Purewal v. Entry Clearance Officer, New Delhi

PUREWAL v ENTRY CLEARANCE OFFICER, NEW DELHI, TH/1916/76(964)

Immigration Appeal Tribunal

[1977] Imm AR 93

Hearing Date: 24 May 1977

24 May 1977

Index Terms:

Amnesty' for illegal entrants -- Persons affected by retrospective provisions in the Immigration Act 1971 -- Secretary of State's announcement of 11 April 1974 -- Discretionary power of Secretary of State exercised outside the immigration rules -- 'Amnesty' issues not within jurisdiction of immigration appellate authorities -- Immigration Act 1971, s 19(2).

Held:

Neither the refusal of an application for an 'amnesty', nor any matter related to such an application made by an illegal entrant pursuant to the Secretary of State's announcement on 11 April 1974 (concerning certain categories of illegal entrants affected retrospectively under the Immigration Act 1971) is within the jurisdiction of the immigration appellate authorities, because amnesty issues are matters in which the Secretary of State exercises a discretionary power outside the immigration rules. Accordingly, the adjudicator referred to in the case which is reported below misdirected himself when he entertained argument with regard to the amnesty which the appellant was seeking.

Introduction:

The relevant facts in this appeal by a citizen of India are set out in the Tribunal's determination.

Counsel:

Z. Chishti of the United Kingdom Immigrants Advisory Service, for the appellant. B. Hunter for the respondent. PANEL: D. L. Neve (Vice-President), Mrs. J. H. M. Goodchild, Sir John Rankine

Judgment One:

THE TRIBUNAL: The appellant Chattar Singh Purewal is a citizen of India who on 20 March 1975 applied at the British High Commission, New Delhi, for an entry certificate with a view to settlement in the United Kingdom. His application was refused on 19 November 1975 because the entry clearance officer was not satisfied that he had any claim to admission to the United Kingdom under the immigration rules. He appealed to an adjudicator and his appeal was heard by Mr W. Parker and dismissed on 6 August this year. Against Mr Parker's determination he now appeals to the Tribunal. There has never been any dispute as to the facts of this case which briefly are as follows. The appellant came to the United Kingdom in 1971 illegally, being smuggled into the country with others by means of a light aeroplane. On 2 February 1971 he was convicted at the Wolverhampton Magistrates Court of having landed contrary to s 4(a) of the Commonwealth Immigrants Act 1962. He was sentenced to three months' imprisonment suspended for two years and recommended for deportation. A deportation order was made against him under s 9(1) of the Commonwealth Immigrants Act 1962 and he was deported to India on 18 April 1972. On 2 October 1975 the Secretary of State revoked the deportation order against him. As we have mentioned, he made application for an entry certificate on 20 March 1975, but this application was not refused until 9 November that year -- after his deportation order had been revoked. It has not been suggested and it is not now claimed that he is admissible to this country under any of the immigration rules, but it is claimed that he is entitled to avail himself of the Secretary of State's 'amnesty' for illegal entrants announced on 11 April 1974. n1 n1 The text of the Secretary of State's announcement made in reply to a written question in the House of Commons on 11 April 1974 was (so far as here relevant) as follows:

"I have now reached a decision regarding the exercise of the administrative power under the Immigration Act 1971 to remove illegal entrants who are Commonwealth citizens or citizens of Pakistan. This power, which came into effect on 1 January 1973, applies to those who entered this country illegally before that date, and who were irremovable by administrative means until the law was changed with retrospective effect."

"... I have decided not to exercise the power of removal in respect of those who were adversely affected by its retrospective operation. This means that I shall not direct the removal of any Commonwealth citizen or citizen of Pakistan who entered illegally before 1 January 1973. Those in this category will, on application to the Home Office and verification of the facts, be given indefinite leave to remain. Their dependants will, in accordance with the immigration rules, be admitted when they have obtained entry certificates."

"... My decision does not extend to those who were not adversely affected by the retrospective provisions in the Act of 1971 and so does not apply to foreign nationals other than citizens of Pakistan, to deserting seamen, to stowaways, to people who entered in defiance of a deportation order or to people who entered lawfully but then overstayed."

The adjudicator heard argument from the appellant's representative as to whether or not the appellant was entitled to claim a right of admission by virtue of the amnesty; also as to whether there was any difference between those who had been removed from the United Kingdom under administrative powers and those who had been deported. The adjudicator reached the conclusion that the appellant did not qualify for admission under the terms of the amnesty n2 and he dismissed the appeal. n2 In a leaflet issued by the Home Office in August 1974 entitled "Illegal entrants: what you should do" guidance was given to persons who might consider themselves eligible for the 'amnesty'. The following passage appeared: "Commonwealth citizens and citizens of Pakistan who have already been sent away as illegal entrants, but who would have benefited from the Home Secretary's decision had they been here now, will be allowed to return here, but it will be necessary for them first to apply for entry clearance." In the case of Andaz Mahmood Malik v Secretary of State for Home Affairs, TH/7678/75(853), the appellant's counsel submitted that this leaflet was "part of the immigration rules, having been put before Parliament and not disapproved. Therefore, the argument ran, the Tribunal has power to look into the matter to see whether the Secretary of State has dealt with the matter fairly and justly." The Tribunal found this argument to be "totally without merit", adding that there was "not a tittle of evidence to show that this document was laid before Parliament", and explaining that (on its face) it was a leaflet prepared for the Home Office by the Central Office of Information. Before us Mr Chishti conceded that the facts are not in dispute and that the appellant has no right to admission under the immigration rules. He has submitted, however, that the appellant should have been granted entry clearance by reason of the amnesty; and he has also submitted that the appellant's deportation in April 1972 was illegal because, he suggests, a deportation order could not properly have been made against the appellant until the expiration of the 2-year period during which his sentence was suspended. We find little merit in these arguments. Even assuming that the appellant was illegally deported in 1972 -- which we do not consider to have been the case -- the fact remains that at the time of the application to the entry clearance officer in 1975 he was physically in India. He was then only eligible for entry clearance to enable him to come to this country either by reason of the immigration rules or by reason of the amnesty. It is not claimed that he was eligible under the immigration rules and the Tribunal have already held (notably in the case of Andaz Mahmood Malik n3 heard on 23 November last) that the administration of what is called the amnesty is outside the immigration rules and that the appellate authorities have no jurisdiction to adjudicate on this matter. n4 This must clearly be the case, since the amnesty is an exercise of the Secretary of State's discretion outside the immigration rules and s 19 of the Immigration Act 1971 provides, inter alia, that: n3 TH/7678/75 (853) d 23.11.76 (unreported). See, however, footnote 2, ante, n4 In a case before the Queen's Bench on 10 May 1977, In re Paramjit Singh Dell (No 149/77, unreported (LORD WIDGERY CJ cited words used by LANE LJ in the Court of Appeal in Birdi v Secretary of State for Home Affairs on 11 February 1975 (unreported, (1975) Bar Library transcript 67B, The Times 12.2.75). Speaking of the 'amnesty' announced by the Secretary of State on 11 April 1974, LANE LJ said: "That was simply an expression of an intention to mitigate the rigours of the Act under certain circumstances. It conferred no right on the applicant but gave him an expectation that the facts of his case would be examined administratively and if he satisfied the burden of proof which lay upon him, the Secretary of State might exercise his discretion to give him leave to remain."

"... no decision or action which is in accordance with the immigration rule shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so."

In the Tribunal's opinion, therefore, the adjudicator misdirected himself in entertaining argument with regard to the amnesty and for the reasons given this appeal is dismissed.

DISPOSITION:

Appeal dismissed.