R v. Immigration Appeal Tribunal, Ex parte Burhan Aksoy

R v Immigration Appeal Tribunal Ex parte Burhan Aksoy

Queen's Bench Division

[1984] Imm AR 171

Hearing Date: 26 October 1984

26 October 1984

Index Terms:

Practise and procedure -- Marriage -- Applicant admitted as visitor -- Married citizen of Cyprus who had been granted indefinite leave to remain -- By virtue of his marriage applicant met all of the requirements for leave to remain except that of his wife being a British citizen -- Whether the Secretary of State had a discretion within the Immigration Rules to grant applicant leave to remain -- HC 169 para 126.

Held:

The applicant applied for an order of certiorari to quash a decision of the Immigration Appeal Tribunal dated 19 April 1984. The facts are set out in the judgment of the Court. Held: The rule contained in paragraph 126 was a single rule providing a single relief for husbands whose wives were British citizens. That rule conferred no right upon the applicant, nor a discretion upon the Secretary of State to go outside its terms.

Cases referred to in the Judgment:

Firat (12.1.1983) unreported, DC. Wirdestedt [1982] Imm AR 186, IAT. Regina v Greater Manchester Coroner, ex parte Tal and another [1984] 3 WLR 653, DC.

Counsel:

A Riza for the applicant. P Vallance for the respondent. PANEL: Nolan J

Judgment One:

NOLAN J: This is an application by Mr Burhan Aksoy for an order of certiorari to quash a decision of the Immigration Appeal Tribunal, dated 19 April 1984. The application raises an interesting and difficult point of law which is not precisely covered by earlier cases. In normal circumstances I would have preferred to reserve judgment but I feel that I should give an immediate judgment, both because of the obvious importance of the matter to Mr Aksoy and his wife, and because the general questions of principle, I am told, are very shortly to come before the Court of Appeal. The decision of which Mr Aksoy complains was the refusal by the Immigration Appeal Tribunal to give him leave to appeal against a determination of the Adjudicator. The Adjudicator, for his part, had refused Mr Aksoy's appeal against the decision of the Secretary of State refusing him leave to remain in the United Kingdom on the basis of his marriage to Mrs Aksoy. The facts of the matter are not in dispute and are conveniently set out in the Adjudicator's decision. Mr Aksoy is a citizen of Turkey, born in 1956. He arrived in this country on 6 March 1982. He was granted leave to enter for one month, subject to the normal conditions prohibiting employment. He was subsequently granted an extension of his stay as a visitor until 6 July 1983. In the meantime, only 18 days after his arrival, he had married a citizen of Cyprus who had been granted indefinite leave to remain here on 4 November 1978. Initially the couple had intended to return to Turkey before the end of 1982 but they subsequently decided that they wished to remain in this country. A child of the marriage was born in 1983, and that child is a British citizen. The matter was argued before the Adjudicator, as it has been before me, principally by reference to the rule contained in paragraph 126 of HC 169. That paragraph reads as follows: "Where a man admitted in a temporary capacity marries a woman settled here, an extension to stay or leave to remain will not be granted, nor will any time limit on stay be removed, unless the Secretary of State is satisfied: (a) that the marriage was not entered into primarily to obtain settlement here; and (b) that the parties to the marriage have met; and (c) that the husband has not remained in breach of the immigration laws before the marriage; and (d) that the marriage has not taken place after a decision has been made to deport him or he had been recommended for deportation or been given notice under section 6(2) of the Immigration Act 1971; and (e) that the marriage has not been terminated; and (f) that each of the parties has the intention of living permanently with the other as his or her spouse."

"Where the Secretary of State is satisfied that all the conditions at (a) to (f) above apply, the husband will be allowed to remain, for 12 months in the first instance, provided that the wife is a British citizen. At the end of the 12 months' period the time limit on the husband's stay may, subject to (a) to (f) above, be removed."

It is common ground that Mr Aksoy meets the conditions set out in subparagraphs (a) to (f). Mrs Aksoy is not, however, a British citizen, though she has applied for citizenship and her application is in the course of being considered, a course which I understand has proved in the present case a lengthy one. The decision of the Adjudicator was that he was bound by the judgment of Stephen Brown J, as he then was, in a case called Firat -- despite reservations about that judgment expressed by Hodgson J in a later case called Wirdestedt -- to disallow the appeal. He held, in particular, that while the Secretary of State has a residual discretion to act outside published rules and so allow a man married to a non-British citizen to remain here, there was nothing to support the contention that the Secretary of State had such a discretion within the rules. I shall have to return to the decision on Firat but before doing so I think it would be helpful if I state the position of the applicant as I see it and in my own words. By virtue of section 1(2) of the Immigration Act 1971, Mr Aksoy may continue to reside here only by permission. There are two ways in which that permission may be given: one is in accordance with the provisions of the Immigration Rules, if applicable; and the other way is by virtue of the residual discretion of the Secretary of State under section 3(3) of the Immigration Act 1973. The exercise by the Secretary of State of this residual discretion is not subject to appeal. The reason why it is not appealable, in my judgment, is simply stated, namely, that in the first place the Act does not so provide; and secondly, and in any event, the applicable tribunal would have no standards -- it being a residual discretion -- to decide whether it had been exercised well or ill. The argument advanced by Mr Riza does not rely on any residual discretion but upon a discretion which he submits is to be found by necessary implication in the language of paragraph 126. Accordingly, he submits that is a discretion under the rules whose exercise is appealable. He supports this submission by reference to the wide terms of section 3(3) which imparts both a discretion in the rules and a residual discretion. He argues that the right of appeal given by section 14 of the Immigration Act 1971 is available against the exercise of any discretion to vary the terms of leave, though I observe that section 14 is the subject to the other provisions of part 2 of the Act. He argues that section 19 of the Act contemplates an appeal against the exercise of a discretion by the Secretary of State in all cases, save where the Secretary of State has refused to depart from the rules and, he says, this is not such a case. Referring to the rules themselves he invites me to note that in paragraph 94 a distinction is drawn between categories of a husband in the position of Mr Aksoy and the principles upon which the provisions of the various rules are to be applied. He says the principle is one in favour of husbands coming to join their wives if they satisfy the conditions set out in the rules. Contrary to the submissions of Mr Vallance, he submits -- and I accept this submission -- that the terms of paragraph 99 of the rules do not point in the other direction because paragraph 126 is specifically exempted from the operation of paragraph 99. The argument has been most lucidly and persuasively put by Mr Riza. I am bound, however, to conclude that it constitutes an attempt to extend the provisions of the rules into the area of residual discretion. The dividing line between the two areas, in my judgment, must remain clear; either the Secretary of State has a discretion under the rules or he has not. If in a particular case he has not got a discretion under the rules but only a residual discretion, no appeal under section 14 and section 19 can lie. The reason why it cannot is because section 14 is subject to section 19, and because section 19, in effect, rules out an appeal in a case where the residual discretion has been invoked. Any request that the Secretary of State should depart from the rules constitutes a request that the residual discretion should be exercised. I do not think that it is helpful to distinguish between the ordinary case of the exercise of a residual discretion and a case which, for one reason or another, lies just outside the terms of a particular rule. If the case does not fall within the rules, no appeal can be made. Does the rule contained in paragraph 126, either expressly or by necessary implication, confer a discretion on the Secretary of State which covers the present case. Mr Riza referred me to the predecessors to paragraph 126 and earlier statements of the rules governing the case of a husband who is married to a wife who has permission to settle. Some of those earlier versions of the rule did contain an element of discretion. I must, however, as I see it, go by the rule as it now stands and not be influenced by earlier versions and corresponding provisions which are no longer in force. The rule is not as clearly expressed as it might have been. The proviso at the end, limiting its operation to husbands of wives who are British citizens, could, with advantage, have been stated much earlier. I am bound to conclude, however, that it is a single rule providing a single relief for husbands whose wives are British citizens, and it confers neither a right upon the applicant nor a discretion upon the Secretary of State to go outside its terms. Firat's case was decided by reference to paragraph 117 of HC 394. The language of that paragraph differs from that of paragraph 126 in two respects, only one of which requires mention. The applicant, under paragraph 126, clearly has the burden of proving he has satisfied the conditions, whereas it is not clear that the burden rests on him under paragraph 117. Mr Riza submits that, under paragraph 126, the satisfaction of the conditions in discharge of the burden of proof must carry greater weight than under paragraph 117. I cannot regard that as a critical difference. The facts of Firat are indistinguishable from those of the present case. Mr Riza addressed me on the basis that I was bound to follow Firat unless he could show that it was decided per in curiam. In the course of argument and in the interval between the days on which the hearing has occurred I have found, in the decision of the Divisional Court in Regina v Greater Manchester Coroner Ex Parte Tal and another, (1984) 3 WLR 643, passages in the judgment of Goff LJ, at page 653, which satisfy me that I am not strictly bound by the decision of another single judge hearing the Crown Office List, though I should naturally follow it unless I am convinced that it was wrong. The point, however, does not arise because although the arguments addressed to me differ from those addressed to Stephen Brown J in that he was not invited to consider whether a discretion as distinct from a right was conferred by the provisions of paragraph 126, I can say shortly that I agree with the substance of his reasoning in that case with the conclusions which he reached, notwithstanding the doubts expressed about some of them by Hodgson J in the Wirdestedt case. In the circumstances, although paragraph 126 is not expressed as clearly as it might have been, I do not think I am entitled to refer to the European Convention on Human Rights for guidance. It would be different if the paragraph were ambiguous or of such obscurity that recourse to the Convention could and should be employed. That is not, in my judgment, the present case.

DISPOSITION:

Application refused.

SOLICITORS:

South Islington Law Centre; Treasury Solicitor.