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