England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		25 April 2012

1. THE DEPUTY JUDGE: This is an application for judicial review of the decision of the Secretary of State to make an exclusion order against the claimant preventing him from entering the United Kingdom.
2. The facts can be briefly stated. The claimant came to the United Kingdom on a student visa on 3 October 2001. He was granted further leave to remain to continue his studies on successive occasions, with the final grant of leave due to expire on 31 January 2010. He had completed an MBA and was seeking to complete a PHD at the University of Kent.
3. Unfortunately, on 22 September 2008, the claimant was convicted under section 5(3) of the Misuse of Drugs Act 1971 of possession of a controlled drug with intent to supply a controlled drug. The controlled drug in question was cannabis. He was sentenced to 6 months' custody. The trial judge did not make an order for deportation. He would have been required to make such an order had the sentence been 12 months or more. The Judge had a discretion to impose a deportation order for a 6 month sentence but, for reasons which are not clear, did not make such an order in the present case. The claimant was also found in possession some £47,000 in cash at his room.
4. In summary, the claimant entered a basis of plea before the Crown Court. The basis of plea was that he was a cannabis user and that he was, effectively, storing the cannabis on behalf of a drug dealer and was also storing cash on behalf of the drug dealer. So this was not a case where the claimant was selling the drugs directly onto the street.
5. Despite the fact that the judge did not order the deportation of the claimant, the UKBA decided it would be appropriate. As such, it made a deportation order. That attracted an in-country right of appeal, which the claimant exercised. At the appeal hearing the tribunal heard evidence from the claimant and various character witnesses. It also considered, amongst other things, the commitment that had been given by the then Prime Minister, Mr Gordon Brown, to the Labour Party Conference in 2007, that there would be an extension to the way in which persons who had been convicted of offences relating to the supply of drugs would be dealt with. Simply stated, the policy was that the presence in the UK of any foreign national convicted of being involved in the supply of any drug was not conducive to the public good and that deportation action would be pursued against all those with relevant convictions.
6. The tribunal rejected the claimant's appeal. It rejected the submission that there would be any breach of Article 8 of the European Convention on Human Rights as a result of deportation. It concluded that deportation was necessary in the public interest, given the seriousness of the claimant's conduct.
7. Once the claimant's appeal rights were exhausted, the claimant decided to leave the country voluntarily before the deporation order was formally made against him. The effect of his voluntary departure was that a deportation order could not then be made against him. Had the deportation order been made against him then, under paragraph 391 of the Immigration Rules, he would have been automatically excluded from the United Kingdom for a period of 10 years. It is a reasonable inference that he left the country in order to avoid the operation of that provision. Once it was apparent that he had voluntarily left the United Kingdom, a submission was made to the Secretary of State for an exclusion order. That was in accordance with paragraph 320(6) of the Immigration Rules, pursuant to which refusal of entry clearance or leave to enter the United Kingdom can be made, where, amongst other reasons, the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good.
8. On 22 September 2009, the UKBA wrote to the claimant's solicitors. They said, in terms:

i. "Thank you for your letter dated 7 August 2009 informing me that your client has left the United Kingdom to return to Russia.

ii. This is to inform you that we have applied an exclusion order against your client to prevent him re-entering the United Kingdom."

9. It was correctly pointed out behalf of the claimant that the sentence as expressed is capable of two meanings. One is that the UKBA has, outside its own jurisdiction, itself applied an exclusion order against the claimant, or there is a missing for word in the second sentence quoted above, namely the word "for": "This is to inform you that we have applied 'for' an exclusion order against your client." Given the clear statement in the Immigration Rules and that fact that this was addressed to experienced immigration solicitors, I do not believe that that letter has any room for misinterpretation. It was clearly a statement by the UKBA that they had applied for an exclusion order against the claimant, simply because an exclusion order could not be made by anyone other than Secretary of State personally, in accordance with the prerogative power in the Rules, to which I have referred. No representations against the making of an exclusion order were received by the Secretary of State from the claimant or his solicitors on his behalf.
10. On 29 September, the Secretary of State considered the application. It is fair to say that the Ministerial Briefing, a copy of which is in front of me, is succinct, to put it mildly. It simply said:

i. "Issue

ii. Whether or not to exclude those whose details appear at Annex A from the United Kingdom in the light of their criminal convictions.

iii. Timing

iv. Pressing. Although the details of the attached cases have been added to the Warnings Index, there is a possibility that they might try to return to the United Kingdom in spite of this."

11. I pause there. It is said on behalf of the claimant that that is factually inaccurate. The claimant contends that it was not pressing. In my judgment, that submission cannot succeed. It is quite clear that there was a possibility that the claimant might try to return to the United Kingdom. It is for the UKBA to make sure, in accordance with its function, that immigration controls are applied efficiently and effectively. The exclusion of persons who are thought not to be conducive to the public good from the United Kingdom is, it seems to me, a matter which, on any view, should be pressing as far as the UKBA and the Secretary of State are concerned.
12. There is then a statement that was also commented on by the claimant under the heading: "Level of Controversy: 5. Low." It is suggested that that was incorrect because it did not draw attention to the fact that the claimant had resisted the deportation order that had been made against him and would wish to argue on compassionate grounds that he should not have an exclusion order made against him. Again, I do not find that that submission has any force because that paragraph was plainly, in my judgment, related to the likelihood of any of the orders the Secretary of State was going to make attracting the attention of third parties such as Members of Parliament or the Press.
13. The recommendation was:

i. "In view of each of the individuals' convictions, you agree that their presence in the UK would not be conducive to the public good and that you agree that they be excluded."

14. Attached to the Briefing is a schedule which deals with a number of different cases. In relation to the claimant, it identified that he was convicted of a drug offence with intent to supply. It is accepted by the Claimant that these particulars are accurate. There are then two columns which say: "Compassionate circumstances: none" and "Any representations against exclusion: none". For the reasons I have identified, the fact that there were no representations against exclusion was (a) accurate and (b) it followed on from what I regard as a reasonable interpretation of the letter of 22 September that such representations could have been made. The claimant challenges the statement that there were "no compassionate circumstances", and I will return to that in a moment.
15. What is submitted on behalf of the claimant is that the Secretary of State did not afford a proper opportunity for the claimant to make representations against the exclusion order, that it was incorrect to say there were no compassionate circumstances because there were, and that he would have wished to have make detailed representations before the exclusion order was made.
16. It was conceded in argument before me that the main difference on the facts of this case was that if a deportation order had been made then it was accepted that the claimant would have been excluded from entering the United Kingdom for a minimum of 10 years. After that 10-year period expires, the applicant is then free to make an application to come back into the country but that may be refused on normal grounds. The application will be considered in light of all the circumstances then prevailing, although the Secretary of State would still have regard to the fact that a deportation order had previously been made as a relevant factor. In the case of an exclusion order, however, the exclusion is indefinite. Again, in my judgment, that does not actually assist the claimant since, first of all, there is no minimum period given in the exclusion order that means the claimant is now free, if he so chooses, to make submissions that the exclusion order should be lifted if he wished to come back before the 10-year period, and secondly he is in exactly the same position after the 10-year period.
17. The claimant also accepts that an exclusion order that has been framed in terms that it has a minimum period of 10 years, so it would, effectively, mirror the deportation order, would not be sensibly capable of challenge. That, in my judgment, puts an end to this claim. Nevertheless, I have gone on to consider whether or not there was any procedural unfairness in the present case. It is absolutely right that there is authority which very clearly says a decision-maker must have regard to all material considerations and must also have actual knowledge of the material facts. It is not good enough that someone in the department knows about it. As I have indicated, on this occasion, the Ministerial Briefing was short. That lead me to a wider consideration of the principles of natural justice.
18. It is axiomatic that all persons are entitled to a fair hearing and all persons are entitled to an opportunity properly to put their case. However, what is fair depends upon the circumstances of the individual case and the legal framework within which those decisions are taken. In the present case, as I have already indicated, the claimant had a deportation order made against him. He then went through an appeal process, which he was entitled to do. All of the representations that could be made on his behalf were fully considered by an independent tribunal. His application for a reconsideration of the adverse decision of that tribunal was rejected. It was determined that his exclusion was conducive to the public good. It was determined that there were no human rights factors which overrode that conclusion and, by his actions, the claimant sought to avoid the consequences of the deportation order which had been upheld being applied to him.
19. It seems to me that good administration inevitably requires in such circumstances that persons who would have been deported had they not left the United Kingdom should be subject to, as a minimum, the same exclusion as they would have been under the deportation order. In my judgment there was no further requirement for the Secretary of State to seek yet further representations or to wait until such representations had been received before making her decision. That is not required as a matter of natural justice in the present circumstances where the claimant has been through a full appeal process in which the entire claim has been reconsidered in detail, where the Secretary of State's position, through the UKBA, has been explained in detail, the claimant's submissions have been rejected and the claimant's solicitors have been notified of the intention to apply for an exclusion order against the claimant but no further representations have were made.
20. As such, I would not accept any submission that the procedure actually adopted in this type of case was procedurally unfair. Further, it seems to me that the claimant is in no worse a position now than he would have been if he had made representations to the Secretary of State before the exclusion order was made. Any representations made before the exclusion order would have to be that, even taking account of the policy that has been annunciated by the government, this applicant should be allowed back into the country presumably because there were compelling compassionate grounds which meant that he should be treated differently to other persons convicted of serious drug offences. It may be thought that it would be a formidable task for this claimant to succeed in persuading the Secretary of State not to apply an exclusion order given the terms of the policy but in principle such an application could succeed in the right case. However, this claimant is in no worse position now that the exclusion order has been made. The process is exactly the same if he now made an application to have the exclusion order lifted. The fact of the order having been made does not count against him. He would have to persuade the Secretary of State that, notwithstanding the terms of the policy, on the facts of his case, he ought to be allowed back into the United Kingdom. So I cannot see that there is actually any prejudice to the claimant on the facts of this case.
21. If follows from what I have said that I think the application fails.
22. I should add that, if I had been persuaded that there was some kind of procedural unfairness in principle, given that there was no evidence put before me that there was any significant or material change of circumstances and given the clarity with which the policy was stated, I would have concluded that no remedy should have been given to this claimant in the exercise of my discretion. It seems to me that those people who are convicted of drugs offences should know that, as stated, the policy will be applied with rigor. As I have said, the claimant is always free to make a further application in due course and remains free to do so after this particular judgment.
23. Notwithstanding the fact that I have roundly rejected the claimant's arguments, for the second time today I would like to thank both counsel for the succinctness of their submission and the fact that they were not only very eloquently argued but they grappled directly with the issues and I was very impressed by those arguments.
24. MISS ANDERSON: I am most grateful, my Lord. I do make an application for my costs, to be assessed if not agreed, in the usual way.
25. MR SAIFEE: My Lord, I do not think there is much I can say to that.
26. THE DEPUTY JUDGE: The defendant's costs to be paid by the claimant, to be assessed on a summary basis if not agreed. Thank you both. I meant what I said, it is so refreshing to hear such succinct and cogent arguments.