England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

LORD JUSTICE DILLON : This is a renewed application for leave to move for judicial review which has been presented to us very clearly by Mr Gill on behalf of a Mr Michael Ofori. The application for leave to move was previously refused by Macpherson of Cluny J on 25 July 1994.

The history of the matter is that the applicant, who is a Ghanaian, came to the United Kingdom on 9 January 1980. That, of course, is now more than 14 years ago. The centre of this application is as to the application of what has been referred to as the "14-year rule".

The applicant came here as a student. He had leave to remain as a student until 31 July 1986, but an application which he had made for leave to remain after that was dismissed.

Since 31 July 1986 he has remained here without any leave and is quite plainly an overstayer. He, as it is said colloquially, went to ground or, as the judge put it, he disappeared from the attention of the authorities and sought no further extensions. Unfortunately for him, in May 1991 he had the misfortune to have a row with the girlfriend with whom he was then living. She sent for the police and when they came, as is I apprehend their practice, they questioned Mr Ofori about his immigration history. They accordingly reported to the immigration authorities that he was here without leave. The upshot of that was that on 22 July 1992 the Secretary of State issued to him a minded to deport notice. It is likely that when he was refused an extension of his leave to remain after 31 July 1986 he would have been told at that time that he would be liable to deportation if he did not voluntarily leave the country.

He was entitled to appeal against the minded to deport notice, and he did so, but his appeal was dismissed by an adjudicator on 2 September 1993. The adjudicator seems to have given very careful consideration to the circumstances of the case, and considered also Mr Ofori’s connections with this country. He has, it appears, a brother and a sister and a cousin resident here who are entitled to remain permanently, but it did not appear that he had any very close connections with them.

Mr Ofori applied for leave to appeal to the Immigration Appeals Tribunal, but that application was refused on 20 October 1993. Again, there is a clear decision refusing leave. It has not been suggested that there is anything wrong with the decision of the adjudicator, or the decision of the Appeal Tribunal, as matters stood at the time that those decisions were made.

At the beginning of this year, the deportation procedure not at that stage having been taken any further, he completed 14 years in this country.

On 1 June 1994, however, Mr Howard, the Secretary of State, signed a deportation order against Mr Ofori and notice of that was given to him by a letter of 4 June. His solicitors had written earlier, on 28 January 1994, pointing out to the Secretary of State or the immigration department that Mr Ofori had by then completed his 14 years in this country.

What is said by Mr Gill comes essentially to this. Once the 14 years are over there is a different policy applying in accordance with the Secretary of State’s declarations of his own policy, and the Secretary of State is bound to follow that policy scrupulously and is not entitled to attach weight of any significance to the previous history because the whole point of the 14 years’ policy is that indefinite leave to remain should be granted after 14 years’ residence of any legality.

Therefore, having been an overstayer ceases to be relevant if there are not strong countervailing factors.

The policy is varied from time to time. There was, in 1985 or so, a 10-year policy which was changed. It seems that the 14-year policy was introduced in 1987. It is also of course stated in many letters from the department, and has been picked up in other Parliamentary statements.

I find it convenient to take the somewhat fuller statement of the policy from the citation relating back to 1987 by Schiemann J in his judgment in R v Secretary of State ex parte Ogunbodede [1993] Imm AR 28. It reads as follows:

"Lengthy continuous residence may well give rise to the establishment of close ties with this country and it is right that it should be taken into account when the cases of those who have been here unlawfully (either throughout their stay here or for part of it) are being considered.

I have recently reviewed how we should approach cases of long residence bearing this principle in mind and also the fact that lengthy residence is but one of the factors to be taken into account when a case is reviewed. I have decided that, first and foremost, we must continue to consider each case on its merits. When doing so, however, our approach should be that where a person has 10 years or more continuous lawful residence. .

and I interject that Mr Ofori does not have that,

..... or 14 years or more continuous residence (of any legality) indefinite leave to remain should normally be granted in the absence of strong countervailing factors. In all other cases of long residence, the strength of the ties with the United Kingdom, the length of total continuous period in the United Kingdom and the proportion of it which is lawful will be the primary determining factors when deciding to grant or withhold leave to remain".

There is another ministerial statement made by Mr Douglas Hurd, as Secretary of State for the Home Department, on 30 November 1988. He said this:

"One of the factors taken into account when assessing whether to grant indefinite leave to remain where someone has been continuously resident in the United Kingdom for ten years or more is the actual length of that residence. Another is the proportion of the total residence which was lawful.

Although there is no 14-year ‘rule’ as such (because any concession based on length of residence is outside the immigration rules . . .), once a person has been here continuously for 14 years or more, they would normally be granted indefinite leave to remain regardless of the fact that some or all of their residence was unlawful, provided that there were no other strong countervail¬ing factors such as an extant criminal record or deliberate, positive and blatant attempts to evade or circumvent the immigration control. Each case . .. is considered on its merits".

I do not accept Mr Gill’s submission that there is a rigid framework for the consideration of a case once a person has been here for more than 14 years, however legal or illegal his previous residence.

There is a general discretion of the Secretary of State, outside the immigration rules, the basis of which is that each case is considered on its merits. It is not for this court to make rules for the Secretary of State to follow in applying his policy.

In the present case the Secretary of State has considered the position. We have a letter from the Immigration Service Enforcement Department to the solicitors of 22 July 1994. This reads as follows:

"Thank you for your letter of 7th July, on behalf of your above named client who is the subject of a Deportation Order, in which you suggested that your client’s application based on his length of residence in the United Kingdom has not been adequately dealt with. The Secretary of State has carefully reviewed this case and can find no grounds to justify revoking the deportation order".

The letter then goes on to set out the history which I have recounted. It is pointed out that Mr Ofori has known since 22 July 1992 that he was to be deported.

Then there are further references. The conclusion is as follows:

"But it was concluded that these were insufficient compelling factors to justify departing from the normal course of action, that is deportation, where a person has overstayed his leave to remain".

That is referring to the position before the hearing by the adjudicator. The letter then points out that the adjudicator’s determination considered the factors listed in paragraph 164 of HC 251, the relevant paragraphs in relation to deportation, and concluded that the compassionate circumstances did not outweigh the public interest in deporting Mr Ofori.

Then it appears from the letter, quite plainly to my mind, that the Secretary of State took into account, as in my view he was entitled to, that at the time when the Secretary of State decided to deport Mr Ofori he had only been resident for twelve-and-a-half years, and the Secretary of State did not consider that the additional residence which Mr Ofori has acquired by the operation of the appeals process and his application for leave to move is sufficient to justify reversing the decision to deport.

In my judgment the Secretary of State was fully entitled to take that view. The deportation process is begun by the serving of notice of intention to deport. There is a right of appeal against that. If the appeal fails a deportation order is made. There is no right of appeal against the deportation order, merely a right to dispute the suggested place to which the person is to be deported.

I do not accept that once the 14 years have passed, through time taken up with no deliberate delay on anyone’s part in the process of dealing with deportation Procedures which have been set in motion by the service of the notice of intention to deport, the Secretary of State is bound to put on a different coloured pair of spectacles and look at the case again. He is entitled to consider, on the whole view of the case, what the position was during the hearing before the adjudicator and thereafter on the application for leave to appeal and whether there is anything which leads him to take a different view in such further time that has passed since he made his original decision in favour of deportation.

I would accordingly dismiss this application.

LORD JUSTICE LEGGAIT : I agree.

LORD JUSTICE HOFFMANN : I agree.