R v. Secretary of State for the Home Department, Ex parte Patel
R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte PATEL
Queen's Bench Division
[1993] Imm AR 257
Hearing Date: 30 November 1992
30 November 1992
Index Terms:
Deportation -- overstayer -- British Overseas Citizen -- wife of Indian national -- likely to be admitted to India if she applied for a visa -- no intention of applying for a visa -- whether Secretary of State entitled to have reason to believe that she would be admitted to India if removed to India. Immigration Act 1971 (as amended) s 3(5)(a): HC 251 paras 155, 177.
Legitimate expectation -- assertion that Secretary of State did not normally deport overstayers who were British Overseas Citizens -- whether applicant had in consequence a legitimate expectation that she would not be deported.
Judicial review -- applicant declined to apply for visa that would ensure her admission to India if deported as overstayer -- whether in those circumstances it would be appropriate in any event to grant the discretionary relief of judicial review.
Held:
The applicant for leave to move for judicial review was a British Overseas Citizen married to an Indian national. She was an overstayer. The Secretary of State decided to deport her and to give directions for her removal to India, where, so he stated, he had reason to believe she would be admitted. If she applied for a visa then, as the wife of an Indian national, it was likely that she would be granted a visa. She did not wish to go to India however and had stated she would not apply for a visa. Counsel argued that in those circumstances the Secretary of State could not assert that he had reason to believe that if removed to India, the applicant would be admitted there. It was also asserted that it was not the practice of the Secretary of State to deport British Overseas Citizens who became overstayers: accordingly the applicant had a legitimate expectation that she would not be deported. Held 1. The applicant had not shown that in her circumstances, the Indian immigration authorities would not grant her leave to enter nor had she demonstrated that the Secretary of State did not have reason to believe that she would be admitted. 2. In any event judicial review was a discretionary remedy: in view of the applicant's attitude to applying for a visa, the court would not consider it appropriate to grant leave to move for judicial review. 3. The doctrine of legitimate expectation had no relevance. If it had, there was no evidence that the applicant had had any legitimate expectation.Counsel:
M Hasan for the applicant; The respondent was not represented PANEL: Schiemann JJudgment One:
SCHIEMANN J: This is an application for leave to move for judicial review, leave having been refused on the papers. The background to the matter is very well set out in the application, which was drafted by Mr Hasan who has addressed me very well on behalf of the applicant, and it is as follows. The applicant is a British Overseas Citizen. She is a United Kingdom passport holder. Her date of birth was in March 1949. She is married to an Indian citizen who lives, and is, in India and there are three children of the family. In 1988, she entered the United Kingdom as a visitor and was given leave to enter for six months. At the end of that year, she applied for a further extension of leave to enter. That was refused. There was then an appeal and that appeal was dismissed. In 1989, the applicant's solicitors submitted a late application for her to remain as a UK passport holder and that was also refused by the Home Office and there is no right of appeal against that. In 1990, she tried to appeal to the Immigration Appeal Tribunal against the adjudicator's determination in relation to her application for a further extension but she was refused leave so to do. In April 1991, the Home Office wrote to the applicant asking her to leave the UK immediately, warning her of deportation. In November 1991, the applicant's Member of Parliament wrote to the Home Office and sought exceptional leave on her behalf. On 18 February 1992, the Home Office replied to the Member of Parliament indicating that they were not prepared to grant exceptional leave on compassionate grounds and, in due course, notice of decision to deport was served on the applicant and this was subsequently amended so that it reads in its amended form: "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 re-entering while the order is in force. He proposes to give directions for your removal to India, a country to which there is reason to believe that you will be admitted." The basis of the application, as it has been developed by Mr Hasan before the court, is twofold. The first matter to which I address this judgment, albeit that it was the second matter which was raised in argument by Mr Hasan, is essentially this: that there were no possible grounds upon which the Home Secretary could come to the conclusion, which he stated in his Under Secretary's letter of 18 February 1992, namely that he had no reason to believe that the Indian authorities would refuse to accept the applicant on removal from the United Kingdom and the argument is that in order to re-enter India under Indian law, or so it would appear, she would need a visa. There is in front of me an exhibit to an affidavit by Mr Ruparell, which I allowed in this morning, which is a letter from the High Commissioner of India in relation to a different lady written in 1988. What is said in that letter is that in circumstances rather similar to those of the lady with whom I am concerned: "From the papers it is not clear if her husband is an Indian national. If he is so, we do not see any reason why visas could not be granted to her. Mrs Thobhani may please be advised to produce documentary evidence to show that her husband is an Indian citizen and that she is his legally wedded wife. On production of these documents we could issue an entry visa to her." What is said by Mr Hasan, rather ingeniously, is this. He says that true it is that his client is indeed the wife of an Indian national; true it is that she could apply for a visa; and true it is that she would probably be granted a visa, but she does not want to go back to India and, in those circumstances, she has no intention of applying for a visa and, therefore, it is said that the conclusion of the Secretary of State that there is reason to believe she would be granted admission is one for which there is no basis. In my judgment this submission is wrong and should not weigh with the court for two reasons. First, there is no evidence before the court as to what the practice of the Indian Government would be in circumstances such as those postulated by Mr Hasan. True it is that the very exhibit from which I read earlier concludes: "We may however like to mention that we will not insist on Mrs Thobhani to apply and obtain a visa for India against her wishes. If she does not want a visa we will not force one on her". That, no doubt, is right, but what is not clear on the papers before me is what the precise attitude of the Indian Government, or immigration authorities, will be if and when this lady turns up in India having been deported by this country in circumstances where she was in principle entitled to a visa and could have applied for a visa but she chose not to. Quite apart from that, it is for the applicant to show that the Home Secretary had no grounds for the views which he expresses, namely that he had no reason to believe the Indian authorities would refuse to accept her. That is not something which the applicant has demonstrated in this case. I say further on this point that judicial review is a discretionary remedy and, in my judgment, the attitude of this lady, while totally understandable, is one which would incline the court not to grant her leave in the circumstances and not to grant her relief and, therefore, this argument fails. The other argument is rather different. It is said that the United Kingdom has a policy in relation to United Kingdom passport holders effectively not to deport them. The evidence in relation to that policy is contained in the papers in various places, all of which emanate from the applicant's side, with an affidavit from Miss Shutter from the Joint Council for the Welfare of Immigrants who says that over the years, she has had care and conduct of many cases concerning British Overseas Citizen clients who, after entering the United Kingdom for a visit, decided to remain for settlement and throughout her 17 years she has not come across a case where a person holding a British overseas passport, once admitted in the United Kingdom on limited leave, has been deported and it is therefore a departure from the normal Home Office policy and practice which has operated for the past 17 years. What is said by Mr Hasan on behalf of the applicant is that this is a case where she, the applicant, had a legitimate expectation that she would be allowed to remain here. There is, I note, no evidence from the applicant at all that she had any expectation in relation to this matter, still less that it was legitimate but, in my judgment, in any event, this is not a case to which the doctrine of legitimate expectation had any application whatever. This applicant applied to come here originally for a period of six months. She has a husband and she has children abroad. There is nothing in the immigration rules which affects her position. There is nothing in any Act which indicates that she cannot be sent back to the country of her husband and her children. The truth of the matter is that she wishes apparently to look after her mother who is ill. I think it is her mother, although it may be both her parents, I am not sure. Of course, one has some sympathy with that. There are at least one, if not two, other children who are carrying out this task. These are matters for the Secretary of State and I do not regard this case as indicating any arguable point of law and, in those circumstances, I refuse leave.DISPOSITION:
Application refusedSOLICITORS:
Joint Council for the Welfare of Immigrants; Treasury Solicitor
Copyright notice: Crown Copyright