Regina v. Immigration Appeal Tribunal and another
(Respondents) ex parte Alexander (A.P.) (Appellant)
Regina v. Immigration Appeal Tribunal and another
(Respondents) ex parte Oladehinde (A.P.) (Appellant)
(Conjoined Appeals)
JUDGMENT
Die Jovis 18° Octobris 1990
Upon Report from the Appellate Committee to whom was
referred the Causes Regina against Immigration Appeal Tribunal
and another ex parte Alexander (A.P.) and Regina against
Immigration Appeal Tribunal and another ex parte Oladehinde
(A.P.), That the Committee had heard Counsel on Monday the
23rd, Tuesday the 24th, Wednesday the 25th and Thursday the
26th days of July last, upon the Petitions and Appeals of
Julian Cornell Alexander of 19, Beeston Avenue, London E8, and
of Shamusideen Aranji Oladehinde of 16, Quarley Way, Peckham
London SE15, praying that the matter of the Orders set forth
in the Schedule thereto, namely Orders of Her Majesty’s COurt
of Appeal of the 15th day of March 1990, might be reviewed
before Her Majesty the Queen in Her Court of Parliament and
that the said Orders might be reversed, varied or altered or
that the Petitioners might have such other relief in the
premises as to Her Majesty the Queen in Her Court of
Parliament might seem meet; which said Appeals were by an
Order of the House of the 4th day of June 1990 Conjoined; as
upon the case of the Secretary of State for the Home
Department lodged in answer to the said Appeals; and due
consideration had this day of what was offered on either side
in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Orders of Her Majesty’s Court of
Appeal (Civil Division) of the 15th day of March 1990
complained of in the said Appeals be, and the same are hereby,
Affirmed and that the said Petitions and Appeals be, and the
same are hereby, dismissed this House: And it is further
Ordered, That the Costs incurred by the said Appellants in
respect of the said Appeals be taxed in accordance with the
Legal Aid Act 1988.
Cler: Parliamentor:
Judgment: 18.10.90
REGINA
v.
IMMIGRATION APPEAL TRIBUNAL AND ANOTHER
(RESPONDENTS)
EX PARTE
ALEXANDER (A.P.)
(APPELLANT)
REGINA
v.
IMMIGRATION APPEAL TRIBUNAL AND ANOTHER
(RESPONDENTS)
EX PARTE
OLADEHINDE (A.P.)
(APPELLANT)
(CONJOINED APPEALS)
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Templeman
Lord Griffiths
Lord Ackner
LORD KEITH OF KINKEL
My Lords,
I have had the opportunity of considering in draft the
speech to be delivered by my noble and learned friend Lord
Griffiths. I agree with it, and for the reasons he gives would
dismiss these appeals.
LORD BRANDON OF OAKBROOK
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Griffiths. I agree
with it and for the reasons which he gives I would dismiss these
appeals.
– 1 –
LORD TEMPLEMAN
My Lords,
By section 4 of the Immigration Act 1971 an immigration
officer could decide whether to grant or refuse leave to enter the
United Kingdom. By rule 78 of the immigration rules the Home
Secretary proposed and Parliament approved that the refusal of
leave to enter should require the authority of a chief immigration
officer or of an immigration inspector: Statement of Changes in
Immigration Rules (1983) (H.C. 169). Thus an immigration officer
can only report with a recommendation that leave to enter be
refused. That report is considered by a chief immigration officer
or by an immigration inspector who then authorises and directs
leave to be granted or refused. Leave to enter would normally be
refused if an immigration officer considered and a chief
immigration officer or an immigration inspector agreed that the
immigrant intended to overstay or intended to breach a condition
against employment.
By section 5 of the Act of 1971 the Secretary of State
decides whether to deport. Amongst the grounds for deportation
are overstaying or breach of a condition not to take employment.
By rules 156 and 158 (now (1989) (H.C. 251)) where an immigrant
is an overstayer or has breached a condition of staying,
deportation is normally the proper course subject to full account
being taken of all relevant circumstances including compassionate
circumstances.
Where an immigrant is suspected of overstaying or being in
breach of a condition, the immigrant is interviewed by an
immigration officer who makes a report. That report will set out
the ascertained information relevant to the accusation of
overstaying or breach of condition and any circumstances including
compassionate circumstances discovered by the immigration officer
or urged by the immigrant and relevant to a decision with regard
to deportation. The report of the immigration officer relating to
deportation was originally considered by a member of the
deportation department of the Home Office who alone could
authorise the service of a notice of intention to deport. The
report of the immigration officer relating to deportation is now
considered by one of the specified number of immigration
inspectors, members of the Home Office, who alone can sanction
service of notice of intention to deport. Formerly and now, the
immigrant may appeal against the intention to deport but since the
Immigration Act 1988 the adjudicator and the Immigration Appeal
Tribunal have no power to allow an appeal against an intention to
deport an immigrant who is proved to be liable to be deported and
to have been guilty of overstaying or breach of condition. If an
appeal is not made or if an appeal is unsuccessful, the report of
the immigration officer and the intention to deport are reviewed
by the deportation department at the Home Office (taking into
account any fresh representations or development) and with the
advice of the department and with the advice of the Minister of
State, the Secretary of State decides whether to sign a deportation
order and thus to exercise the power conferred on him by the Act
of 1971.
– 2 –
No one contends that it is illegal or improper for
deportation procedures to be initiated by an interview and report
by an immigration officer. It is contended that it is illegal or
improper for an immigration inspector approved by the Secretary
of State and apprised of that report to direct the service of
notice of intention to deport. There is no express or implied
statutory prohibition on the employment of immigration inspectors
selected by the Secretary of State with due regard to their
seniority and experience to authorise the service of a notice of
intention to deport. As to impropriety, if an immigration
inspector may decide to refuse leave to enter I see no reason why
he should not be allowed to authorise the service of notice of
intention to deport. The intention to deport will in any event be
reviewed by the deportation department, by the Minister of State
and by the Secretary of State. Some attempt was made to equate
the members of the Immigration Service (including immigration
inspectors) with the role of policemen and to equate members of
the deportation department with the role of judges. In my opinion
the analogy is false. All members of the Home Office who are
concerned with entry or deportation or both, are bound to use
their best endeavours to ensure that persons lawfully seeking to
enter are treated fairly, that persons lawfully entitled to remain
are permitted to remain and that persons who have acted
unlawfully are nevertheless permitted to enter or allowed to
remain if in all the circumstances their unlawful conduct ought
fairly to be excused.
The position of immigrants who have overstayed or are in
breach of condition is said to have have been weakened because a
decision to deport now rests with the Secretary of State alone,
whereas prior to the Immigration Act 1988 an adjudicator or the
Immigration Appeal Tribunal might on appeal against a notice of
intention to deport rule against deportation. But this possibility
does not effect the present question.
In full agreement with the speech to be delivered by my
noble and learned friend, Lord Griffiths, I would dismiss these
appeals.
LORD GRIFFITHS
My Lords,
The appellant Shamusideen Aranji Oladehinde is a citizen of
Nigeria. On 17 September 1983 the appellant was granted leave
to enter the United Kingdom for 12 months as a student with a
condition restricting him from taking employment. This leave was
extended, subject to the condition restricting employment, until the
31 May 1988. On 31 May 1988 the appellant applied for further
leave to remain in the United Kingdom as a student. On 25
August 1988, before that application for further leave had been
determined, the appellant was arrested. He was interviewed by an
immigration officer. After some initial prevarication the appellant
admitted during the course of the interview that he had worked
under an assumed name for two security firms in breach of the
condition restricting his taking employment attached to his leave
– 3 –
to enter the United Kingdom as a student. The immigration
officer reported the result of the interview on the telephone to an
immigration inspector who, acting on behalf of the Secretary of
State, decided that the appellant should be deported and authorised
the immigration officer to serve a notice of intention to deport
upon the appellant on the ground that he had taken employment in
breach of the condition attached to his leave to enter. The notice
was served forthwith by the immigration officer on 25 August.
The appellant appealed against the decision to deport him
and his appeal was allowed by an adjudicator on 8 November 1988
on the ground that the Secretary of State had not acted fairly in
deciding to deport the appellant. On 12 May 1989 the Immigration
Appeal Tribunal allowed an appeal by the Secretary of State.
The appellant Julius Cornell Alexander is a citizen of St
Vincent. On 7 October 1984 he was given leave to enter the
United Kingdom as a visitor for two months. His leave to remain
was extended to 7 April 1985. The appellant did not apply for a
further extension of his stay but remained in the United Kingdom
without leave. On 23 September 1988 the appellant was arrested
and interviewed by an immigration officer. The immigration
officer reported the result of the interview on the telephone to an
immigration inspector who acting on behalf of the Secretary of
State decided that the appellant should be deported and authorised
the immigration officer to serve a notice of intention to deport
upon the appellant upon the ground that he had overstayed his
leave to enter the United Kingdom. On 20 February 1989 the
appellant’s appeal against the decision to deport him was dismissed
by the adjudicator. On 8 June 1989 the appellant’s further appeal
was dismissed by the Immigration Appeal Tribunal.
The Divisional Court [1990] 2 W.L.R. 1195 granted orders of
certiorari to quash each of the decisions to deport on the ground
that the Secretary of State could not validly authorise immigration
inspectors to make decisions to deport immigrants from the United
Kingdom.
The Court of Appeal [1990] 2 W.L.R. 1195 allowed appeals
by the Secretary of State and granted the appellants leave to
appeal to your Lordships’ House.
These appeals raise three issues. Firstly, can the Secretary
of State validly authorise immigration inspectors to take on his
behalf decisions to deport persons from the United Kingdom.
Secondly, did the inspectors in fact take the decisions or did they
merely rubber-stamp decisions already taken by the immigration
officers. Thirdly, whether a submission that a decision to deport
has been taken by a person who has no power to make it is within
the appellate jurisdiction created by section 15 of the Immigration
Act 1971 as amended by section 5 of the Immigration Act 1988.
The statutory framework
Each of the appellants, one a citizen of Nigeria, the other a
citizen of St Vincent, is subject to immigration control under the
Immigration Act 1971.
– 4 –
The first appellant took employment and so did not observe
the condition upon which he was given leave to enter the United
Kingdom as a student, the second appellant has been an over-
stayer since 7 April 1985. Therefore each appellant is liable to
deportation pursuant to section 3(5)(a) of the Act of 1971, as
amended by section 52(7) of and Schedule 4 to the British
Nationality Act 1981, which provides:
“A person who is not a British Citizen shall be liable to
deportation from the United Kingdom … if, having only a
limited leave to enter or remain, he does not observe a
condition attached to the leave or remains beyond the time
limited by the leave. . .”
Section 5(1) provides for the making of the deportation
order:
“Where a person is under section 3(5) or (6) above liable to
deportation, then subject to the following provisions of this
Act the Secretary of State may make a deportation order
against him, that is to say an order requiring him to leave
and prohibiting him from entering the United Kingdom; and
a deportation order against a person shall invalidate any
leave to enter or remain in the United Kingdom given him
before the order is made or while it is in force.”
However, before the deportation order is made the
immigrant is given an opportunity to appeal against the decision to
make it, see section 15(l)(a); and section 15(2) provides that a
deportation order shall not be made until the time for appealing
has expired or until the appeal is determined.
Under the Act of 1971 the scope of the appeal was very
wide. Section 19(1) provided that:
“Subject to … any restriction on the grounds of appeal, an
adjudicator on an appeal to him under this Part of the 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”.
The Immigration Act 1988, however, has imposed a
considerable restriction upon the appellate jurisdiction of the
adjudicator. Section 5 provides:
– 5 –
“(1) A person to whom this subsection applies shall not be
entitled to appeal under section 15 of the principal Act
against a decision to make a deportation order against him-
(a) by virtue of section 3(5)(a) of that Act (breach
of limited leave);
. . .
except on the ground that on the facts of his case
there is in law no power to make the deportation
order for the reasons stated in the notice of the
decision.
(2) Subsection (1) above applies to any person who was
last given leave to enter the United. Kingdom less than
seven years before the date of the decision in question but
the Secretary of State may by order exempt any such
persons from that subsection in such circumstances and to
such extent as may be specified in the order.”
I turn now to some of the provisions relating to immigration
officers for it is with their status that this appeal is primarily
concerned. Section 4 of the Act of 1971 provides:
“(1) The power under this Act to give or refuse leave to
enter the United Kingdom shall be exercised by immigration
officers, and the power to give leave to remain in the
United Kingdom, or to vary any leave under section 3(3)(a)
(whether as regards duration or conditions), shall be
exercised by the Secretary of State; and, unless otherwise
allowed by this Act, those powers shall be exercised by
notice in writing given to the person affected, except that
the powers under section 3(3)(a) may be exercised generally
in respect of any class of persons by order made by
statutory instrument.
(2) The provisions of Schedule 2 of this Act shall have
effect with respect to:
(a) the appointment and powers of immigration
officers and medical inspectors for purposes of this
Act;
(b) the examination of persons arriving in or leaving
the United Kingdom by ship or aircraft, and the
special powers exercisable in the case of those who
arrive as, or with a view to becoming, members of
the crews of ships and aircraft; and
(c) the exercise by immigration officers of their
powers in relation to entry into the United Kingdom,
and the removal from the United Kingdom of persons
refused leave to enter or entering or remaining
unlawfully; and
(d) the detention of persons pending examination or
pending removal from the United Kingdom;
– 6 –
and for other purposes supplementary to the foregoing
provisions of this Act.”
Schedule 2, paragraph 1 deals with the appointment of
immigration officers and their duty to act in accordance with
instructions given them by the Secretary of State.
“(1) Immigration officers for the purposes of this Act shall
be appointed by the Secretary of State, and he may arrange
with the Commissioners of Customs and Excise for the
employment of officers of customs and excise as
immigration officers under this Act.
-
-
-
Medical inspectors for the purposes of this Act may
be appointed by the Secretary of State or, in Northern
Ireland, by the Minister of Health and Social Services or
other appropriate Minister of the Government of Northern
Ireland in pusuance of arrangements made between that
Minister and the Secretary of State, and shall be fully
qualified medical practioners. -
In the exercise of their functions under this Act
immigration officers shall act in accordance with such
instructions (not inconsistent with the immigration rules) as
may be given them by the Secretary of State . . .”
-
-
The remainder of Schedule 2 which runs to 33 paragraphs is
primarily concerned with the powers to be exercised by
immigration officers over the control of entry of immigrants into
the United Kingdom and the arrest and removal of illegal
immigrants, that is to say immigrants who have not at any time
been given leave to enter the United Kingdom. The two
appellants are not illegal immigrants and if they are to be
removed from the United Kingdom it must be through the
deportation procedure. The Act of 1971 does not bestow the
power to deport upon an immigration officer. That power is
reserved to the Secretary of State. See Section 4(1) and 5(1).
The immigration rules referred to in paragraph 1(3) are rules
laid down by the Secretary of State as to the practice to be
followed in the administration of the Act which he is required to
lay before Parliament for approval: see section 1(4) and section
3(2). The rules lay down in considerable detail the approach to
their work to be adopted by immigration officers and the way in
which they are to carry it out; by way of example only rule 2 of
the 1983 Rules (H.C. 169) provides:
“Immigration officers will carry out their duties without
regard to the race, colour or religion of people seeking to
enter the United Kingdom.”
and rule 87 provides:
“Before removal a passenger should be given the opportunity
to telephone friends or relatives in this country, or his High
Commission or Consul, if he wishes to do so.”
The practice
– 7 –
It is obvious that the Secretary of State cannot personally
take every decision to deport an immigrant who is in breach of his
condition of entry or who is an overstayer. The decision must be
taken by a person of suitable seniority in the Home Office for
whom the Home Secretary accepts responsibility. This devolution
of responsibility was recognised as a practical necessity in the
administration of government by the Court of Appeal in Carltona
Ltd. v. Commissioner of Works [1943] 2 All E.R. 560 and has come
to be known as the Carltona principle.
Before August 1988 the practice was as follows:
An immigration officer who had interviewed the immigrant
would report the results of that interview to a civil servant in the
deportation department of the Home Office whose duty it was to
decide whether or not the immigrant should be deported. In
arriving at his decision the officer in the deportation department
would have regard to the guidance contained in the Immigration
Rules which provide that where a person is an overstayer or has
breached a condition of stay, deportation is normally the proper
course subject to full account being taken of all relevant
circumstances including compassionate circumstances. See rules
156 and 158 of Statement of Changes in Immigration Rules (1983)
((H.C. 169). (now (1989) (H.C. 251)). This decision was taken by a
civil servant of not less than senior executive officer grade and
there is no suggestion that this was not a proper exercise of the
devolution of responsibility within the Home Office.
If the decision was taken to deport the immigrant the
immigration officer would be instructed to serve a notice of
intention to deport upon the immigrant which gave the grounds
upon which the decision had been taken and notified the immigrant
of his rights of appeal and of the availability of the United
Kingdom Immigrants’ Advisory Service which, if he wished, would
assist him in an appeal. In the event of an unsuccessful appeal or
after the time for appealing had expired the case would again be
reviewed in the deportation department, taking into account any
additional relevant material that had come into existence since the
decision to deport was first made. The decision might then be
reversed but if it was not, a report on the case would be prepared
and submitted to the Minister of State and then if he approved to
the Home Secretary who signed the deportation order personally
unless he was not available for a long period in which case it was
signed by a Junior Home Office Minister.
On 1 August 1988 after the passing of the Act of 1988 the
Home Secretary took the decision which gives rise to these
appeals. It was decided that the initial decision to deport an
immigrant liable to deportation under section 3(5)(a) of the Act of
1971, that is because he has not observed the condition attached
to leave to enter or is an overstayer, should in future be taken by
an inspector in the immigration service and not by a civil servant
in the deportation section. The first three grades in the
immigration service are directly equivalent to administrative grades
in the Civil Service; an immigration officer is equivilant to an
executive officer, a chief immigration officer is equivalent to a
higher executive officer, an inspector is equivalent to a senior
executive officer. An inspector is of the equivalent grade to
those in the deportation section who had previously been taking
– 8 –
the decision to deport in section 3(5)(a) cases. At the same time
inspectors were also authorised to exercise the powers of the
Secretary of State contained in Schedule 3 to the Act of 1971
relating to restriction orders, detention and supervised departure.
Not all inspectors were given this authority. It was limited to 14
out of a total of 52 inspectors and their authority was further
limited to cases in which they had not previously been involved as
immigration officers. Those nominated were all persons of long
service and experience in the immigration service. Mr. Barrell the
inspector in Mr. Oladehinde’s case had 24 years’ experience and
Mr. McCormack who made the decision in Mr. Alexander’s case
had 22 years experience.
Since the introduction of this new power there has been a
considerable increase in the number of immigrants deported for
being in breach of their conditions or for overstaying. The
appellants attributed this to a less scrupulous examination of the
circumstances of an immigrant by inspectors before taking the
decision to deport than had hitherto been the case when the
deportation section had taken the decision. I am in no position to
judge the truth of this assertion, there is certainly no evidence
that the inspectors involved in these cases neglected their duty
and it seems to me that the increase may equally have been
affected by the fact that adjudicators are no longer entitled to
reverse a decision on compassionate grounds.
There is no dispute that both appellants were liable to be
deported, the one for breach of condition the other as an
overstayer, and Parliament has approved a rule that says that in
such circumstances deportation should generally follow.
Furthermore the initial decision to deport is in a sense provisional
as the case is again reviewed before the Home Secretary is invited
to sign the deportation order. I appreciate, however, that the
initial decision is a serious matter setting in motion the
deportation procedure which will gather a momentum that may be
difficult to reverse.
Such is the background against which the appellants’
submissions must be examined.
I will deal first with the submission that the decision to
deport was taken by the immigration officers concerned and not by
the inspectors. There is no evidence to support this submission
which is based upon the suspicion that there cannot be a full
appreciation of the circumstances of the case as a result of a
telephone conversation. I confess myself to some unease about the
practice of taking the decision to deport in this way, but it was
not a practice introduced as a result of giving inspectors the
power to take the decision. It was first introduced in 1986 when
decisions were still taken in the deportation section. It seems to
me that it would be much more satisfactory if whoever is
responsible for taking the decision had the opportunity to consider
a written report including any representations on behalf of the
immigrant before taking the decision. It is after all a grave
decision affecting the future welfare of the immigrant and
although it will be reviewed again in the deportation section, I
have already commented on the momentum of the initial decision.
There is however a practical difficulty in that the power to detain
only arises after service of the notice of intention to deport, see
– 9 –
Schedule 3, paragraph 2(2) to the Act of 1971, so unless the
immigrant is held in custody for the purpose of taking criminal
proceedings against him, he cannot be detained for a short period
whilst the written report is being considered and by the time a
written report has been considered and a decision taken the
immigrant may well have disappeared. What seems to me to be
required is a power to detain for a short period while the report
is considered. However that may be, both inspectors swore
affidavits that they received full oral reports of the results of the
interviews with the immigrants and that they personally took the
decision in the light of those reports to authorise service of the
notice to deport. No application was made to cross-examine the
inspectors and I can see no grounds upon which it would be right
to reject their sworn evidence that the decision to deport was
theirs and not that of the immigration inspectors. Nor in these
cases is there any challenge to the fact that both appellants were
liable to deportation. On this issue the appellants must fail.
I turn now to the principal issue. The appellants submit
that immigration officers are the holders of a statutory office and
as such they are independent of the executive arm of government
and cannot have devolved upon them any of the executive’s
powers. Therefore it is said the Carltona principle cannot extend
to cover the exercise of the Secretary of State’s powers by an
immigration inspector.
Alternatively it is submitted that if immigration officers are
civil servants in the Home Office the structure of the Act, which
differentiates between the powers of the immigration officers
which are primarily concerned with entry control and subsequent
policing of illegal immigrants, and the powers of the Secretary of
State in relation to deportation carries with it a clear statutory
implication that the powers of the Secretary of State are not to
be exercised by immigration officers.
I cannot accept either of these submissions. I have no
doubt in my mind that immigration officers have been civil
servants since they were first employed under the Aliens Act 1905.
The fact that nowhere in the Act of 1971 is there any reference
to an immigration service, or the structure of such a service, is
only explicable in terms that it was recognised that it had evolved
as part of the Home Office expanding over the years. The status
of immigration officers is not that of statutory office holders such
as adjudicators or members of appeal tribunals who are referred to
in the Act as office holders: see Schedule 3 paragraph 2 and 8.
Immigration officers are civil servants in the Home Office to
whom are assigned specific statutory duties under the Act. Apart
from a small pay lead in recognition of their statutory
responsibilities their conditions of service and grading are in all
respects comparable to other Home Office civil servants. The Act
makes no provision for the management of the immigration service
for that is the function of the Home Office of which the service
is a part. Immigration inspectors are senior line managers and as
such will rarely exercise the specific powers given to immigration
officers by the Act. The only mention of a duty to be carried
out under the Act by an immigration inspector is to be found in
rule 78 of the Immigration Rules of 1983 which reads:
– 10 –
“The power to refuse leave to enter is not to be exercised
by an immigration officer acting on his own. The authority
of a Chief Immigration Officer or of an Immigration
Inspector must always be obtained.”
As there are many more chief immigration officers than inspectors
I would expect the power only occasionally to be exercised by an
Inspector.
It is well recognised that when a statute places a duty on a
minister it may generally be exercised by a member of his
department for whom he accepts responsibility: this is the Carltona
principle. Parliament can of course limit the minister’s power to
devolve or delegate the decision and require him to exercise it in
person. There are three examples of such a limitation in the Act
of 1971. Section 13(5) provides:
“A person shall not be entitled to appeal against a refusal
of leave to enter, or against a refusal of an entry
clearance, if the Secretary of State certifies that directions
have been given by the Secretary of State (and not by a
person acting under his authority) . . .”
and see also sections 14(3) and 15(4).
There is no such limitation in respect of the decision to
deport, nor would the Act be workable if there was such a
limitation.
Where I find in a statute three explicit limitations on the
Secretary of State’s power to devolve I should be very slow to
read into the statute a further implicit limitation.
The immigration service is comprised of Home Office civil
servants for whom the Home Secretary is responsible and I can for
myself see no reason why he should not authorise members of that
service to take decisions under the Carltona principle providing
they do not conflict with or embarrass them in the discharge of
their specific statutory duties under the Act and that the decisions
are suitable to their grading and experience.
It has been recognised that it would not be right to
authorise an inspector to take a decision to deport in any case
upon which he had been engaged as an immigration officer for to
do so would be too much like asking a prosecutor to be judge in
the same cause. But in a case in which he has been in no way
personally involved I am unable to see any good reason why the
decision to deport in a section 3(5)(a) case should not be left to
an immigration inspector. He will be a person of comparable
grade to those who previously took the decision and equally
experienced in immigration matters. There was a suggestion that
because immigration officers were primarily concerned with control
of entry and policing functions in respect of illegal immigrants
there might be an ethos in the service that would lead too readily
to a decision to deport. There was no evidence to support this
suggestion and I can see no reason why senior members of the
service should be tarred with this image, and in any event their
decisions are reviewed in the deportation department before the
order is signed by the Home Secretary. It is also to be
– 11 –
remembered that direct transference may take place within the
Home Office between those working in the immigration service and
the deportation section and the evidence is that training of all
those in the Home Office concerned with the implementation of
immigration control is closely coordinated.
On this issue my Lords I am in agreement with the Court
of Appeal that there is no legal impediment to the Home
Secretary authorising immigration inspectors to take the decision
to deport immigrants who are in breach of their conditions of
entry or who are overstayers.
The final question concerns the scope of the appeal against
the decision to deport provided by section 5 of the Act of 1988
which, for convenience, I will set out again:
“(1) A person to whom this subsection applies shall not be
entitled to appeal uner section 15 of the principal Act
against a decision to make a deportation order against him –
(a) by virtue of section 3(5)(a) of that Act (breach
of limited leave); or
(b) by virtue of section 3(5)(c) of that Act as
belonging to the family of a person who is or has
been ordered to be deported by virtue of section
3(5)(a),
except on the ground that on the facts of his case there is
in law no power to make the deportation order for the
reasons stated in the notice of the decision.”
In Reg. v. Secretary of State for the Home Department, Ex
parte Malhi [1990] 2 W.L.R. 932 the Court of Appeal held that on
the true construction of section 5(1) an adjudicator hearing an
appeal under section 15 of the Act of 1971 was not entitled to
investigate the propriety of the procedures leading up to the
Secretary of State’s decision to make a deportation order but
could only enquire whether the facts of the applicant’s
circumstances were such that the Secretary of State had power to
make a deportation order for the reasons stated in the notice of
intention to deport.
The appellants submit that this decision can be distinguished
or alternatively was wrongly decided. In my opinion the case
cannot be distinguished and it was rightly decided.
In passing the Act of 1988 Parliament took the decision to
curtail the appellate powers of adjudicators which had under
section 19(1) of the Act of 1971 enabled an adjudicator to
substitute his own discretion for that of the Secretary of State.
This the adjudicator can no longer do. I read section 5(1), as did
the Court of Appeal in Malhi, as confining the adjudicator to
considering whether or not in a given case the evidence establishes
that the immigrant is liable to deportation on the grounds stated
in the notice of the decision to deport. There is no question in
these appeals that there is in law power to make deportation
orders because Mr. Oladehinde had breached his condition of entry
and Mr. Alexander is an overstayer. What is in issue in these
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appeals is whether the power is being correctly exercised by the
Secretary of State. As Stuart-Smith L.J. pointed out [1990] 2
W.L.R. 932, 943 the adjudicator is concerned with the existence of
the power and not with the exercise of the power. The
procedures of judicial review exist to enable litigants to challenge
the allegedly improper exercise of power and to have the matter
tested in the High Court, as has been done in these appeals. It
would be an unnecessary and potentially embarrassing overlap of
jurisdiction if the adjudicator also had similar powers. In my
opinion the adjudicator had no jurisdiction to enquire into the
propriety of the Secretary of State’s decision to allow immigration
inspectors to take the decision to deport, nor had he jurisdiction
to enquire into whether the decision had been taken by the
immigration officers and not by the inspectors. These are matters
relating to exercise of the power and not with the existence of
the power and are properly the subject of judicial review.
I agree with the judgments in the Court of Appeal in Mahli
and am prepared to adopt their reasoning as my own.
I would therefore dismiss both appeals.
LORD ACKNER
My Lords,
The essential issue in this case is whether immigration
inspectors are entitled to take the initial or preliminary decision
to serve a notice of intention to deport, on behalf of the
Secretary of State on persons who have entered this country
lawfully but who are alleged to have broken the rules or conditions
relating to their stay. The issue is not whether such immigration
inspectors in the instant appeals broke the rules of natural justice
in making their decisions. During the course of submissions I
expressed concern both at the apparent failure to give the
appellants any opportunity to make representations to the
inspectors prior to their making their decisions and the apparent
failure to ensure that the appellants knew precisely what material
the immigration officers had put before the inspectors as the basis
upon which to decide whether or not to make the decision. The
Immigration Act 1988 seriously restricted the immigrant’s right of
appeal. It has therefore become even more important that the
decision-maker has all the relevant material before him and that
this material is accurate. However, the procedure which was or
should have been adopted by the immigration inspectors is not the
subject matter of this appeal. The essential issue is whether the
inspectors had lawful authority to make the decisions which they
made. For the reasons given by my noble and learned friend Lord
Griffiths I am satisfied that the inspectors had such authority and
I too would dismiss these appeals.
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