Jaramillo-Silva and Another v. Secretary of State for the Home Department

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	24 March 1994
Citation / Document Symbol	[1994] Imm AR 352
Cite as	Jaramillo-Silva and Another v. Secretary of State for the Home Department, [1994] Imm AR 352, United Kingdom: Court of Appeal (England and Wales), 24 March 1994, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b68e10.html [accessed 27 May 2023]
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JARAMILLO-SILVA and another v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1994] Imm AR 352

Hearing Date: 24 March 1994

24 March 1994

Index Terms:

Deportation -- convictions for serious crimes -- recommendations by court that applicants be deported -- Secretary of State decided to act on recommendations -- applicants erroneously advised by Secretary of State that they had full rights of appeal to the Tribunal -- error corrected -- whether, nonetheless applicants had, in consequence of Secretary of State's original error a legitimate expectation they would have an opportunity to appeal on the merits. Immigration Act 1971 ss 3(5)(b), 3(6), 5(1).

Held:

Renewed applications for leave to move for judicial review. The applicants, two brothers, were citizens of Colombia. They had been found guilty of serious drug offences: in passing long custodial sentences, the court recommended they be deported. The Secretary of State decided to act on those recommendations, pursuant to section 3(6) of the 1971 Act. In advising the applicants of his decision the Secretary of State erroneously told the applicants they would have a right of appeal. That error was subsequently corrected by the Secretary of State. Counsel argued however that the original incorrect information from the Secretary of State had raised a legitimate expectation on the part of the applicants that they would have a right of appeal.

Held

1. There was no suggestion in the correspondence with the representatives of the applicants that the applicants had understood at any stage that the Secretary of State was abandoning his powers under section 3(6) and would rely on section 3(5)(b).

2. It was neither unfair nor contrary to good administration for the Secretary of State, following his mistake, to pursue the section 3(6) route. He was not required to stand by his mistake and regard himself as inhibited from following what otherwise must inevitably have been the appropriate route, namely deportation under section 3(6).

3. It could not be said that the applicants had acted to their detriment because of the error.

Cases referred to in the Judgment:

Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629: [1983] 2 All ER 346.

R v Secretary of State for the Home Department ex parte Francisco Jaramillo-Silva (unreported, QBD, 5 November 1993).

R v Secretary of State for the Home Department ex parte Ruben Jaramillo-Silva

(unreported, QBD, 11 November 1993).

Counsel:

Miss I Rahal for the first applicant; M Soorjoo for the second applicant; Miss B Hewson for the respondent

PANEL: Nourse, Beldam, Simon Brown LJJ

Judgment One:

SIMON BROWN LJ: Before the court are two renewed applications for leave to move for judicial review advanced on behalf of two brothers whom I shall call respectively Ruben and Francisco. They are citizens of Colombia now in their early thirties, both having lived in this country since 1977 when they came to join their parents who were already settled here.

In May 1993 the Secretary of State made deportation orders against both brothers directing their return to Colombia. Those orders were made pursuant to the provisions of sections 3(6) and 5(1) of the Immigration Act 1971. Both applicants now seek to challenge those orders and, more particularly, the Secretary of State's decision to make them pursuant to section 3(6) rather than section 3(5)(b).

Section 3(6) founds the liability to deportation upon a court's recommendation following a criminal conviction. Section 3(5)(b) founds the liability to deportation when the Secretary of State deems that conducive to the public good. The critical distinction between them for present purposes is this, that a decision to deport under section 3(6) gives rise only to a limited right of appeal against destination, not to the merits of the decision, whereas a decision to deport under section 3(5)(b) carries with it a full appeal to the Immigration Appeal Tribunal, an appeal therefore which includes the ground that the Secretary of State should have exercised his discretion differently. Both brothers seek to found their proposed challenge principally upon the doctrine of legitimate expectation. Put at this stage very shortly, they seek to hold the Secretary of State to a statement communicated to each brother in January 1992, erroneously informing him that he would have a right to appeal against any decision to deport him, erroneous, that is, given that the Secretary of State was contemplating exercising his powers under section 3(6) rather than under section 3(5)(b).

With that short introduction, let me set out the facts in a little greater detail. It is convenient to do so by reference to the chronology of developing events. When both brothers arrived in this country in 1977 they obtained leave initially as visitors. On 6 April 1979 the time-limit on their extended period of stay was removed and each was granted indefinite leave to remain. On 31 December 1983 Ruben had a son by a former girlfriend, a British citizen, with whom that child now lives, presently aged 11. On 13 March 1987 Francisco married. There were no children of that marriage and it was dissolved on 15 October 1992. On 28 February 1990 both applicants were arrested for the illegal importation of drugs. To that I shall return.

On 1 May 1990 Ruben's Colombian wife arrived in the United Kingdom, illegally, as she later admitted. She obtained entry as a visitor, concealing her intention which was to join her husband for an indefinite period.

On 3 August 1990 both applicants were convicted at Southend Crown Court of an offence of importing class A drugs. In fact, they imported over @100,000 worth of cocaine, receiving it through the mail in compact disc holders. Each was sentenced to ten years' imprisonment and recommended for deportation. Although their earliest date of release is 29 October 1996, on 30 June last they became eligible for parole licence and we are told that the Parole Board had decided that they shall be released on parole and deported on a date to be decided in consultation with the Home Office.

On 4 October 1990 Ruben had a second child by his Colombian wife who, as stated, had shortly before entered this country illegally.

On 15 November 1991 the applicants' appeals were heard and dismissed by the Court of Appeal (Criminal Division), those appeals being against conviction, against the sentences of 10 years' imprisonment and, most pertinently for present purposes, against the deportation recommendations.

On 20 January 1992 the Home Office sent the letter said to found the basis of the proposed challenge here. It was a memorandum from the immigration authorities to the respective prison governors in whose custody these applicants then were, stating that the Secretary of State was currently considering their immigration status in the light of their convictions and asking the governors to advise the applicants that the Secretary of State had noted the convictions, and took a very serious view of the offences and, in the light of them, was now considering their liability to deportation. The letter continues thus:

"If you feel that there are any valid reasons why you should not be deported to Colombia on completion of your sentence, you should submit these in writing . . ."

(to a given address)

"within 28 days of this notification. If you fail to register any comments within this time the Secretary of State will decide the question of deportation on the basis of information presently known to him. You will have a right of appeal against any decision to deport you."

It is upon that last sentence that the submissions have focused. As stated, that right of appeal would only arise in the event of a deportation order under section 3(5)(b) (Having regard to the overall context of that letter and a later letter pointing out the error, it is plain that the right of appeal there referred to was, as the applicants submit, a full right of appeal and not merely a destination appeal.)

Following that letter, on 28 January 1992, well within the 28-day period, both applicants wrote to the Secretary of State. Only Francisco's letter is in our papers and he, although for the most part complaining about his conviction and asserting a conspiracy between his counsel and the prosecution, in one paragraph emphasises what he asserts to be his close connection with this country, both because he has lived here for so long, and because far and away the larger part of his family are resident here. Not only did each applicant write, so too on 11 March did solicitors then instructed on behalf of both, a letter which included this paragraph:

"We understand that the Secretary of State is considering making a deportation following their conviction at Southwark Crown Court on 8 April 1990 in respect of offences relating to importation of drugs."

There is no suggestion there that the Secretary of State might be contemplating making such order under Section 3(5)(b), a matter to which I shall return.

On 9 April 1992 the Secretary of State rejected the assertion that there had been a miscarriage of justice. By then, of course, the Court of Appeal (Criminal Division) had already dismissed the appeal. On 29 June 1992 both applicants were interviewed at length with regard to their personal circumstances and no one disputes that they had ample opportunity to assert everything of relevance as to why they should not be deported. On 18 January 1993 Ruben's Colombian wife was duly served with deportation papers.

On 22 February 1993 the Secretary of State wrote to correct his earlier error, saying this:

"On 20th January 1992 we wrote to you warning you of your liability to deportation and we wrongly advised that you would have a right of appeal against any decision taken to deport you. As a subject of a recommendation by the court for deportation there is in fact no right of appeal in law against the court's decision."

That last sentence, although infelicitously worded (for, of course, there was as right of appeal against the recommendation for deportation, a right which had, in fact, already been exercised) makes it plain that the Secretary of State was clearly contemplating throughout the exercise of his powers under section 3(6). On 29 April 1993 a submission was put up in the usual way by the Immigration and Nationality Department to the Secretary of State canvassing the competing considerations in play whether to make a deportation order on the court's recommendation. That submission pointed out:

"There are strong compassionate circumstances arising from their length of residence and their family connections here."

But a little later:

". . . on balance it is considered that the compassionate factors are outweighed by the strong public interest in deporting the brothers on completion of their sentences. In addition there appears to be no grounds for not removing [Francisco's wife] . . . accompanied by the child, as an illegal entrant."

On 17 May 1993 the Secretary of State duly signed deportation orders under section 3(6), and on 28 May gave directions for removal to Colombia. That led to a destination appeal which was heard by an adjudicator on 2 August 1993 although as neither applicant had indicated any basis of objection to Colombia or suggested any other possible country to which the deportation order could relate, the appeal was unsurprisingly found invalid. On 20 September 1993 Ruben's solicitor wrote to the immigration authorities urging that the Secretary of State had failed to pay sufficient attention to her clients' connections with this country which she then rehearsed in detail. Reference was made to article 8 of the European Convention on Human Rights and to the Department's policy document DP/2/93. On 22 September the Home Office replied that the Secretary of State in all the circumstances thought deportation appeared justified as "necessary in the interest of a democratic society." That, of course, was a reference to the Convention. The letter emphasised that there was no basis for changing the Secretary of State's mind, and ended,

"There can be few more anti-social crimes than those for which [Ruben] . . . has been convicted and sentenced and deportation was considered to be the right course on the merits."

These present challenges were then advanced. The applications came, as to Francisco, before Macpherson J on 5 November and, as to Ruben, before Potts J on 11 November. Leave was refused in both cases.

Upon these renewed applications both counsel concentrate their submissions essentially upon the statement contained in the letters of 20 January 1992 and contend that that final sentence, "You will have a right of appeal against any decision to deport you," gave rise to a legitimate expectation that the Secretary of State would thereafter exercise his powers of deportation, if at all, under section 3(5)(b), thereby, so to speak, honouring his assurance that the applicants would, indeed, have a right to appeal, ie, a right to a full appeal rather than merely a destination appeal.

Counsel for both applicants place great reliance on the opinion of Lord Fraser in the Privy Council in Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 and not least this passage at page 637C-D:

"The expectations may be based upon some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in a way that would make it unfair or inconsistent with good administration for him to be denied such an enquiry."

The assurance given in that case was that illegal immigrants from Macau found in Hong Kong who would not otherwise be entitled to any procedural rights or safeguards whatever, would be interviewed and "each case will be treated on its merits." The authorities were held bound to honour that clear and categoric assurance. There seem to me, however, critical differences between the situation arising in this case and that which arose in Shiu. Whereas there it is plain that the Attorney-General intentionally held out specific promises as to the action and attitude that would be taken with regard to illegal entrants, and not least that all such cases would be treated on their merits, here, by contrast, the Secretary of State was simply making a mistake in suggesting there would be a right of appeal enjoyed by the applicants against orders to deport them. The application is not, and cannot be, advanced on the footing that the applicants would, indeed, have a right of appeal were the Secretary of State to exercise his powers under Section 3(6). Rather the argument must be, and is, that the Secretary of State inferentially represented that he would be discarding his section 3(6) powers and would contemplate instead the exercise of his section 3(5)(b) powers. I do not believe that the applicants so understood that assurance. Nor do I believe that their solicitors (and various solicitors were instructed over the months) so understood the crucial letter. Certainly, the solicitor's letter of 11 March 1992 made no such suggestion and right up to the time these proceedings were brought there is a striking absence from the correspondence of any suggestion by any solicitor that the Secretary of State was bound to consider deportation only under section 3(5)(b) and, indeed, had given an assurance tantamount to a promise so to do.

I accept Miss Rahal's contention in the course of her helpful and able submissions that reliance and detriment as such are not necessarily required in every legitimate expectation case. But, as appears from the passage already cited from Lord Fraser's opinion, it is certainly necessary for the applicant to establish that it was unfair or inconsistent with good administration for the Secretary of State, following his mistake, to pursue the section 3(6) route. I, for my part, am wholly unpersuaded that that was unfair or that good administration required him, so to speak, to stand by his mistake and regard himself as inhibited from following what otherwise must inevitably have been the appropriate route, namely deportation under section 3(6).

In so far as it is suggested that the Secretary of State's decision was unfair because the applicants had in fact acted to their detriment, that seems to me a wholly impossible contention. The suggestion advanced in Francisco's affidavit that he did not make as full representations as otherwise he would have done following the letter of 20 January 1992 because ". . . I would be able to argue my case fully before an independent body on appeal" rings altogether hollow. It is indeed an absurd and illogical suggestion. Whether or not he had a full right of appeal could not sensibly affect the representations he made as to why the Secretary of State should not make a deportation order against him in the first place. The clear fact is that both applicants had, and took, every opportunity to make plain their case on the facts both by letters and at interview.

Given, moreover, that it would clearly be appropriate in a case involving a section 3(6) court recommendation, not least a recommendation subsequently upheld by the Court of Appeal (Criminal Division), for the Secretary of State to follow that route rather than the section 3(5)(b) route, it seems to me quite impossible to suggest that good administration here precluded him from doing so merely because he gave a mistaken indication of the applicant's appeal rights.

For good measure I would add just this: it seems to me that neither applicant here, even had they enjoyed full rights of appeal, would have had any sensible prospect of succeeding before the Immigration Appeal Tribunal. That Tribunal would clearly have been entitled to give the fullest weight to the applicants' criminal convictions and the court's recommendations for deportation. It would have realised that the only reason the appeal was before it was because the Secretary of State had misinformed the applicants regarding their rights of appeal. In those circumstances it would hardly have been inclined to strike a different balance from the Secretary of State with regard to the essential merits of the decision. True, as Miss Rahal submits, the Immigration Appeal Tribunal would have been empowered by law to come to a different decision. True, too, they could have heard evidence and examined the merits afresh. But, as it seems to me, given the background to this case and the gravity of the conviction now standing against these applicants, it is not to be thought that they would have come to a conclusion different from that reached by the Secretary of State.

Mr Soorjoo, on Ruben's behalf, seeks to urge that his grounds for remaining here are stronger than his brother's because his connections with this country are closer bearing in mind that he has two children presently living here. As it seems to me, however, that consideration is counterbalanced by the fact that his wife (and one of the children) are liable to administrative removal because, as is not disputed, his wife arrived here as an illegal entrant. Given that she is to be removed, that would seem to make the case for his deportation if anything stronger rather than weaker than his brother's. Nor, in my judgment, does policy document DP/2/93 support Mr Soorjoo's argument. I do not accept for one moment that anything in it requires the Secretary of State to invoke section 3(5)(b) rather than section 3(6) when the latter is in fact available to him. Nor do I find an arguable case for saying that article 8 of the Convention could possible found a challenge to the Secretary of State's decision.

No separate case is now advanced on the basis that the Secretary of State's decision is Wednesbury unreasonable. All that is contended is that it was unreasonable for him to take the section 3(6) route after assuring the applicants that they would enjoy a right of appeal. For the reasons already indicated, I find it neither unfair nor inconsistent with good administration to have corrected his mistake rather than given effect to it in the way contended for.

I would therefore refuse both these renewal applications.

Judgment Two:

BELDAM LJ: I agree.

Judgment Three:

NOURSE LJ: I also agree.

DISPOSITION:

Applications dismissed

SOLICITORS:

Fatima Thobani & Co, London, NW6 for the first applicant; Jane Coker & Partners, London, N17 for the second applicant; Treasury Solicitor.