Practice and Procedure


PUBLISHED February 19, 2003

Where the Court of Appeal had quashed an order recommending deportation, the Home Secretary was obliged, when exercising his separate jurisdiction under s.3(5)(a) Immigration Act 1971, to consider the prior reasoning of the Court of Appeal and explain, however shortly, what he made of it. If he disagreed with it, he had to explain, however shortly, why he disagreed with it.Appeal by the claimant ('M') against the decision of the Immigration Appeal Tribunal ('IAT') on 25 June 2002 by which it dismissed M's appeal against the determination of the adjudicator dismissing his appeal against the decision of the Home Secretary to deport him pursuant to s.3(5)(a) Immigration Act 1971, on the ground that his deportation was conducive to the public good. M was a Bangladeshi citizen who was granted leave to enter the UK on 11 August 1994 and indefinite leave to remain on 19 January 1998, on the basis of his marriage to a British citizen. On 28 June 2000, M was convicted of three charges of indecent assault of two girls, sentenced to a term of imprisonment, made subject to an order for extended supervision under s.44 Criminal Justice Act 1991 and recommended for deportation. On 6 February 2001, on appeal against sentence, the Court of Appeal (Criminal Division) set aside the recommendation for deportation, on the grounds that it was disproportionate to the object of preventing crime in the UK. The Home Secretary then decided to deport M under the separate provisions of s.3(5)(a) of the 1971 Act. M was granted leave to appeal on the ground that the appellate authorities, and before them the Home Secretary, had failed properly to take account of the decision and order of the Court of Appeal to quash the recommendation for deportation. He sought renewed permission to appeal on the further ground that the legal inhibitions that restricted the Home Secretary's power to deport (on conducive grounds) an alien who enjoyed rights under European Union law should apply with no less force in the case where the putative deportee had no EU rights at all.HELD: (1) There was no basis whatsoever for applying a presumption in favour of the criminal court's decision not to recommend deportation. However, when he came to his own jurisdiction under s.3(5)(a) of the 1971 Act in a case such as this, the Home Secretary had to consider the prior reasoning of the criminal court and explain, however shortly, what he made of it. If he disagreed with it, he had to explain, however shortly, why he disagreed with it. This was no more than an elementary application of the Home Secretary's duties of fairness and good administration imposed upon him by common law (Nazari (1980) 2 CAR (S) 84, R v Secretary of State for the Home Department, ex parte Ali Dinc (1999) INLR 256 and Samaroo v Secretary of State for the Home Department (2001) EWCA Civ 1139 considered). (2) The Home Secretary was, however, entitled to disagree with the court without recourse to new facts or different considerations. (3) Neither the Home Secretary nor the appellate authorities had followed the correct approach, as outlined above, in this case. There was no reasoning that engaged the Court of Appeal's view. The IAT decision could not stand. (4) The present case involved no exercise whatever of rights arising under EU law and there was no warrant on principle or authority for the court to act as if it did. The second ground of challenge therefore failed.Appeal allowed. Application for permission to appeal dismissed.

[2003] EWCA Civ 146