Maria Carmelita De Jesus Camacho Teixeira v. Secretary of State for the Home Department

Immigration Appeal Tribunal

[1989] Imm AR 432

Hearing Date: 31 March 1989

31 March 1989

Index Terms:

Indefinite leave -- refusal -- work permit issued in Jersey -- employment in Jersey -- whether on the basis of that employment the appellant was entitled to a grant of indefinite leave in the United Kingdom -- the definition of 'approved employment'. Immigration Act 1971 sch 4: HC 169 para 133.

Held:

The appellant was a citizen of Portugal who had spent seven years, from 1979 to 1986 in Jersey, where she had been granted a work permit, had been employed and then had the restrictions on her employment removed. In 1986 she applied for indefinite leave to remain in the United Kingdom, which was refused. An appeal was dismissed by an adjudicator. Before the Tribunal it was argued that under the provisions of the 1971 Act her immigration history in Jersey qualified her for indefinite leave in the United Kingdom. HeldT1. Following Gopal 'approved employment' in the rules was employment specifically approved by the Department of Employment and not employment approved in a general sense by the Home Office. That decision overruled the earlier judgment in Inovejas. The appellant's employment in Jersey was not therefore 'approved employment' within paragraph 133 of HC 169. 2. However the effect of sch 4 of the 1971 Act was to extend the immigration rules so as to encompass cases such as that of the appellant. 3. The appeal would accordingly be allowed, the appellant qualifying for indefinite leave.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Solema Inovejas [1983] Imm AR 204. Kalimuth Gopal v Immigration Appeal Tribunal (CA, unreported, 23 January 1985).

Counsel:

M Chatwin of Camden Community Law Centre for the appellant; A Gammons for the respondent PANEL: DL Neve Esq (President), RE Hunte Esq JP, Mrs A Weitzman JP

Judgment One:

THE TRIBUNAL: The appellant is a citizen of Portugal. She appeals to the Tribunal against the determination of an adjudicator (Mr EJT Housden) dismissing her appeal against the refusal to remove the conditions attached to her leave to be in this country. There is no dispute as to the facts of this case. The appellant went to Jersey in April 1979 to join her parents. She was granted a work permit there shortly after her arrival and remained there in employment. In 1985 she was placed on permit-free conditions and in January 1986 her stay was extended for 12 months. On a date unrecorded she came to England and on 24 September 1986 applied for indefinite leave to remain here on the basis of her long employment in Jersey. It was claimed that she was eligible under paragraph 133 of HC 169. This application was refused on 2 April 1987. When the appeal went before the adjudicator it was argued that, given her history, the appellant qualified under schedule 4 to the Immigration Act 1971. We will not set out the arguments advanced before the adjudicator, as they have largely been repeated before us, but the adjudicator was not persuaded by them and dismissed the appeal. At the appeal before us, if we understand him correctly, Mr Chatwin puts the appellant's case in this way. The relevant parts of schedule 4 to the Act read: "1(1) Where under the immigration laws of any of the Islands a person is or has been given leave to enter or remain in the island, or is or has been refused leave, this Act shall have effect in relation to him, if he is not patrial, as if the leave were leave (of like duration) given under this Act to enter or remain in the United Kingdom, or, as the case may be, as if he had under this Act been refused leave to enter the United Kingdom. (2) Where under the immigration laws of any of the Islands a person has a limited leave to enter or remain in the island subject to any such conditions as are authorised in the United Kingdom by section 3(1) of this Act (being conditions imposed by notice given to him, whether the notice of leave or a subsequent notice), then on his coming to the United Kingdom this Act shall apply, if he is not patrial, as if those conditions related to his stay in the United Kingdom and had been imposed by notice under this Act. (3) Without prejudice to the generality of sub-paragraphs (1) and (2) above, anything having effect in the United Kingdom by virtue of either of those sub-paragraphs may in relation to the United Kingdom be varied or revoked under this Act in like manner, and subject to the like appeal (if any), as if it had originated under this Act as mentioned in that sub-paragraph. (4) Where anything having effect in the United Kingdom by virtue of sub-paragraph (1) or (2) above ceases to have effect or is altered in effect as mentioned in sub-paragraph (3) or otherwise by anything done under this Act, sub-paragraph (1) or (2) shall not thereafter apply to it or, as the case may be, shall apply to it as so altered in effect. (5) Nothing in this paragraph shall be taken as conferring on a person a right of appeal under this Act against any decision or action taken in any of the Islands." Paragraph 133 of HC 169 provides that a person who has been admitted or allowed to remain for the purposes of approved employment may have the time limit on his stay removed if he has remained here in that capacity for four years. Mr Chatwin puts two alternative submissions to us: 1 "Approved employment" as mentioned in paragraph 133 includes employment approved in Jersey. 2 If it does not, paragraph 133 is ultra vires the Immigration Act (insofar as persons in the appellant's position are concerned) because schedule 4 is primary legislation creating rights which cannot be reduced by subordinate legislation. Mr Gammons answer to these submissions is that the term "approved employment" has been held by the Court of Appeal in the case of Gopal (23 January 1985) to be a "term of art to mean employment specifically approved by the Department of Employment, and not employment approved in a general sense by the Home Office" (per Lloyd LJ). It is not in dispute that the appellant's employment has never been approved by the Department of Employment and in Mr Gammons' submission that is an end of the matter. Mr Gammons reminded us that in any event paragraph 133 is a "discretionary" paragraph (the conditions may be removed). Mr Chatwin referred us to the case of Inovejas [1983] Imm AR 204, in which Woolf J (as he then was) said: "On the facts of this case, which I regard as being very special, I have no doubt that the employment with Mr and Mrs Altneu, at least after 10 September 1980, was employment which was approved for the purpose of the rule to which I have referred. I say that notwithstanding the fact that the Immigration Appeal Tribunal took a different view having cited decisions of the High Court, including a decision of my own within which I said in terms that approved employment means employment approved by the grant of a work permit, to which Mr Collins referred in the course of argument. The statement of mine in that case referring to a work permit is applicable when a person is first coming into the country, but I do not regard it as being applicable to a situation such as this where a person having entered the country with a work permit then gets a further extension, since there is no reference in the rules to the requirement of a further work permit. I regret if the tribunal were led to a false conclusion in this case because of what I said in that earlier case which certainly was not meant to extend to this sort of situation." He submitted that this was authority to show that not every employment had to be approved by the Department of Employment -- and that this case too was 'very special', as evidenced by the fact that this was apparently the first time the situation had arisen in the eighteen years for which the Immigration Appeals system had existed. However we note that Woolf J's judgment was delivered some two years prior to the Court of Appeal's judgment in the case of Gopal, which we consider must take precedence, being not only later but the judgment of a superior court. However there still remains the effect of schedule 4 to be considered. With regard to Mr Chatwin's second contention regarding paragraph 133 being (to some extent) ultra vires, we consider that happily such a question does not arise. In our view schedule 4 has the effect of extending the rules so as to cover the situation of persons such as the appellant: and if there is an apparent conflict between the Act and a rule, obviously the Act must prevail. This being so we consider that the appellant's employment in Jersey rendered her case eligible for consideration of the claim for the removal of the conditions attached to her leave to be in this country. We understand that she has since been granted indefinite leave to be here, but for the above reasons the appeal is allowed.

DISPOSITION:

Appeal allowed