England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

		Royal Courts of Justice The Strand London
		7 June 2000

Wednesday 7 June2000

1. MR JUSTICE SULLIVAN: The applicants in both of these cases are "overstayers" (ie persons who have remained in the United Kingdom unlawfully after the expiration of leave to remain).
2. The Secretary of State made a deportation order in respect of each of the applicants as long ago as 1985. In 1998 both applicants invited the Secretary of State to revoke those deportation orders. The Secretary of State refused to do so and said that he would proceed with deportation. Those decisions are the subject of these proceedings.
3. To set the scene it is helpful to set a brief chronology of events in each case.
4. Mr Chew
5. Mr Chew first came to the United Kingdom on 16 September 1980 and was given 12 months' leave to enter as a student. He went home for a short visit, probably at the end of July 1981, and returned to the United Kingdom on 27 September 1981, when again he was given leave to enter for 12 months as a student.
6. He was not a diligent student and on 20 October 1983 he was refused further leave to remain. An appeal against that refusal was dismissed by an adjudicator on 6 April 1984 and on 17 May 1984 he was told, presumably by letter, to leave the United Kingdom and advised that he would be liable to deportation if did not.
7. What happened next is explained in a letter dated 21 August 1987 to Mr Chew's Member of Parliament from Mr O'Brien, the Parliamentary Under Secretary of State at the Home Office:

"Mr Chew. a Malaysian national, arrived in the United Kingdom on 27 September 1981.... On 17 May 1984, Mr Chew was directed to leave the United Kingdom immediately and advised of his liability to deportation should he fail to do so.

Mr Chew did not embark as directed. In the absence of any known compassionate factors, he was served on 4 February 1985 with notice of the decision in principle to deport him as an over-stayer. Notice of that decision was returned by the Post Office to the Home Office on 6 February 1985 marked 'gone away'. You will appreciate that the onus is on the applicant to notify the Home Office of any change in circumstances. However, Mr Chew failed to notify any such change. Attempts were made to locate Mr Chew by way of letters to his two previous residential addresses [which are set out]....

However, these enquiries proved fruitless.... As there was no evidence of Mr Chew having embarked voluntarily, a deportation order was signed against him on 11 December 1985. However, as Mr Chew's whereabouts were unknown, the deportation order could not be served on him.

Nothing further was heard from or about Mr Chew until 2 March 1995 when Zelin & Zelin Solicitors requested leave to remain on an exceptional basis by virtue of his length of residence in the United Kingdom. On 24 April 1995, he was served with the deportation order and was interviewed by immigration officers...."

8. Certain details of the interview are set out and the letter continues:
9. "Consideration was given to the circumstances but they were not considered to be so compelling as to warrant discontinuing with deportation action against him.... Mr Chew's application for leave to remain on the basis of his length of residence here was refused on 7 July 1995. That decision carried no right of appeal. However, Mr Chew had the right of appeal against the proposed destination of the order and he exercised that right on 24 July 1995. That appeal was dismissed by an adjudicator on 5 June 1997 and an appeal to the Tribunal was dismissed on 30 September 1998."
10. In September 1998 further representations were made by Mr Chew's solicitors. Those representations placed particular reliance upon the fact that as from 2 June 1986 there had been a change in departmental practice as to the making of deportation orders relating to untraced overstayers. The change in practice was explained in DP 5/86 (to which I will return). The solicitors put it in this way:
11. "In 1995, relying upon the amnesty for unlawful residents with more than 14 years in the UK, he applied for indefinite leave. He then discovered that in 1985 the Home Office had made a secret deportation order against him after serving notice upon him in the wrong name and to the wrong address. The purpose of the secret deportation order procedure was to deny rights of appeal and the Home Office abandoned it in 1986 as unfair!"
12. In the light of that alleged unfairness and other detailed matters, including the fact that Mr Chew first arrived in the United Kingdom in 1980, not 1981, the Secretary of State was invited to revoke the deportation order. The Secretary of State declined to do so in a letter dated 23 October 1998:

"With regard to Mr Chew's claimed date of entry of 16 September 1980, I would firstly stress that no evidence of such entry has been submitted. Furthermore, if Mr Chew had indeed been in the United Kingdom for the period claimed it is nonetheless clear that he must have embarked at some point before returning on 27 September 1981 since on that date Mr Chew was landed and granted fresh leave to enter for twelve months as a student... [The] assertion that Mr Chew would qualify for indefinite leave to remain under the Long Residence Concession if one takes his arrival date as being 16 September 1980 rather than 27 September 1981 is incorrect. Had Mr Chew indeed arrived in September 1980 and subsequently spent less than six months absence from the United Kingdom before his return on 27 September 1981, he would still fail to benefit from the terms of the Concession. He was lawfully served on 4 February 1985 with notice of intention to deport him and thus had spent less than five years from his arrival to the commencement of enforcement action against him, and not the requisite fourteen....

....

The issue of the internal policy document known as DP 5/86 is not relevant to this type of case. That policy document essentially referred to the now abandoned practice of serving a notice of intention to deport solely on file, without sending a copy to the individual's residential address. Such a practice clearly denied the individual the opportunity to submit an appeal and has rightly been discontinued. This is not the case with Mr Chew. In his case, a notice of intention to deport was validly served to his last known address, no appeal was subsequently lodged and, in the absence of any evidence to suggest that he had embarked, a deportation order was obtained. In fact, this same procedure is still employed today and is both perfectly lawful and perfectly fair....

I have carefully reviewed that case in light of all the known circumstances but remain satisfied that Mr Chew's deportation is the correct course of action.... Consequently, I am not prepared to revoke the deportation order against Mr Chew nor allow him to remain in the United Kingdom on an exceptional basis."

13. There were further representation which led to a letter from the Immigration Service Headquarters dated 2 December 1998 which confirmed that the Secretary of State was not prepared to revoke the deportation order. The letter said that when the application for long residence was refused on 7 July 1995:
14. "Mr Chew had spent 20 years outside the United Kingdom as opposed to 13 years 6 months in this country."
15. The decision explained in these two letters is the subject of Mr Chew's application for judicial review.
16. Mr Popatia
17. Mr Popatia came to the United Kingdom from India on 31 March 1981 and was initially admitted as a visitor for seven days. Extensions were granted, but they expired on 12 June 1982 when he was due to leave for Belgium to visit a sick friend. He did not embark for Belgium.
18. What happened next is explained in a witness statement provided by Mr Grey, a Senior Executive Officer employed in the Immigration Service Enforcement Directorate of the Home Office and Head of the Directorate's Policy Unit. He says this in part:
19. "In his dealings with the Immigration and Nationality Directorate .... Mr Popatia [had given] his address as 31 Stratford Road, Thornton Heath, Surrey.... In August 1982, checks of Home Office records showed no trace of Mr Popatia having embarked and the case was therefore referred to the police for further enquiries to be made. These enquiries showed that Mr Popatia was not living at 31 Stratford Road but suggested he might be found at 86 Barrow Road, SW16. Further enquiries by the Immigration Service in February 1983 revealed that Mr Popatia had lived at the latter address but no longer did so."
20. On 16 February 1983 an immigration officer had visited 86 Barrow Road. The occupants were a Mr and Mrs Ramji. Only Mrs Ramji was at home. She claimed not to know the whereabouts of Mr Popatia, but admitted that she was his cousin.
21. Mr Grey's witness statement continues:
22. "In May 1985, it was decided to make a deportation order against Mr Popatia as an overstayer. Notice of that decision was served on file in June 1985 in accordance with the practice at that time. At the same time, a copy of the decision was also sent to Mr Popatia's last known address, 86 Barrow Road, London, SW16. No response was received to the latter and a deportation order against Mr Popatia was signed on 6 September 1985."
23. The investigations continued, as was explained in a letter to Mr Popatia's solicitors dated 16 April 1997:
24. "There was no further contact until 25 March 1986 when the Department of Social Security advised that Mr Popatia was residing at 19 Porchester Close, London SE5. On 28 June 1987 a visit was made to this address. The occupants were again Mr and Mrs Ramji. Mrs Ramji claimed to have had no contact with Mr Popatia for the last 4 years and believed that he had embarked for Belgium."
25. Nothing more was heard of Mr Popatia until his former solicitors wrote to the Home Office in October 1995, seeking clarification of his status in the United Kingdom. The Immigration and Nationality Department replied by letter dated 4 March 1996. Having summarised the history (which I have set out above), the letter said:
26. "In order that further consideration may be given to his immigration status and whether it would be right to enforce the deportation order, I would be grateful if you could forward the following ...."
27. A list of detailed information is then set out. The letter concluded:
28. "You should reply within 28 days of the date of this letter. Any decision to deport your client would attract a right of appeal to the independent appellate authorities."
29. Further information was supplied, which included the claim that the applicant had lived an 19 Porchester Close with his sister (Mrs Ramji) and her husband between 1985 and 1987.
30. The application for leave to remain was refused in a letter dated 16 April 1997. That letter set out the history of the matter and said:

"The Secretary of State has given full and careful consideration to your client's circumstances. Where someone has been resident in the United Kingdom for a period of 14 years or more, leave to remain under the Long Residence Concession is considered. However your client cannot benefit from this Concession as he has been the subject of a deportation order since 6 September 1985. He has deliberately set out to evade immigration control. He clearly stated his intention to embark, but failed to do so. He has claimed that his cousin is his sister. A visit to the address at which Mr Popatia admits he was residing resulted in an immigration officer being advised that the occupants (his cousin) had not seen him for 4 years.

....

Your client has today been served with a deportation order against which he will have a right of appeal against destination only."

31. A destination appeal was made which sought to raise wider issues, going to the merits of the decision to deport. The appeal was finally rejected by the Immigration Appeal Tribunal in February 1998.On 27 March 1998 the applicant's present solicitors wrote to the Secretary of State, saying that the letter of 4 March 1996 had given the applicant a legitimate expectation that he would be given a full right of appeal against deportation. The Secretary of State was invited to refer the case to an adjudicator under section 21 of the Immigration Act 1971. He declined to do so, but said that he would consider further representations. Further representations were made inviting the Secretary of State to revoke the deportation order. He declined to do that. His decision was confirmed in a letter from the IND dated 16 September 1998:
32. ".... the onus was on Mr Popatia to keep the Secretary of State informed of his whereabouts. This he failed to do and consequently the notice of intention to deport was served on file in accordance with the policy in practice at that time. In the circumstances the Secretary of State is not persuaded that the deportation order signed against Mr Popatia should be revoked."
33. It is this decision which is challenged by Mr Popatia.
34. The Long Residence Concession
35. It is no coincidence that these two applicants from whom the immigration authorities had heard nothing for so many years came forward in 1995 seeking to regularise their position in the United Kingdom. Both were hoping to benefit from the Long Residence Concession. Under the Immigration Rules (HC 169 in force when the deportation orders were made in 1985, and HC 395, in force when the applications for leave to remain were considered after 1995)
36. "Deportation will normally be the proper course where a person has .... remained without authority."
37. In all cases the public interest is balanced against the compassionate circumstances of the individual case. The Immigration Rules do not provide for the grant of indefinite leave to remain solely on the basis of long residence in the United Kingdom. The position of such applicants is dealt with in a non-statutory discretionary concession, which is explained in Chapter 18, entitled "The Long Residence Concession", in the Immigration Directorates' Instructions dated June 1998 (the "IDI").
38. Paragraph 1.1 of the IDI sets out the background:

"On 14 October 1969, the United Kingdom ratified the European Convention on Establishment, Article 3(3) which provides that nationals of any contracting party who have been lawfully residing for more than 10 years in the territory of another party may only be expelled for reasons of national security or for particularly serious reasons relating to public order, public health or morality. Home Office practice has been to extend this provision in three respects:

to include all foreign nationals;

to grant indefinite leave rather than simply refrain from removing such a person; and

to allow those who have been here illegally to benefit."

39. Paragraph 2 sets out the considerations which will be taken into account:

"When considering an application, where a person has 10 years or more continuous lawful residence, or 14 years continuous residence of any legality, indefinite leave to remain should normally be granted in the absence of any strong counter-vailing factors, such as:

....

deliberate and blatant attempts to evade or circumvent the control, for example, by using forged documents, absconding, contracting a marriage of convenience etc."

40. Certain advice is given in respect of criminal offences and the passage concludes:
41. "Where the continuous residence is in excess of 14 years unless the countervailing factors are exceptionally serious indefinite leave should normally be granted."
42. Paragraph 4 deals with "Unlawful Residence" and says in part:
43. "Indefinite leave should normally be granted to a person who has completed a continuous period of residence of 14 years or more, regardless of its legality. Leave should only be refused if there are serious countervailing factors."
44. Paragraph 5 deals with what is continuous residence. Short absences abroad do not break continuity. Paragraphs 6 deals with "time spent following the service of notice of intention to deport". It says:

"Where a person has been served with a notice of intention to deport account should be taken of the decision in the case of Ofori. This judgment held that the Secretary of State was entitled to conclude that the extra period of residence gained by the appellant while pursuing his appeal should not count towards the 14 years continuous residence of any legality required under the LRC.

However, each case should be considered on its merits and the length and quality of the overall period of residence should still be taken into account, together with all other relevant factors and balanced against the need to maintain an effective control."

45. The IDI are now made available to the public.
46. DP 5/86
47. As I have mentioned above, departmental practice as to the service of notice of intention to deport and the subsequent making of deportation orders changed in June 1986. DP 5/86 explained why and described both the old and the new procedures. As the covering memorandum explained:

".... DP 5/86 .... gives guidance on the handling of cases in which the subject is liable to deportation, and in particular to 'missing over-stayer' cases....

....

3. Attention is drawn to the following points:

....

ii.With effect from 2 June 1986 it has not been Departmental practice to seek Deportation Orders in respect of untraced overstayers. Orders under section 3(5)(a) of the Act are now sought only after the person has been traced, interviewed, and full account has been taken of all circumstances relating to the case."

48. The previous practice is described in DP 5/86:

"Previous practice

F3 Paragraph 3(6) of the Immigration Appeals (Notices) Regulations 1984 states that the Secretary of State may serve a notice of intention to deport by recorded delivery at an individual's last known address. However, where there is clear evidence that the person no longer resides at his last known address and his current whereabouts are not known the Secretary of State is absolved of this requirement and may rely on paragraph 3(4) of the Regulations which permits in effect the notice of intention to deport to be 'served' on file. Until May 1986 a good proportion of notices of intention to deport were thus served. It was also usual practice to submit cases to Ministers for signature of a deportation order in cases where an individual's current whereabouts were not known.

F4 The practice was effective for detaining and removing most of the missing overstayers who were traced. In practice, however, only about 20% of the orders made were enforced. The service of notice on file, however, effectively removed the substantive right of appeal against deportation and amounted to finding a person guilty in his absence. Additionally a good deal of nugatory effort was expended on action against a large number of overstayers who were either found to have embarked or for other reasons could not be traced. Moreover, in a sizeable number of cases the orders were later found to be invalid and had to be revoked. In the case of those who were traced and not found to be the subject of valid deportation orders, the circumstances of the case had often changed to such an extent that it was considered appropriate for the Secretary of State to exercise his discretion in their favour and to revoke the deportation orders.

The introduction of revised procedures

F5 Both the above practices were discontinued in May 1986 when Ministers approved proposals for revised procedures designed to deal with missing overstayers in a more effective and equitable way. The revised procedures, described in detail in the rest of this section, ensure that each case is properly considered before a notice of intention to deport is issued and that all overstayers are afforded the opportunity of having their case reviewed by the independent appellate authorities."

49. The revised procedures contain elaborate provisions which are, in summary, designed to ensure that after 2 June 1986 those in the position of these applicants actually receive a pro-forma letter (DO 29) which gives warning that deportation is being considered and invites representations from the overstayer. Even where there is "clear evidence" that a DO 29 has actually been received, but there has been no response to it, careful consideration is given as to whether it would be right to make further enquiries or to refer the case to higher authority for service of a notice of intention to deport (APP 104) and, if the latter, to consider what further steps should be taken by way of service.
50. In the absence of such "clear evidence", that is to say in cases similar to those of the present applicants where, despite appropriate inquiries "the trail has gone cold", the revised practice is neither to serve notice of intention to deport, nor to lay a deportation order before ministers for signature.
51. Paragraph F47 deals with "cases dealt with under the old procedure":
52. "There will from time to time be cases in which the notice of intention to deport was either sent to an individual's last known address or placed on file where the current whereabouts of the overstayer were not and are still not known. Unless there is clear evidence to show that the APP 104 was received, eg the lodging of an appeal, in which case a deportation order should be sought, caseworkers should consider whether there are investigative channels which might be pursued in the field by IS using the criteria set out in paragraph F27 above."
53. Paragraph F48 deals with "Action when a missing overstayer is traced". The first part of paragraph F48 deals with the action to be taken when a missing overstayer is traced. Paragraph F48 continues:
54. "Where a missing deportee is traced (and detained, as necessary) and declines to make a voluntary departure by waiving any s17 appeal right, the immigration officer concerned should prepare a full report and refer the case back .... to review the deportation order and any decision to detain, in the light of the current facts and any representations made on the deportee's behalf. The presumption should be to enforce the order.... although careful consideration should be given to any new compassionate factors which may mitigate against deportation or which may argue in favour of re- service of the notice of intention to deport."
55. The applicants' submissions
56. On behalf of both applicants it was accepted that the pre-DP 5/86 procedure of serving on the file was lawful: see the Court of Appeal's decision in 1976 in Makhan Singh v Secretary of State for the Home Department [1995] Imm AR 299, per Lord Denning MR at page 301. In Rhemtulla v Immigration Appeal Tribunal [1979 - 1980] Imm AR 168 Bridge LJ, (as he then was) emphasised that the decision in Makhan Singh was both decisive on the point and binding: see page 174. However, it was submitted on behalf of the applicants that the old procedures were acknowledged as being unfair in DP 5/86 because they effectively removed the right of appeal "and amounted to finding a person guilty in his absence". In a nutshell, it was submitted on behalf of the applicants that it was not enough for the Secretary of State to say that the 1985 deportation orders were made in accordance with procedures which were lawful at the relevant time. He should have recognised that those procedures were subsequently acknowledged to be unfair, so that his only reasonable course was to revoke the deportation orders and to consider whether fresh orders should be made. The applicants would then be in a position to claim the benefit of the long residence concession.
57. Implicit in that submission was an acceptance that service of a notice of intention to deport and/or the making of deportation orders in 1985 "stopped the clock", so that the applicants could not claim the benefit of the long residence concession, even though there was no evidence that the notices or the orders had actually come to the applicants' attention.
58. In support of the proposition that service of notice of intention to deport is sufficient to "stop the clock" Mr McCullough, on behalf of the respondent, cited the Court of Appeal's decision in Musah v Secretary of State for the Home Department [1995] Imm AR 236.On behalf of Mr Chew, Mr Scannell, whose submissions were adopted by Miss Webber on behalf of Mr Popatia, argued that although the proposition advanced by Mr McCullough had hitherto been accepted, the Court of Appeal's decision in Musah was based upon the applicants' actual knowledge of the deportation order "stopping the clock" and was not binding authority for the proposition that service, which did not come to an overstayer's attention, "stopped the clock" for the purposes of the long residence concession. He referred to the express terms of the IDI, which I have set out above.
59. There are therefore two issues of principle applicable to both cases which have to be resolved:
60. (1) Was it unreasonable for the Secretary of State to refuse to revoke the 1985 deportation orders in the light of what is said in DP 5/86 about the fairness of the procedures which were applied to the applicants at that time?
61. (2) Whether or not the 1985 orders are revoked, was the Secretary of State right to proceed upon the basis that they "stopped the clock" for the purposes of the long residence concession and to proceed with enforcement action?
62. Before turning to these two issues, it is convenient to deal with two detailed arguments: error of fact and legitimate expectation.
63. Error of Fact
64. In the case of Mr Chew, Mr McCullough accepted that if the clock had not been stopped by the 1985 deportation order, so that Mr Chew was able to claim the benefit of 14 years' residence by 1995 then, although his conduct was not blameless, it was not clear that there were any "strong" or "serious" countervailing factors in terms of paragraphs 2 and 4 of the IDI. I have set out above the relevant extracts from Mr O'Brien's letters of 21 August 1987 and 23 October 1998. In the first letter, Mr O'Brien said that Mr Chew arrived in September 1981. The applicant's solicitors replied, pointing out that he had first arrived in September 1980 and since he had left for only a short time, the 14-year period commenced in September 1980 and was not broken thereafter: see paragraph 5 of the IDI.
65. In my view it is plain from Mr O'Brien's reply dated 23 October 1998 that he was not contending that because Mr Chew had arrived in the United Kingdom in September 1981 he had not been continually resident here for 14 years when the deportation order was served in April 1995. He was saying that, whether Mr Chew arrived in 1980 or 1981, he was not entitled to the benefit of the 14-year concession because service of notice of intention to deport in February 1985 had "stopped the clock".
66. Mr Scannell relied also on the reference to "13 years and 6 months" in the letter of 12 December 1998. Mr McCullough conceded that that reference should have been "13 years and 9 months" as at 7 July 1995, but submitted, in my judgment correctly, that nothing turned on that point. In my view, it is clear that this letter is not dealing with the 14-year point, but with the extent to which Mr Chew had developed ties with the United Kingdom. The point made in the letter of 12 December 1998 holds good whether the period is 14 years and 9 months (less a short visit) as from 1980, or 13 years and 9 months as from 1981. In July 1995 Mr Chew had spent a longer period out of the United Kingdom than within it. I therefore reject the submission that the Secretary of State's decision in respect of Mr Chew proceeded on an error of fact. Lengthy representations had been made on behalf of Mr Chew, so that by the time the Secretary of State finally took his decision he was in possession of all the relevant facts.
67. Mr Popatia
68. The position of Mr Popatia in relation to the 14-year concession is somewhat different, as conceded by Miss Webber. I have referred to the fact that the letter dated 16 April 1997 alleges that "a deliberate attempt was made to evade immigration control". That is not necessarily fatal to Mr Popatia's case under the 14-year concession. It will be noted from the IDI that not every attempt to evade immigration control is sufficient to defeat a claim based on 14 years' residence. Those here lawfully will normally be entitled to indefinite leave to remain after 10 years. Thus the 14-year concession is by definition applicable to those who have been guilty of some breach of immigration controls. Although there are undoubtedly "countervailing factors" in Mr Popatia's case, the Secretary of State has not found it necessary to consider whether they are sufficiently strong or so serious as to outweigh the general presumption in favour of granting permission to remain after 14 years' residence, because he has taken the view that, as in the case of Mr Chew, the 1985 deportation order "stopped the clock".
69. Legitimate Expectation
70. Miss Webber submitted that the statement in the letter dated 4 March 1996:

"Any decision to deport your client would attract a right of appeal to the independent appellate authorities"

71. gave rise to a legitimate expectation on the part of the applicant that he would be granted such a right of appeal.
72. On behalf of the Secretary of State it was initially submitted that the right of appeal referred to in the letter was the right of appeal under section 17 of the 1971 Act against destination. I am unable to accept that submission. There is a clear distinction in sections 15 and 17 of the 1971 Act between appeals against decisions to make deportation orders and appeals against directions for removal (which need not necessarily follow a deportation order) on destination grounds.
73. That distinction is reflected in the Directions for Removal notice which was served on Mr Popatia. Under the heading "Right of Appeal" it is said:
74. "You have no appeal against deportation, but you are entitled to appeal against the removal directions under Section 17(1)(b) of the Immigration Act 1971 to the appellate authorities on the ground that you ought not to be removed to the country specified in the directions, but ought to be removed to some other country or territory specified by you."
75. The statement in the letter of 4 March 1996 was included in the letter in error. Did it give rise to a legitimate expectation? Miss Webber submits that it did. She refers to the well-known passage in the speech of Lord Fraser in Attorney General of Hong Kong v NG YUEN SHIU [1983] 2 AC 629, 638:
76. ".... when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty."
77. She submits that it is not necessary for there to be reliance on the representation: see de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th Edition, 573. Insofar as it was possible to rely on the assurance that there would be a right of appeal, the applicant did so by, unsuccessfully, attempting to persuade the appellate authorities to consider the wider merits of deportation in the context of his destination appeal under section 17.
78. Mr McCullough relied on Jaramillo-Silva v Secretary of State for the Home Department [1994] Imm AR 352 as authority for the proposition that an erroneous statement that there would be a right of appeal against a decision to deport can be corrected. In that case Simon Brown LJ said at page 357:
79. "I accept.... 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)."
80. Miss Webber seeks to distinguish that case on the basis that the letter contained a plain error. The applicants never believed they would have a right of appeal under section 3(5). By comparison, in the present case, because of the acknowledged unfairness of the pre-DP 5/86 procedures and the statement in paragraph F48 to the effect that re-service of notice of intention to deport may sometimes be appropriate, it was not obvious that the reference to a right of appeal was a mistake.
81. In my judgment, it would have been apparent to any informed reader of the letter as a whole that the unqualified reference to a right of appeal must have been a mistake. The letter had requested a considerable amount of detailed information for the purpose of considering "whether to enforce the deportation order" that had been made in 1985, and against which there was no right of appeal. In dealing with the applicant's case, the Secretary of State was bound by statute and the rules made thereunder. He could not confer a right of appeal where none was provided under the statutory code. To confer a right of appeal against a decision to deport Mr Popatia, the Secretary of State would have had to revoke the 1985 order and re- serve notice of intention to deport. Anyone reading the letter could not sensibly have believed that the Secretary of State was promising to adopt that course, come what may, in advance of receiving all the detailed information which he had requested in order to consider whether it would be right to enforce the 1985 deportation order.
82. Whilst reliance is not essential, lack of reliance will often be relevant in deciding whether or not it would be fair and/or in the interests of good administration to correct a mistake. There was no reliance here. The allegation that the applicant had a legitimate expectation as a result of the letter of 4 March 1996 was not made until 27 March 1998. That was nearly a year after the mistake had been corrected in the letter of 16 April 1997, which had made it plain that the only possible appeal was one under section 17. It follows that I reject Mr Popatia's challenge based upon legitimate expectation.
83. I turn to the two issues of principle which I have set out above.
84. Revocation
85. (1) Was it unreasonable of the Secretary of State to refuse to revoke the 1985 orders in the light of what is said in DP 5/86 as to the fairness of the procedures that had been applied to the applicants?
86. It is said that the deportation orders were made against the applicants without their knowledge. Fairness requires that they should have had some right of appeal against those orders. The only way of conferring that right would be to revoke the orders and, if it was thought appropriate, bearing in mind the compassionate factors, including in particular the long residence concession, to re-serve notices of intention to deport.
87. A similar argument was advanced before Dyson J in R v Secretary of State for the Home Department, ex parte Yurteri [1995] Imm AR 296. In 1983 notice of intention to make a deportation order had been served on file. A deportation order was made in 1985 and likewise served on file. The applicant came to the notice of the authorities in 1994. He applied for indefinite leave to remain. The Secretary of State refused to revoke the deportation order. It was argued on an application for permission to apply for judicial review that the Secretary of State's decision was Wednesbury unreasonable because it had been recognised that the earlier procedures were unfair. At page 299 Dyson J said:
88. ".... I see no basis upon which it can be properly argued as Wednesbury unreasonable. The Secretary of State stated in his letter that he had taken into account all the representations made. These will have included his knowledge of the length of time the applicant has been in the United Kingdom and the nature of his ties and so on. I find it impossible to come to a conclusion that there was perversity in the decision reached."
89. Dyson J refused the application for permission to apply for judicial review.
90. It is submitted by Mr Scannell and Miss Webber that, since Yurteri was an application for permission, Dyson J would not have heard full argument and, although there is a reference to the unfairness of the earlier procedures, there does not seem to have been any detailed analysis of the terms of DP 5/86.
91. The problem with that submission is that a detailed analysis of DP 5/86 leads one to paragraph F48, which gives advice as to what should be done when a missing deportee (original underlining) is traced. The presumption is that the deportation order will be enforced, but careful consideration must be given to any new compassionate factors which may argue in favour of re-service of the notice of intention to deport. Re-service necessarily implies revocation of the earlier order.
92. I reject Mr Scannell's submission that paragraph F48 is directed solely at missing deportees who have been served under the revised procedures. The revised procedures, which provide for full and up-to-date consideration to be given to all of the relevant circumstances, including the overstayer's representations before a deportation order is made, will have the effect of, inter alia, reducing the number of "missing deportees", the merits of whose cases will have to be reconsidered in the light of "new compassionate factors". At the time when paragraph F48 came into effect the only missing deportees would have been those who had been served with a deportation order under the old procedures, including those "served on file". As the years have passed, it is to be expected that a greater proportion of the missing deportees will have been dealt with under the revised procedures introduced by DP 5/86. There can be no doubt that the earlier procedures were open to criticism in terms of their fairness and efficacy. Those responsible for drafting DP 5/86 were only too well aware of those criticisms. They set them out in that document. In the light of those criticisms they had to decide what should be done when deportees who had been served under the old system were traced. It would have been possible for the authors of DP 5/86 to have taken the view that the earlier procedures were so unfair that the only proper course was to revoke any deportation order made under those procedures, and to re-serve notice of intention to deport in each and every case.
93. It is clear from paragraph F48 that they did not think it necessary to adopt that course. Bearing in mind the defects of the previous procedures, each case was to be given careful consideration to see if compassionate factors argued in favour of re-service. In my judgment, it cannot be said that this was an unreasonable or unfair response to the problem posed when those dealt with under the earlier procedures were eventually traced.
94. In the present cases, the Secretary of State adopted the approach set out in paragraph F48. He gave full consideration to all the circumstances, including in particular the compassionate circumstances, and decided not to revoke the 1985 deportation orders. Like Dyson J in Yurteri, I am unable to say that his decisions in 1998 were perverse. But, the decisions in the case of both applicants were based, inter alia, upon the premise that they were not entitled to the benefit of the 14-year concession because the clock had been stopped by the 1985 deportation orders.
95. Stopping the clock
96. (2) Was the Secretary of State right to proceed on the basis that the 1985 deportation orders stopped the clock for the purposes of the long residence concession?
97. Mr McCullough contented that the answer to this question was put beyond doubt by the Court of Appeal's decision in Musah. Having referred to earlier decisions of the Court of Appeal, Glidewell LJ (with whom the other members of the Court agreed) said this at page 244:
98. "Those decisions of this court seem to me to be binding authorities, so far as the Court of Appeal decisions are concerned, to the effect that if a deportation order has been made, or indeed if notice of the service of deportation order has been made, thereafter there can be no legitimate expectation under the 14-year concession."
99. This passage from Glidewell LJ's judgment should not be treated as though it was an enactment seeking to provide a general solution to a wide-ranging problem. The words must be considered in the context of the case that was before the court. The context was that, although earlier attempts to reach Mr Musah by post had not been successful, he had been in the United Kingdom for 13 years and 8 months when he was served personally with notice of the making of a deportation order. The three "binding authorities" referred to by Glidewell LJ were Hussain and anr v Immigration Appeal Tribunal and Secretary of State for the Home Department [1991] Imm AR 413; R v Secretary of State for the Home Department, ex parte Butt (unreported, CS, 25 March 1994); and Ofori v Secretary of State for the Home Department [1995] Imm AR 34.
100. In Hussain, the applicant not merely knew of the existence of deportation proceedings, he had appealed against the notice of intention to deport and his appeal had been dismissed. In that context it is readily understandable that Farquharson LJ is summarised by Glidewell LJ at page 244 as saying:

".... where a deportation order has been made there cannot be any legitimate expectation that if the subject of the deportation order succeeds in staying on in the United Kingdom long enough for 14 years in total to elapse, thereafter the policy will be applied in such a way as to allow him to remain."

101. In Butt Lord Cullen said:
102. ".... the Petitioner knew that a deportation order had been made, and accordingly the Respondent had taken a step which was incompatible with the granting of leave to remain in the country. In those circumstances he could no longer have any basis for a legitimate expectation of indefinite leave to remain in this country based on the prospect of his achieving a total of 14 years' continuous residence."
103. In Ofori, the applicant had appealed against a deportation order. The appeal process was somewhat protracted and the applicant completed 14 years' residence before it was concluded. Dillon LJ said:
104. "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."
105. The references in these three cases to the making of a deportation order or the service of a notice of intention to deport are all in the context of an applicant who has actually received the order or notice. A document of that kind having been brought to his attention, the applicant cannot then claim any legitimate expectation that if thereafter he continues to reside in the United Kingdom he will, after 14 years' residence, become entitled to the benefit of the long residence concession. It is easy to understand why an applicant's legitimate expectation that he, like others, will be able to benefit from the long residence concession is brought to an end by the receipt of a notice of intention to deport and/or of a deportation order. I do not understand, however, why a legitimate expectation should be ended by the mere existence of a document of which the person holding the expectation remains unaware, even though attempts have been made to bring it to his notice.
106. In Musah, Glidewell LJ regarded the three decisions which I have set out above as "binding authorities" for the proposition which he then expressed. Since the three decisions, like Musah, were concerned with the removal of a legitimate expectation, they were binding only to the extent that the making of a deportation order and/ or the service of notice of intention to deport, which had actually been brought to the attention of the person holding the expectation, would bring it to an end. Glidewell LJ's dicta should be considered in that context. I do not accept Mr McCullough's submission that I am bound by the decision in Musah to conclude that service of notice of intention to deport or the making of a deportation order under the old procedures where the documents were not brought to an applicant's attention is sufficient to bring the applicant's legitimate expectation to an end and thus stop the clock running.
107. Approaching the question from first principles, it is difficult to see how service of a notice or the making of an order of which the person holding the legitimate expectation is unaware can bring his expectation to an end. To the extent that the concept of legitimate expectation reflects the need for fairness in public administration, it would seem particularly unfair if an expectation could be ended by a document of which the person holding the expectation was unaware.
108. Looking at the IDI, I find no support for such a proposition. It is significant that the instructions are not silent on the point. Paragraph 6 of chapter 18 deals specifically with the position where time is spent following service of notice of intention to deport. Mr McCullough points to the word "served" in paragraph 6 and submits that this would on a legal approach include "service on file", which was permitted under the Immigration Appeals (Notices) Regulations 1972: see Regulation 3(4). There might have been some force in that submission if paragraph 6 did not draw attention to Ofori, and to that case alone. Ofori was concerned with an applicant who knew full well that deportation procedures had been commenced against him before the period of 14 years expired, but who then gained an extra period of residence while pursuing his appeal. For the reasons which I have attempted to set out above, it is readily understandable why such a person should not be able to benefit from the concession. Fairness cuts both ways. It would be most unfair if a person in Mr Ofori's position could gain an advantage by prolonging the appeal process.
109. Equally, "strong countervailing factors" might be found to exist in the case of someone who had taken active steps to evade the likely service of a notice of intention to deport: see paragraph 2 of chapter 18 of the IDI. Fairness would suggest that such persons should not be able to benefit from their conduct. There is nothing in chapter 18 of the IDI to suggest that someone who did not take such steps but who, for example, simply failed to notify the authorities of a change of address and so under the old procedure did not receive the notice of intention to deport and who was nonetheless deemed to have been served under the 1972 Regulations, should not be entitled to the benefit of the concession. If there was such a significant limitation upon the concession, one would have expected it to have been spelt out in the clearest possible terms in a document which has been made available to the public.
110. In the letter of 21 August 1987 Mr O'Brien accepts that Mr Chew did not receive notice of the order of 4 February 1985. There is no suggestion in the letters dealing with Mr Popatia's case that he actually received any notice in 1985. When I asked Mr McCullough for the rationale underlying the Secretary of State's contention that service of the notices in 1985 stopped the clock, even if those notices had not been received by the applicants, he relied, first, upon the decision of the Court of Appeal in Musah, and, second, upon the proposition that to adopt any date other than the date of service would be to put a premium upon evasion. There would be a strong incentive to "go to ground".
111. I have dealt with the Court of Appeal's decision in Musah above. I am not persuaded by the latter argument. Those devising the revised procedures set out in DP 4/86 must have realised that they would result in a number of cases where overstayers who went to ground would not be served with notice of intention to deport. Chapter 18 of the IDI was framed against this procedural background. It must therefore have been appreciated that such persons would in due course be able to benefit from the long residence concession because in their cases the clock would not have been stopped. Thus the combined effect of the revised procedures set out in DP 4/86 and chapter 18 of the IDI already give an incentive to "go to ground" in order to accumulate 14 years' residence. Such conduct may be thought to be objectionable in principle, but the long residence concession takes a pragmatic view: that in the absence of strong countervailing factors such as deliberate and blatant attempts to circumvent immigration controls, those who have remained here for 14 years should be given indefinite permission to remain.
112. Against this policy background I can see no reason in principle why service of a notice of intention to deport, which does not come to an applicant's attention, should be treated as stopping the clock. That, in my view, would place an unwarranted gloss on the IDI, a gloss which I am not bound to place by the decision of the Court of Appeal in Musah.
113. The present procedures are designed to ensure, so far as is practically possible, that an applicant for permission to remain will know of the existence of any notice of intention to deport and hence will know that the clock has been stopped in his case.
114. Mr McCullough drew attention to the following passages in the judgment of Dillon LJ at page 37 in Ofori:

"I do not accept [counsel for the applicant'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."

115. Again, those observations must be set in context. Dillon LJ had earlier referred to the genesis of the 14-year rule at page 46:
116. "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."
117. At the time of the Ofori decision in 1994, the IDIs had not been published. They are now published. One of the important purposes of publishing such departmental instructions is to enable members of the public dealing with the department (and immigrants in particular) to know where they stand. Although the instructions deal with a non-statutory discretionary concession, the immigrant can see what considerations will be taken into consideration and what policy will in normal circumstances be applied to his case. Whilst it is "not for the court to make rules for the Secretary of State to follow in applying his policy", and departmental guidance contained in documents such as the IDI should not be construed as though it was contained in an enactment, if a policy approach is clearly set out in a document such as the IDI, an immigrant has a legitimate expectation that it will be followed unless there are good reasons for not doing so in his particular case. If it is proposed not to follow the normal policy, fairness will probably require that the applicant should be warned of the proposed change of policy, be told why it is not thought appropriate to apply the normal policy in his case, and be given at least an opportunity to make representations as to why the normal policy should prevail. There is no suggestion by the Secretary of State, in the letters to which I have referred above, that he should not apply the normal long residence concessionary policy to these applicants, save for his contention that the clock has been stopped.
118. Conclusions
119. (1) The IDI does not state that the clock will be stopped by service of a notice of intention to deport or the making of a deportation order which has not come to the applicant's attention.
120. (2) The Court of Appeal decision in Musah is binding authority for the proposition that if a deportation order has been made or notice of intention to deport has been given, and that order or notice has come to the attention of the applicant for indefinite leave to remain, he can thereafter have no legitimate expectation under the 14-year rule. Reading Glidewell LJ's words in their proper context, he did not intend to advance any broader proposition, which would have been obiter, given the facts both in Musah and the cases on which he relied as "binding authorities".
121. (3) There is no reason in principle why a person having a legitimate expectation that a particular policy approach will be adopted should have that expectation removed by service of a notice or the making of an order if he is unaware of the existence of that notice or order. Common sense suggests that his expectation will remain the same. Fairness suggests that he should be made aware of the document or the event that is said to remove his expectation.
122. (4) Insofar as this conclusion may be said to give an incentive to overstayers to "go to ground", that incentive already exists as a result of the combined effect of the revised procedures in DP 5/86 and the terms of the concession explained in the IDI. Deliberate or blatant evasion of service of a notice of intention to deport can be, and is, dealt with in the IDI: see paragraph 2.
123. For these reasons I conclude that, although the Secretary of State was entitled to refuse to revoke the 1985 deportation orders, he erred in proceeding upon the basis that they "stopped the clock" so that these applicants could not in any event benefit from the 14 year long residence concession.
124. Whether the applicants fall within the terms of the 14 year concession on the basis that the clock did not stop in 1985 is a matter for the Secretary of State to determine. If his answer is in the affirmative, he will have to decide whether it would be right to enforce the 1985 deportation orders in the light of that fact and the policies that are set out in the IDI.
125. His decisions in 1998 must be quashed and these applications for indefinite leave to remain redetermined in the light of this judgment.
126. It only remains for me to thank all counsel involved for their very helpful and comprehensive submissions.