Secretary of State for the Home Department v. Victor Ignatius Pope

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v VICTOR IGNATIUS POPE

Immigration Appeal Tribunal

[1987] Imm AR 10

Hearing Date: 12 September 1986

12 September 1986

Index Terms:

Immigration rules -- transitional provisions -- application of provisions in HC 503 -- whether an application for a variation of leave under HC 503 in a category different from that in which leave was granted under HC 169 is to be considered under the provisions of HC 169 or HC 503. HC 503 para 24(a).

Held:

The respondent had been admitted as a working holidaymaker under the relevant provisions of HC 169. He subsequently sought a variation of leave to remain in employment for which a work permit was required. His application was refused without reference to the Department of Employment. If HC 169 applied, there had been a discretion so to refer the application. If HC 503 applied, refusal without such reference was mandatory. Although the point was not taken before the adjudicator, before the Tribunal it was contended that on a true interpretation of the transitional provisions in HC 503, it was those rules that applied. Held: 1. The phrasing in the transitional provisions of HC 503 is different from that used in the like provisions of HC 169. The use of the word 'corresponding' in paragraph 24(a) indicates that the earlier rules, HC 169, will only apply where an application for variation of leave is made that relates to or is linked with an earlier leave, already granted under those earlier rules. 2. In the instant case a variation of leave sought for employment was in a different category from earlier leave granted as a working holidaymaker. There was no link with the earlier leave and thus the provisions of HC 503, not HC 169 applied.

Cases referred to in the Judgment:

No cases are referred to in the determination.

Counsel:

A Gammons for the appellant; EA Yaansah of the United Kingdom Immigrants Advisory Service for the respondent. PANEL: Professor DC Jackson (Vice-President), GJ Brown Esq JP, Miss PG Liverman JP

Judgment One:

THE TRIBUNAL: The Secretary of State appeals against the decision of an adjudicator (V Callender Esq) allowing the appeal of Victor Ignatius Pope against the refusal of leave to remain for employment insofar as the application had not been referred to the Department of Employment. The appeal turns on a short but important point of construction on paragraph 24(a) of HC 503. That paragraph reads: "24(a) Subject to paragraphs 25 to 32 below the changes to the rules set out in Section One shall apply to decisions taken on or after 26 August 1985 except that they shall not apply on or after that date to any further decision concerning leave to enter or variation of leave (as the case may be) in respect of a person who has current entry clearance or leave to enter or remain (as the case may be) granted under the corresponding provisions of HC 169 (whether or not by virtue of the transitional provisions set out in paragraph 27 to 32 below) and any further decision in respect of that person shall be made in accordance with HC 169 subject to the deletion in paragraphs 41, 54 and 126 thereof of the proviso relating to British citizenship". The question before us is the extent (if any) of the link between the leave obtained under HC 169 and the application made after the 26 August 1985 for that application to fall within paragraph 24(a) and therefore to be adjudged according to HC 169. There is no dispute about the facts in this case. The respondent first arrived in the United Kingdom on 29 October 1983 with a "working holidaymaker" entry clearance. His leave to remain as a working holidaymaker was extended until 29 October 1985. There were no restrictions regarding employment imposed either initially or on the extension of leave. On 17 September 1985, the respondent applied for leave to remain to enable him to continue in employment. This application was later supported by an application form to employ an overseas worker completed by his employer. The application was refused, the notice of refusal reading: "You have applied for leave to remain in the United Kingdom to take employment with J Paxton Limited but this is employment for which a work permit is required and you were not admitted to the United Kingdom with such a work permit". The case was not referred to the Department of Employment. It is common ground that if HC 169 as it was before amendment by HC 503 applies, the Secretary of State had a discretion to refer the respondent's case to the Department of Employment as the respondent had been givn leave to enter without restriction on the taking of employment. It is also common ground that the amendment by HC 503 removes the discretion in the case of the respondent and provides for a mandatory refusal of the application. Before the adjudicator it was argued that as paragraph 24(a) of HC 503 appears in the section dealing with Transitional provision, the "corresponding provisions of HC 169" were the transitional provisions of those rules. The adjudicator rejected this argument and concluded that "the Immigration Rule appropriate to the appellant's application was paragraph 100 of HC 169 as it stood before amendment". The adjudicator therefore remitted the matter to the Secretary of State in order that the case may be referred to the Department of Employment. Before us Mr Gammons did not seek to rely on the argument put on behalf of the Secretary of State to the adjudicator. Instead he contended that to qualify under paragraph 24(a), an application for leave must fall into the same category as the leave already held. In this case the respondent was admitted as a working holidaymaker but his application presently under consideration was for leave to remain in employment. His leave to remain therefore had not been granted under the provisions of HC 169 corresponding to the decision at issue. Mr Gammons supported his argument by pointing to the purpose of the transitional provisions as being to protect persons against precipitate change. Mr Yaansah contended that the effect of 24(a) was that if on 26 August 1985 a person had leave to be in this country and an application was made which would have attracted a provision of HC 169, that provision must be applied. Mr Yaansah referred us to previous transitional provisions and in particular those under HC 394. HC 394 paragraph 158 so far as is relevant reads: "158. An Application made on or before 14 November 1979 will be decided under the provisions of HC 79(a), HC 80(b), HC 81(c) or HC 82(d) as appropriate and not under the corresponding provisions of these rules . . .". Paragraphs 159-162 of HC 394 refer to persons who have been given limited leave or granted an entry clearance before a specified date on the specified grounds. In these cases the rules provide that further applications in the same capacity or to have a time limit removed are to be decided under the earlier rule. It will be seen, therefore, that HC 394 first provides that any application made by a specified date will be decided under earlier rules and secondly, in some cases in which leave or entry clearance has been granted, further linked applications will be decided under the earlier rules. HC 503 paragraph 24(a) unlike HC 394 paragraph 158 does not apply HC 169 in respect of any application made before a specified date. Nor does it specify the grounds on which entry clearance or leave has been granted under earlier rules for those rules to continue to apply to further decisions. Instead it takes a different line to HC 394 and perhaps suffers from a certain lack of clarity. We think, however, that there would be no point in using the word "corresponding" unless Mr Gammons is correct in his argument that for the further decision to be decided under HC 169, it must relate or be linked to the entry clearance or leave already held. In this case the refusal at issue is the refusal of an application for leave to enter employment and given the circumstances, this could not come within any application to remain as a working holidaymaker. Therefore the decision at issue is not a further decision concerning leave in respect of a person who had leave to enter granted under the "corresponding" provision of HC 169.

DISPOSITION:

Appeal allowed.