R v Secretary of State for the Home Department, Ex parte Oladehinde (Oladehinde, Ex parte, R v Secretary of State for the Home Department, Ex parte Alexander)

A statutory power entrusted to a minister may ordinarily be exercised on the minister’s behalf by an appropriate civil servant within the department. Parliament may require personal exercise, but such a restriction must appear expressly or by necessary implication.

Immigration inspectors are Home Office civil servants. Suitably senior and experienced inspectors may therefore take initial decisions to deport overstayers and persons who breach conditions of leave, provided that their statutory duties create no conflict and they have not previously participated in the particular case.

An appeal under section 5(1) of the Immigration Act 1988 concerns whether the facts establish the legal existence of the power to deport. Challenges to the identity of the decision-maker or the propriety of the decision-making process concern the exercise of power and belong in judicial review proceedings.

Two immigrants were served with notices of intention to deport. One had worked contrary to a condition of his leave, while the other had overstayed. In each case an immigration officer interviewed the immigrant and reported orally by telephone to an immigration inspector, who authorised service of the notice on behalf of the Secretary of State.

The Immigration Appeal Tribunal ultimately upheld the proposed deportations. The Divisional Court granted certiorari because it considered that the Secretary of State could not authorise immigration inspectors to make the decisions. The Court of Appeal reversed that decision: [1990] 2 WLR 1195.

The House considered whether inspectors could lawfully exercise the Secretary of State’s power, whether the decisions had truly been made by the inspectors, and whether those questions fell within the restricted statutory appellate jurisdiction created by section 5 of the Immigration Act 1988.

1. The appeals were dismissed unanimously. Lord Griffiths delivered the leading speech. Lord Keith of Kinkel, Lord Brandon of Oakbrook and Lord Ackner agreed with his reasons, while Lord Templeman delivered a concurring speech reaching the same result.

2. Per Lord Griffiths, the rule recognised in Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 permits a statutory function entrusted to a minister to be exercised by a responsible official within the minister’s department. Parliament may require the minister to act personally. The Immigration Act 1971 contained three express examples of personal decision-making, but imposed no comparable limitation upon an initial decision to deport. It would therefore be wrong to imply another restriction.

3. Immigration officers and inspectors were Home Office civil servants, rather than independent statutory office-holders. The Secretary of State could authorise suitably senior and experienced inspectors to take initial decisions under section 3(5)(a), provided that the function did not conflict with their specific statutory duties. An inspector should not decide a case in which that inspector had previously participated as an immigration officer. The authorised inspectors in these cases had no such involvement and held grades equivalent to the officials who had formerly made the decisions.

4. The inspectors themselves made the decisions. Each swore that a full oral report had been received and personally assessed. The appellants did not seek cross-examination, and suspicion about telephone reporting supplied no basis for rejecting that evidence. Lord Griffiths nevertheless expressed unease about the practice and considered a written report preferable, while recognising the practical difficulty created because detention became available only after service of the notice. Lord Ackner similarly emphasised the importance of accurate and complete material, but confirmed that procedural fairness was not the issue before the House.

5. Section 5(1) of the Immigration Act 1988 confined an adjudicator to deciding whether the established facts gave legal power to deport for the reasons in the notice. It did not authorise examination of whether the Secretary of State had exercised that power properly or through an authorised official. Per Lord Griffiths, R v Secretary of State for the Home Department, ex parte Malhi [1990] 2 WLR 932 was rightly decided, and its reasoning was adopted. Questions about the decision-maker and procedure were matters for judicial review. Both appellants were concededly liable to deportation, so their statutory appeals could not succeed.

1. House of Lords: Dismissed both immigrants’ appeals and affirmed the Court of Appeal’s conclusion that the immigration inspectors had lawful authority.

2. Court of Appeal: Allowed the Secretary of State’s appeals from the Divisional Court and granted leave to appeal to the House of Lords: [1990] 2 WLR 1195.

3. Divisional Court: Granted certiorari quashing both decisions because it considered that the Secretary of State could not validly authorise immigration inspectors to make initial deportation decisions: [1990] 2 WLR 1195.

4. Immigration Appeal Tribunal: Allowed the Secretary of State’s appeal in the first case and dismissed the immigrant’s further appeal in the second case.

5. Adjudicators: The first immigrant’s appeal was allowed on fairness grounds. The second immigrant’s appeal was dismissed.