of which the person was convicted; previous criminal record; compassionate circumstances; any representations received on the person's behalf." "In certain circumstances, particularly in the case of young or first offenders, supervised departure, with a prohibition on re-entry, may be arranged as an alternative to the deportation recommended by the court provided that the person is willing to leave the country." Rule 157 read: "Where the court has not recommended deportation there may nevertheless be grounds, in the light of all the relevant information and subject to the right of appeal, for deportation, for curtailment of stay or a refusal to extend stay followed, after departure, by a prohibition on re-entry". Rule 159 is headed: "Deportation on conducive grounds" and reads: "The Secretary of State has the power to deport a person if he deems it conducive to the public good. General rules about the circumstances in which deportation is justified on these grounds cannot be laid down, and each case will be considered carefully in the light of the relevant circumstances known to the Secretary of State including those listed in paragraph 156" -- which I have just cited. "The Secretary of State made and published his decision to the appellant on 26 July 1986 in these terms: "On 16 March 1984, at Wolverhampton Crown Court, you were convicted of conspiracy to supply heroin and possession of cannabis. In view of these convictions, the Secretary of State deems it to be conducive to the public good to make a deportation order against you". The document then continues: "The Secretary of State has therefore decided to make an order by virtue of Section 3(5) of the Immigration Act 1971 requiring you to leave the United Kingdom and prohibiting you from entering while the order is in force. He proposed to give directions for your removal to Pakistan". By his explanatory document dated 24 September 1986, the Home Office gave the basis for the decision. The document set out the relevant history of the matter, including the history of the appellant's conviction and the immigration records and history. By paragraph (9) of the document -- of which complaint is made by Mr Husain appearing on behalf of the appellant -- it is said: The Secretary of State then gave careful consideration to the appellant's position in the United Kingdom in view of his recent conviction. The appellant was aged 28 and he had resided in the United Kingdom for seven years and one month, although he had spent almost three years of that time in custody. During his time in the United Kingdom the appellant had had two short-term jobs and had spent the rest of his time unemployed and in receipt of supplementary benefit. He was married to a British citizen and the Secretary of State was aware that they had two pre-school age children. He also noted that the appellant's parents and five of his siblings still lived in Pakistan. The Secretary of State then considered the nature of the offence for which the appellant had been convicted, which was one of conspiring to supply heroin. The appellant had only been in the United Kingdom for four years when he had been arrested for the offence which was one of a most serious nature. The Secretary of State noted the appellant's subsisting marriage to a British citizen but considered that as their children were pre-school age they would be able to adapt to life in a different country. Moreover, the appellant himself had lived in Pakistan for all of his formative years. The appellant had a large family still in Pakistan and although he claimed that his parents would not be able to help him, the Secretary of State considered that he was old enough to make his own living, as he had apparently been doing before coming to the United Kingdom. In the circumstances the Secretary of State did not consider that undue hardship would occur were the appellant to return to Pakistan, nor did he consider that the presence of his wife and two children in the United Kingdom constituted a sufficiently compelling compassionate factor to mitigate against his deportation in view of the seriousness of his offence". There was annexed to that explanatory statement, inter alia, a letter of 30 March 1986 from the appellant's wife, which has been read to this Court. In view of the appellant's having exercised his right of appeal to the Immigration Appeal Tribunal, in my view he can only impugn the basis of the Secretary of State's decision if, in reaching its own conclusion, the Immigration Appeal Tribunal failed to have regard to the matters specified in section 19 of the Act; or, if there was some basis to be derived from the Secretary of State's decision itself, for a conclusion that the Secretary of State's discretion was improperly exercised. Some support for that view is to be obtained from a decision of this Court in R v Immigration Appeal Tribunal ex parte Florent [1985] Imm AR 141, where at page 150 Slade LJ said this: "Realistically, it seems to me, in order successfully to attack the decision of the Immigration Appeal Tribunal before McNeill J, the appellant would have had to show that the considered views of that Tribunal as to the exercise of the Secretary of State's discretion were so demonstrably wrong as to be assailable on ordinary Wednesbury grounds. Despite Mr Macdonald's sustained submissions, but for the reasons given by my Lord, I agree with the conclusion of the learned Judge that the appellant has not shown this." Mr Husain, on behalf of the appellant, has directed his grounds of appeal in the main to the decision of the Secretary of State. He does not rely on the detailed grounds of appeal from the decision of the learned Judge which were contained with the documents before this Court, but upon those matters on which he addressed this Court. His grounds of appeal have been reduced to writing and read: "(1) The words "grounds" and "all" as used in paragraph 157 of HC 169 have made the decision to deport on the sole ground of a conviction unfair and unreasonable under the Wednesbury principle.(2) The failure to consider the issue of "public good" as interwoven in the prospect of dividing the family, and the consequences of such division on innocent parties -- the wife and the children -- has rendered the decision to deport unfair, unreasonable and unmaintainable". Those grounds were developed by Mr Husain in his argument before this Court. They really amount to this if I have correctly understood them: first of all, Mr Husain refers to the terms of rule 157. For the purpose of clarity in considering the basis of Mr Husain's submission, I will repeat rule 157: "Where the court has not recommended deportation there may nevertheless be grounds, in the light of all the relevant information and subject to the right of appeal, for deportation, for curtailment of stay or a refusal to extend stay, followed, after departure, by a prohibition on re-entry". Mr Husain submits that the use of the word "all" in conjunction with the plural of the word "grounds" indicates that there must be more than simply the factor of conviction itself which has to be taken into account. He submits further that paragraph (9) of the explanatory statement of 24 September 1986, to which I have referred, does confine the grounds to the single matter of the fact of conviction. He says that the Secretary of State had not considered all the factors, and in particular has not considered the effect of the deportation order on the appellant's wife and children, but has confined his consideration solely to the effect upon the appellant himself. Mr Husain does not argue that that is a matter which goes to jurisdiction, but submits that such an approach offends the principles of natural justice; or, alternatively, it rendered the decision unreasonable by Wednesbury standards. Mr Husain referred the Court to R v Nazari [1980] 3 All ER 880 and to the judgment of Lawton LJ at page 885, which says: "The next matter to which we invite attention by way of guidelines is the effect that an order recommending deportation will have on others who are not before the court and who are innocent persons. This court and all other courts would have no wish to break up families or impose hardship on innocent people. The case of Fernandez illustrates this very clearly indeed. Mrs Fernandez is an admirable person, a good wife and mother, and a credit to herself and someone whom most of us would want to have in this country. As we have already indicated, if her husband is deported she will have a heartrending choice to make; whether she should go with her husband or leave him and look after the interests of the children. That is the kind of situation which should be considered very carefully before a recommendation for deportation is made." In that case Mr Fernandez was sentenced in respect of conspiracy to rob and aggravated burglary and he was sentenced to a term of 18 months' imprisonment. However, it is to be noted that the case of Fernandez was an appeal to the Criminal Division of this Court, and related to guidelines which the Court was laying down (so far as it was possible to lay down general guidelines) for the guidance of courts in making recommendations for deportation. It did not, and did not purport to lay down any guidelines for the exercise of his discretion by the Secretary of State. But there is a factual basis which, in my view, is an answer to this part of Mr Husain's submissions, which is that his submission was not correct on fact for it is clear from the terms of paragraph (9) that the Secretary of State did consider other factors. He clearly considered the position of the appellant's children saying that they were of pre-school age and would be able to adapt to life in a new country, and continued: ". . . nor did he consider that the presence of his wife and two children in the United Kingdom constituted a sufficiently compelling compassionate factor to mitigate against his deportation in view of the seriousness of his offence". In my view Mr Husain has considerable difficulty in substantiating that ground of appeal on the basis of fact. But, as a matter of law, that submission is really reopening issues which have been considered by the Secretary of State and is in effect inviting this Court to substitute its own discretion for that of the Secretary of State. Therefore, insofar as that ground of appeal is concerned, in my judgment it fails. However, there is a further matter. This Court has to have regard to the fact that the appellant has exercised his statutory right of appeal to the Immigration appeal Tribunal. Accordingly, the decision of the Secretary of State has to be regarded in the light of the decision of the Immigration Appeal Tribunal and of the provisions of Section 19(1) and (4) which have been cited. Accordingly, I turn to the decision of the Immigration Appeal Tribunal, where at page two of their determination of 9 January 1987 they said: "Mr Wilmott suggested that the appellant had not been frank in his evidence, which had been contradicted in some respects by that of his wife. We agree. We found the wife on the whole a frank and open witness: we were not impressed with the appellant, whose evidence we think was not completely true." Then on page 3 of their determination the Immigration Appeal Tribunal deal in considerable detail and seriatim with the requirements of HC 169 paragraph 156, to which I have referred. I will repeat them in this judgment in order to demonstrate that fact, that every one of the factors to which the Tribunal were required to pay regard were considered separately. The Tribunal found these factors: "The appellant, at the date of decision, was 29. He is young enough to start life afresh in Pakistan." (That is factor one). "He has been in the United Kingdom for seven years, of which five ante-date his conviction. That is not, in our view, a period of residence of much weight on the balance". (That is factor two). "His connection with the United Kingdom, except for his immediate family (to which we return below) is a neutral factor". (That is factor three). "He has relatives here, but he also has relatives in Pakistan, and we do not accept that he is irrevocably distanced from those relatives. His personal history, except in regard to the offences of which he was convicted, is likewise, in our view, a neutral factor". (That is factor four). "His work record is not good but, as we note above, that may not be his fault. His domestic circumstances are of concern to us and we consider them in relation to the compassionate circumstances of the case. He has a wife and two children in the United Kingdom. They will not be obliged to follow him -- and as British citizens they will not themselves of course be liable to deportation." (This is factor eight). "Whether they follow him or not they will suffer severe disruption if he be deported. Either they continue in the United Kingdom as a divided family or they go to an environment at present unfamiliar to them and alien. His wife who was brought up in the United Kingdom has only visited Pakistan once, we think: the children, both very young, know no society other than that of the United Kingdom." (That is factor nine). Thus the Tribunal considered all the factors set out in paragraph 156 of HC 169, and they continued: "The case therefore revolves itself into the relatively simple issue of whether the family circumstances of the appellant (and the effect of deportation on that family) outweigh the serious nature of the crime of which he was convicted" -- which is a reference to the discretion to be exercised by the Secretary of State. They conclude: "In our view they do not". In my view it is clear that the Immigration Appeal Tribunal considered both the requirements of HC 169 (so far as it related to their powers under section 19 of the Act) and the compassionate aspect of the matter. They did not find either that the decision of the Secretary of State was not in accordance with law, or with any immigration rules applicable to the case; nor did they find that the Secretary of State's discretion should have been exercised differently. They were, therefore, bound to dismiss the appeal. This appeal in my view, however it was formulated by Mr Husain, is an attempt to persuade this Court to substitute its own discretion for that of the Secretary of State -- a factor which was specifically adverted to by the Judge in his judgment, where he said: "This Court cannot substitute its own decision for that of the Secretary of State or of the Immigration Appeal Tribunal. This Court is not considering whether it would have made a deportation order. This Court is considering whether the decision of the Immigration Appeal Tribunal was made unlawfully. No procedural impropriety has been alleged. The decision can only be overturned if it is shown to have been reached on a misunderstanding or mis-application of the relevant principles of law, or, if the Tribunal, in reaching its decision, took into account material which it ought not to have taken into account, or failed to take into account material which it should have taken into account, or if it reached a decision which, on the material before it, no tribunal reasonably could have reached. Those are the criteria by which this application has to be judged. "The factors which must be taken into account by the Secretary of State in a case such as this are well-known and derive from paragraphs 156 and 159 of HC 169 . . ." Then further in his judgment the Judge said this: "What, in effect, Mr Khan" (Counsel then appearing for the applicant) "has asked the Court to do is to go through the list again and reach its own decision that it would be harsh, unfair and unjust to uphold the deportation order". In my view the Judge correctly considered the powers which he had; he considered the reasons given by the Immigration Appeal Tribunal for their decision, and having cited from their determination and in particular the compassionate issue, reached his conclusion in these terms: "It is impossible to say that the decision which the Tribunal reached was one which no tribunal reasonably could have reached, or that it did not take into account something which it should, or that it took into account something which it should not. "The application to quash the decision must be dismissed. "I have been invited to suggest that the circumstances in this case are such that the Secretary of State should now consider whether his earlier decision should stand. This is not a matter for me. It is for the Secretary of State to decide". In my judgment it is quite clear that the Immigration Appeal Tribunal did act on correct principles, including the exercise of discretion and the reasoning by which the Secretary of State came to his conclusion. I can find no error in the judgment of the Judge which would justify the Court granting an order for judicial review, bearing in mind his view that he was being asked to substitute his own view for that of the Secretary of State. In my view that is what this Court is being asked to do but it is not a function which the Court is prepared to undertake unless such discretion has not been exercised or improperly exercised. Accordingly, for these reasons, I would dismiss this appeal.Judgment Two:
TAYLOR LJ: I agree.Judgment Three:
FOX LJ: I also agree.DISPOSITION:
Appeal dismissedSOLICITORS:
Hafiz & Co, London SW4; Treasury Solicitor.Copyright notice: Crown Copyright
