HOUSE OF LORDS
Hearing Date: 14, 15 MAY, 26 JUNE 1986
26 June 1986
Immigration -- Appeal -- Deportation -- Matters to be considered on appeal against deportation -- Relevant factors and circumstances -- Compassionate circumstances -- Appellant illegally overstaying leave to enter -- Appellant becoming valued member of Sikh community in United Kingdom -- Whether effect of deportation on third party interests a relevant factor or circumstance -- Whether effect of appellant's deportation on Sikh community relevant -- Statement of Changes in Immigration Rules (HC Paper (1982--83) no 66), paras 154, 156, 158.
'(a) 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 or (b) if the Secretary of State deems his deportation to be conducive to the public good or (c) if another person to whose family he belongs is or has been ordered to be deported.'In addition such a person, if over 17, may be recommended under s 3(6) for deportation by a competent court if convicted of an offence punishable with imprisonment. Of the four categories of persons liable to deportation, special rules apply to those who fall within s 3(5)(b) and I need not consider them further. The remaining three categories I shall refer to for convenience as 'overstayers', 'family members' and 'convicted offenders'. Family members liable to deportation as such are, in the case of a man, his wife and children under 18, in the case of a woman, her children (including illegitimate children) under 18 (see s 5(4) ). Overstayers and family members notified of a decision to make a deportation order against them have a right of appeal to the appellate authorities under Pt II of the 1971 Act, to an adjudicator in the first place under s 15 and, if appropriate, to the Immigration Appeal Tribunal under s 20. Convicted offenders, having been entitled to whatever rights of appeal they enjoyed in the criminal courts, have no further right of appeal under the Act, so that it falls to the Secretary of State alone, subject only to the possibility of judicial review of his exercise of discretion, to decide in any particular case, whether to implement the recommendation of a court that a person be deported. Subject to provisions not presently relevant s 19(1)(a) requires an adjudicator to allow an 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 . . .'But s 19(2) provides that--
'for the purposes of subsection (1)(a)(ii) no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so.'The 'immigration rules' referred to in those provisions are those laid before Parliament and having effect in accordance with the procedure provided by s 3(2) of the 1971 Act 'as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter . . .' Section 1(4) requires that the rules 'shall include provision' for certain matters, but these do not throw any light on the questions raised by this appeal. The Act nowhere in terms provides that the Secretary of State is not himself to follow and apply the rules which he himself has promulgated. The clear implication, however, of the provisions of s 19(2) which I have quoted above is that he has a discretion to relax those rules or to apply them less restrictively than their terms would require in favour of a particular immigrant, but that a refusal to exercise such a discretion is not to be appealable. The rules in HC Paper (1982--83) no 66 relating to deportation are set out in Pt XII, paras 148 to 171. Each paragraph or group of paragraphs has a sub-heading. The first two sub-headings are 'Ambit of power to deport' (paras 148 and 149) and 'Right of appeal' (paras 150 to 152). These merely explain in simple terms the effect of the relevant statutory provisions. Paragraph 153, under the sub-heading 'Refugees', is not presently relevant. Paragraphs 154 to 158 are crucial to the arguments which arise on the appeal and I must set them out, with their respective sub-headings, omitting only the latter part of para 158, which is not relevant. They read as follows:
'Consideration of the merits154. 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. 155. Most of the cases in which deportation may be the appropriate course fall into two main categories. There are, first, those cases which come to notice following a conviction for a criminal offence and in which it is fitting that, because of his conduct, a person should no longer be allowed to remain here and, second, those cases in which the person is here, or is remaining here, in defiance of the immigration control. YdDeportation following a conviction 156. 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 connection 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. 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. YdDeportation for breach of conditions or unauthorised stay 158. Deportation will normally be the proper course where the person has failed to comply with or has contravened a condition or has remained without authorisation. Full account is to be taken of all the relevant circumstances known to the Secretary of State, including those listed in paragraph 156, before a decision is reached . . .' Of the remaining sub-headings of Pt XII the only ones that are relevant are ''Deportation of members of families' (paras 160 to 164) and 'Revocation of deportation orders' (paras 170 and 171). The opening sentences of para 171 read as follows:
'Applications for the revocation of a deportation order will be carefully considered in the light of the grounds on which the order was made and of the case made in support of the application. The interests of the community, including the maintenance of an effective immigration control, are to be balanced against the interests of the applicant, including any circumstances of a compassionate nature . . .'The appellant's attack on the decision of the adjudicator is directed at certain paragraphs in which he considered the value of the services rendered by the appellant to the Sikh community. The relevant passages read as follows:
'What I am certain about is that the appellant whilst he has been here, has pleased many different religious and other organisations. I have received evidence about this from the most eminent national figures especially in the Sikh community, and Indian workers organisations. The appellant is, I am satisfied, a major attraction at festivals and the like, capable of attracting audiences of several thousands. He gives his services free to charity when others of his standing might charge as much as @500. He is greatly respected for it. I have received more than a dozen written testimonials all in glowing terms about his religious and cultural services, and entertainment, and they are, to my mind, from people and organisations worthy of notice. I deal with that aspect shortly, not because I have taken less notice of it, but because it is not contestible. It is not a factor relating to the welfare of the appellant himself, and in that sense not a compassionate circumstance.'The adjudicator then refers to the decision of Forbes J in R v Immigration Appeal Tribunal, ex p Darshan Singh Sohal  Imm AR 20. He summarises what he thinks is its effect and continues:
'Thus it seems to me that it would be wrong, in the present case, for me to give weight to the proposition that the Sikh community, or any of those other bodies adversely affected, would be disappointed by the loss of services of the appellant. That is a matter of importance to the Secretary of State in relation to the community at large and to community relations in particular. That is one of his responsibilities, but is not one of mine.'The adjudicator concludes his statement of the reasons for his decision with the following paragraph:
'There is here, however, a matter of the kind referred to by Forbes J in the Sohal case. It may will be an important one, because from what I am told this appellant has a rare talent. That his appeal produced so much support from those who turned out to be not a rabble, but rather, perhaps, in the main well intentioned people though with strong feelings, and certainly prepared to listen to reason, maybe that is a factor. Mercifully that aspect of the affair is not my concern.'I have omitted reference to certain other passages in the decision which might appear in some measure to qualify those which I have quoted, since it is not diputed by counsel for the tribunal, that the adjudicator was directing himself that he must disregard the loss to the Sikh community of the services of a priest and musician with a rare talent, which would result from the appellant's deportation. This was a matter which the adjudicator thought himself bound by Ex p Darshan Singh Sohal to hold to be relevant for consideration only by the Secretary of State, not by the appellate authorities. This was a direction given to himself by the adjudicator which counsel for the tribunal seeks to uphold as a correct direction in law on the footing that where deportation of an individual will be detrimental to third parties other than the deportee's family (whose loss would fall within the scope of 'compassionate circumstances' ), that is a factor which the Secretary of State may weigh in the balance in deciding for or against deportation, but which the applicable rules exclude from consideration by the appellate authorities. In both courts below the language of the first sentence of para 154 of HC Paper (1982--83) no 66 figured prominently in the argument. Hodgson J rejected the submission that in that paragraph the 'public interest' was confined to the maintenance of effective immigration control and the 'compassionate circumstances of the case' were confined to circumstances personal to the person liable to deportation. He also concluded, applying the language of para 158, that 'the effect deportation would have on the Sikh community was a known relevant circumstance which the adjudicator could and should have taken into consideration'. The Court of Appeal took a different view. Having read the first sentence of para 154, Fox LJ, delivering the judgment of the court, proceeded as follows (  Imm AR 217 at 222):
'What is required by these words, in our view, is a consideration of conflicting interests. That follows, we think, from the word ''balancing'' and the word ''against''. It seems to us to be assumed that the compassionate circumstances are, in the balancing procedure, something necessarily in conflict with the element of public interest. Obviously that does not mean that in the end the compassionate circumstances may not outweigh the public interest, but the fact that a balancing is required at all indicates that there is a conflict of interest. The structure of the provision assumes adverse factors on each side of the scales. What then is meant by the ''public interest'' in paragraph 154? In our view it must be the public interest in favour of deportation in enforcement of the immigration laws.'After further examination of the arguments the judgment proceeds (at 223):
'In the context of the document itself and the statute, we can only interpret the 'public interest' referred to in paragraph 154 as the public interest in favour of deportation and as excluding any considerations of public interest which might be against deportation. The only circumstances which the opening words of paragraph 154 is contemplating as being capable of being against deportation are ''the compassionate circumstances of the case''.' (Fox LJ's emphasis.The judgment concludes that the impact of the deportation of the appellant on the Sikh community could not be considered one of the 'compassionate circumstances of the case' which the judgment interprets as confined to circumstances of a personal nature 'relating to the impact of the deportation on the applicant himself which arouse compassion'. If attention is confined to the language of the first sentence of para 154, I find the reasoning of the Court of Appeal compelling. But the real question at issue is whether the first sentence of para 154, correctly construed as having the limited meaning which the Court of Appeal gave to it, has the effect of restricting the ambit of what are 'relevant factors' and 'relevant circumstances' in paras 156 and 158. The Court of Appeal dismissed the argument based on the use of the phrase 'relevant circumstances' in para 158 in the following terms (at 223--224):
'It is said that, if the impact on community relations is not a ''compassionate circumstance'' it is, at any rate, one of the ''relevant circumstances'' within paragraph 158. We do not accept that. If it were correct, it would make the reference to ''relevant circumstances'' so wide as to include matters of a wholly different character from those in paragraph 156. We do not think that ''relevant circumstances'' can be taken as extending to matters unrelated to the personal circumstances of the applicant and his family and persons intimately connected with him. To remove the ambit of the expression from a personal level to a public one is going too far.'In the argument before your Lordships it was not disputed that the effect of deporting a particular individual on third parties other than his family and persons intimately connected with him may well be a factor which is relevant to the discretionary decision whether he should be deported or not. A number of examples will make this clear. 1. A person liable to deportation has been carrying on business in partnership. His deportation will ruin the partnership business. 2. A person liable to deportation is an essential and irreplaceable worker for a company engaged in a successful export business. His deportation will seriously impair the business. 3. A person liable to deportation is a social worker on whom a particular local community has come to depend. His deportation will deprive the local community of his services which will be difficult to replace. 4. A person liable to deportation is an indispensible member of a team engaged in scientific research of public importance. His deportation will put at risk the benefit which the public would enjoy if the research were successful. I have tried to choose the examples so as to illustrate the possibility of the third party interest in avoiding deportation extending to a progressively widening circle and ultimately to the public as a whole. Third party interests are, of course, much more likely to arise in relation to the deportation of convicted offenders than of overstayers. But the ambit of what is 'relevant' must be the same in paras 156 and 158. Counsel for the tribunal does not dispute that third party interests may be relevant to the proper exercise of discretion whether or not to deport in a particular case, but submits, as I have already indicated, that it is the Secretary of State alone, not the appellate authorities, who may take such circumstances into account. The submission necessarily rests on the two propositions: first, that the first sentence of para 154 is the governing provision of the rules which restricts the ambit of paras 156 to 158 by necessary implication second, that in considering third party interests relevant to the exercise of his discretion, the Secretary of State would be departing from the rules in a manner authorised by s 19(2) of the 1971 Act. I cannot accept either of these propositions. Immigration rules made under s 3(2) of the 1971 Act are quite unlike ordinary delegated legislation: see the observations of Lord Denning MR, Geoffrey Lane and Cumming-Bruce LJJ in R v Secretary of State for the Home Dept, ex p Hosenball  3 All ER 452 at 458--459, 462--463, 465,  1 WLR 766 at 780--781, 785, 788. The rules do not purport to enact a precise code having statutory force. They are discursive in style, in part merely explanatory and, on their face, frequently offer no more than broad guidance as to how discretion is to be exercised in different typical situations. In so far as they lay down principles to be applied, they generally do so in loose and imprecise terms as, for example, in the first sentence of para 158. If one concentrates on paras 154 and 155 under the sub-heading 'Consideration of the merits', it is at once apparent that everything following the first sentence of para 154 has the character of expressing broad generalities. In such a context I am unable to give to the first sentence of para 154 the overriding effect which the argument for the tribunal seeks to attribute to it. Counsel for the tribunal concedes that it cannot govern and limit the considerations discussed in paras 160 to 164 relating to the deportation of family members. Why then, I ask myself, should it be read as having that effect in relation to the immediately ensuing paragraphs relating to the deportation of convicted offenders and overstayers? No doubt the antithesis explained by the Court of Appeal between the public interest in favour of deportation in enforcement of immigration control on the one hand, and the personal circumstances of the person liable to deportation which militate against his being deported on the other hand, characterises the essential issue to be determined in most cases where discretion is to be exercised for or against deportation. That makes the first sentence of para 154 a perfectly suitable introduction to the subject in a document having the character of the immigration rules. But I do not read it as intended to be exhaustive or comprehensive. Reliance was also placed on the opening sentences of para 171 which I have set out above. These do not seem to me to carry the matter any further. Moreover there are formidable difficulties in imposing any limitation on the natural meaning of the phrases 'every relevant factor' and 'all the relevant circumstances' in paras 156 and 158. The first is that para 156 is concerned with the deportation of convicted offenders who, having either failed to exercise or exhausted their rights of appeal in the criminal courts, have no further right of appeal under the 1971 Act. It is difficult to understand, in this situation, why the Secretary of State, in a paragraph describing the practice he will follow when making a final decision in the exercise of his discretion whether or not to implement a court's recommendation for deportation (no doubt for the guidance of officers in his department who, in most cases, will take the decision on his behalf ) should do so less than fully. But if the argument of counsel for the tribunal is right, para 156 must be read as referring only to factors which will be considered by the Secretary of State within the rule, leaving other relevant factors available for consideration in the exercise of a discretion to depart from the rule. The second difficulty is this. Although there is the theoretical possibility of a distinction between what may be considered as relevant by the appellate authorities under r 158 and other relevant circumstances available for consideration by the Secretary of State outside the ambit of that rule, it is difficult to suppose that the unappealable discretion of the Secretary of State to depart from the rules, which is implicit in s 19(2) of the 1971 Act, was conferred in contemplation of such a subtle distinction. Section 19(2) is readily applicable where the rules provide that in given circumstances a decision adverse to the applicant is to be made. Thus, for example, under para 99 of HC Paper (1982--83) no 66 applications for variations of temporary leave to enter 'are to be refused' in certain defined circumstances. An applicant to whom those circumstances admittedly apply may invite the Secretary of State to vary his leave and the Secretary of State, despite the rule, has a discretion to do so. If he refuses, there is no right of appeal. But the concept of a limitation imposed by the rules on what may be taken into account in making a discretionary decision which is binding on the appellate authorities but not on the Secretary of State, is very much harder to encompass within the ambit of s 19(2). The argument of counsel for the tribunal encounters its final and, to my mind, insurmountable hurdle, in a consideration derived from the general law. On classic Wednesbury principles (see Associated Provincial Picture Houses Ltd v Wednesbury Corp  2 All ER 680,  1 KB 223), in exercising his discretion whether to implement a court recommendation for deportation or whether to decide to make a deportation order against an overstayer, the Secretary of State is bound to take account of all relevant considerations. If, therefore, some interest of third parties which is known to the Secretary of State and which would be adversely affected by deportation is in truth relevant to the proper exercise of the discretion, a decision made without taking it into account would in any event be open to challenge by judicial review and consequently would be open, in the case of an overstayer, to appeal under s 19(1) as being 'not in accordance with the law' quite apart from the immigration rules. It follows that to construe the rules in the sense for which the respondent contends would not only conflict with the general law but would also be ineffective to restrict the relevant matters which the appellate authorities may, and indeed must, take into consideration. For these reasons I conclude that the adjudicator misdirected himself in law. But having expressed that conclusion, it is appropriate to sound a note of caution. Counsel for the tribunal, in the course of his argument, asked rhetorically where the line is to be drawn once the appellate authorities are permitted to cross the boundary which separates personal and private considerations affecting the person liable to deportation from public and political considerations affecting society at large. The latter, he submitted, are not within the competence of the appellate authorities and are matters which the Secretary of State alone is able to assess. To illustrate the argument, he took the example of threatened industrial action in the event of a particular individual being deported. The Secretary of State, he said, could consider it the appellate authorities could not. The only matters which the law requires, or indeed permits, to be taken into consideration either by the Secretary of State or by the appellate authorities in deciding whether or not in any particular case to make a deportation order are matters relevant to the proper exercise of the statutory discretion. Extraneous threats to instigate industrial action could only exert an improper pressure on the Secretary of State and if he allowed himself to be influenced by them, he would be taking into account wholly irrelevant considerations. It is not fanciful to imagine other, less dramatic situations, in which consideration of the political implications or repercussions of a decision for or against deportation in a particular case might not be relevant to the proper exercise of the statutory discretion. But to attempt to draw in the abstract precise boundary lines which, in this sensitive area of administration, separate the relevant from the irrelevant would be both an unprofitable and a dangerous exercise. Relevance can only be determined in relation to the facts of particular cases. I have found it unnecessary, in this opinion, to examine the judgment of Forbes J in R v Immigration Appeal Tribunal, ex p Darshan Singh Sohal. It matters not whether the decision was right or wrong on its own facts. But I cannot help wondering whether the dicta in the judgment which draw a distinction between matters which are 'political' and those which are 'justiciable' may not have been prompted by the kind of considerations to which I have directed attention in the foregoing paragraph. However that may be, there is nothing 'political', in a sense which would take them outside the ambit of relevance to the proper exercise of the adjudicator's discretion, in the factors which he here held himself bound to disregard. He was not, I think, using language quite accurately when he spoke of the matter being one of 'community relations'. On the adjudicator's primary findings of fact, this was a simple case of a man of outstanding talent and dedication rendering services of outstanding value to a particular section of the community of which they would be deprived if he were deported. The question what weight is to be attributed to third party interests of the kind I have been discussing which would be adversely affected by a decision to deport is entirely a matter for the Secretary of State or the appellate authorities exercising discretion under the statute and must depend on all the other relevant circumstances in the context of which the decision falls to be made. It may well be difficult to attach any considerable weight to the third party interest affected if the person liable to deportation has established his reputation and proved the value of his services from which the third party interest arises during a period when his presence in this country was in contravention of the immigration laws. However, that is not for your Lordships to decide. In the event of the appeal being allowed, neither party suggested any variation of the order made by Hodgson J which, as already indicated, quashed only the refusal of leave to appeal by the tribunal. If your Lordships agree with me that the adjudicator's decision was vitiated by misdirection, then it must, it seems to me, be for the tribunal to consider the whole matter de novo taking note of the opinions expressed in your Lordships' House on the question of relevance, but deciding for themselves all questions of weight. By what procedure they undertake the task will be a matter for them to decide. I would allow the appeal, set aside the order of the Court of Appeal, restore the order of Hodgson J and order the tribunal to pay the appellant's costs in the Court of Appeal and in this House.