R v. Immigration Appeal Tribunal, Ex parte Subramaniam

R v Immigration Appeal Tribunal, ex parte Subramaniam

QUEEN'S BENCH DIVISION

[1977] QB 190, [1976] 1 All ER 915, [1976] 3 WLR 630, 140 JP 311

Hearing Date: 25 FEBRUARY 1976

25 FEBRUARY 1976

Index Terms:

Immigration - Deportation - Expiration of leave to remain in United Kingdom - Variation of leave - Refusal of application to vary leave - Appeal pending - Applicant not to be deported so long as appeal pending - Applicant who has a limited leave to enter or remain in the United Kingdom - Applicant's leave having expired before application made for further period of leave - Whether applicant immune from deportation until application determined and appeal procedure exhausted - Immigration Act 1971, ss 3(5)(a), 14(1).

Held:

The applicant, a non-patrial, obtained leave to remain in the United Kingdom until 24th September 1973. He remained, however, after his entry permit had expired. He was thereupon ordered to leave the United Kingdom by the Home Secretary by 30th June 1974. On 19th June his employers applied for a work permit to be issued to him, but that application was refused. In July 1974 an appeal was lodged by them against that refusal, but was withdrawn on 26th November. Meanwhile, on 19th November the applicant applied for an Extension of leave to remain in the United Kingdom and repeated the application in December 1974. In January 1975 the Home Secretary, pursuant to his powers under s 3(5)(a) a of the Immigration Act 1971, notified the applicant that he would be deported and, on appeal, the Immigration Appeal Tribunal upheld that decision. The applicant applied for an order of certiorari to quash the tribunal's decision, contending that under s 14(1) b of the 1971 Act, as a person who had had a limited leave to remain in the United Kingdom, he could not be required to leave the United Kingdom by reason of the expiration of his leave until, in the event of a refusal of his pending application, the appeal procedure had been exhausted. a Section 3(5), so far as material, is set out at p 917 j, post b Section 14(1), so far as material, is set out at p 918 f and g, post Held - The words 'a person who has a limited leave under this Act' in s 14(1) did not include a person who had had a limited leave but whose leave had expired before he made a further application for leave. Acordingly, since the Home Secretary had commenced deportation proceedings at a time when the applicant had had no right to remain in the United Kingdom, the Home Secretary could not be prevented from pursuing those proceedings on the ground that the applicant had made an application for leave to remain in the United Kingdom. The application would therefore be dismissed (see p 918 j to p 919 b and d to f, post).

Notes:

For appeals by immigrants against conditions of entry or stay, see 4 Hlsbury's Laws (4th Edn) para 1018. For the Immigration Act 1971, ss 3, 14, see 41 Halsbury's Statutes (3rd Edn) 20, 35.

Introduction:

Motions for certiorari and mandamus. This was an application by way of motion by Kunaseelan Subramaniam for (a) an order of certiorari to bring up and quash the determination of the Immigration Appeal Tribunal dated 17th October 1974 dismissing the applicant's appeal against the determination of an adjudicator; and (b) an order of mandamus directed to the tribunal to hear the appeal in accordance with the immigration law applicable to the applicant's case. The grounds of the applications were: (a) that the Secretary of State had not considered the applicant's applications dated 19th November and 11th December 1974 under the powers conferred on him under s 4(1) of the Immigration Act 1971 and reg 3(3) of the Immigration Appeals (Notices) Regulations 1972 n1; (b) that under s 14(1) of the 1971 Act the applicant had a statutory right of appeal in the event of the refusal of the application referred to in (a) above, and that the decision taken to deport the applicant under s 3(5)(a) of the 1971 Act was therefore premature and of no legal effect and contrary to para 39 of the Immigration Rules n2; and (c) that at the time of the withdrawal of the appeal dated 26th November 1974 the applicant's application dated 19th November was pending in the Home Office; that the applicant had sent a further application and had received confirmation dated 12th December 1974 that his application was receiving attention; and that the tribunal had erred in law in coming to the conclusion that the applicant did not have authority to remain in the United Kingdom after he withdrew his appeal in November 1974. The Secretary of State for the Home Department appeared as respondent to the motions. At the hearing the applicant did not pursue the application for mandamus. The facts are set out in the judgment of Lord Widgery CJ. n1 SI 1972 No 1683 n2 Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (HC 79), laid before Parliament on 25th January 1973 under s 3(2) of the Immigration Act 1971

Counsel:

K S Nathan for the applicant. Harry Woolf for the Secretary of State. PANEL: LORD WIDGERY CJ, KILNER BROWN AND WATKINS JJ

Judgment One:

LORD WIDGERY CJ. This comes before the court as an application made by counsel on behalf of one Kunaseelan Subramaniam for an order of certiorari to bring up into this court with a view to its being quashed a decision of the Immigration Appeal Tribunal which was given on 17th October 1975, and the effect of which decision was to dismiss an appeal brought by the applicant from a decision of an adjudicator, who in turn had dismissed an appeal brought by the same applicant from a notice given by the Secretary of State on 8th January 1975 that he was going to make a deportation order in respect of the applicant. The brief history of the matter is that the applicant arrived from Sri Lanka on 18th January 1970 and was originally given leave to remain in the United Kindom for 12 months. He wanted to pursue a course of study in this country and it was not very long before he was asking the Secretary of State for an extension of time. Indeed in January 1971 he wrote to the Secretary of State asking for an extension of his stay and the Secretary of State refused the application. The applicant appealed to the adjudicator, as he was entitled to do, and the adjudicator allowed the appeal and directed that the applicant could stay in this country so as to obtain three years' experience with Electric Power Storage Ltd, Manchester, who were in the line of business that the applicant wished to study. That meant that the applicant had permission to remain in this country until 24th September 1973, that being three years from the basic date fixed by the adjudicator. All went well for the next three years. At least the applicant did not always pass his examinations, but apart from that, all went well. He remained in this country and he was concerned to learn the practical side of the electric power business and the making of batteries. He was well received by his employers as one can say to his credit, and they obviously wanted to keep him. So in due course his employers, Chloride Industrial Batteries Ltd, managing agents for Electric Power Storage Ltd, applied to the Secretary of State asking for permission for him to remain in their employment and to re-sit the examination in June 1974. The Secretary of State again refused this application, and the date fixed at that time for the applicant to leave this country was 30th June 1974. That is rather an important date because it was from that date that the period began during which he had no authority to remain in this country at all. The date 30th June 1974 passed by without any extension of time. There had meanwhile, as I understand it, been an application by the employers for the grant of a work permit for the applicant. That means that they wanted the prohibition on taking work in this country to be removed so that he could be employed. The case has been a somewhat puzzling one for us because considerations affecting the work permit tend to get mixed up with considerations affecting the leave to remain in this country. However, the employers made an application for a work permit, and on refusal by the Secretary of State an appeal was lodged again with a view to overriding his decision. Then the applicant appears to take a slight change of course because on 19th November 1974 we find his employers writing, saying that he is now asking to become a full-time student and does not want a work permit. This was to be the subject of a further appeal, but when the appeal was being heard, or at about the time when it was heard, an application was made to withdraw it, and we find therefore that on 26th November 1974 the appeal is withdrawn and, as I understand it, we are now back in the position which had been achieved in the previous June that the applicant has no right to remain in this country and has no pending proceedings still available which might confer a right on him. It is at this time that he made two applications to the Secretary of State asking for permission to stay still further. No doubt he appreciated that his position was some-what insecure and he made these two applications, and I should now refer to them because they received much attention in the course of the argument. One is dated 11th December 1974. It is in manuscript written by the applicant himself. It is addressed to the Home Office and it says, amongst other things: 'Please be kind enough to extend my visa so as to enable me to complete this course of studies. Also please note the change of address.' It is fully accepted that that was an application for the granting to the applicant of a further period in which he might stay in this country, and that was backed up by his employers, in the letter dated 19th November 1974 already referred to. However, the Secretary of State, if he considered these applications at all, was not moved by them, because on 8th January 1975 he decided to make a deportation order. He could on the face of it make a deportation order by virtue of s 3(5) of the Immigration Act 1971 which provides:

'A person who is not patrial shall be liable to deportation from the United Kingdom -- (a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave...'

In other words, exactly the situation presented by the applicant at the end of 1974 and beginning of 1975. This notice was duly given. The applicant then appealed against the notice. This again is something for which the appeal machinery is available, and on 15th January 1975 he entered an appeal against the notice. The matter in due course came before an adjudicator who dismissed the appeal. An application was made to the Immigration Appeal Tribunal to hear an appeal from the adjudicator. That application was accepted in the sense that the appeal was heard, but the tribunal dismissed the appeal. Therefore, on the face of it, the notice of intention to deport could stand and there is no doubt that, believing that to be true in law, the Secretary of State on 8th December 1975 made an order of deportation based on the notice of intention to deport which had been given on 8th January 1975. The point raised here can be put quite shortly. This is an application for certiorari on the footing that there is an error of law on the face of the record. The record for this purpose includes obviously the formal decision of the tribunal, and we are allowed on an application for certiorari to look at the reasons given in the speaking order which the tribunal has made and see whether those reasons are good in law. The tribunal refers to the two applications which I read a few moments ago, and the tribunal refers to the fact that the applicant says that those two documents are in truth applications by him for further leave to remain in this country. The tribunal accepts that that is the case, and accepts that those two documents are vaild applications. This allowes counsel for the applicant to contend that the applications were never refused, and indeed there is no record of their having been considered favourable or unfavourably; certainly they have never been refused. Counsel says that on their being refused, if they were refused, he would have yet another right of appeal under the 1971 Act. He says further that had he had that right of appeal he could not have been ejected from the country until after the appeal proceedings had been determined. As authority for that part of his submission counsel refers us to s 14(1) of the 1971 Act which provides:

'Subject to the provisions of this Part of this Act, a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any variation of the leave... or against any refusal to vary it; and a variation shall not take effect so long as an appeal is pending under this subsection against the variation, nor shall an appellant be required to leave the United Kingdom by reason of the expiration of his leave so long as his appeal is pending under this subsection against a refusal to enlarge or remove the limit on the duration of the leave.'

So s 14(1), counsel for the applicant submits, not only gives a right of appeal but also gives interim security to the appellant whilst the appeal proceedings are pending. Accordingly he says the Secretary of State was wrong in law to try and deport him, and the tribunal was wrong in law in supporting the Secretary of State. The answer which is put before us by counsel for the Secretary of State, if I state it correctly, is this. First of all he draws attention to the fact that the two applications to which I have referred were anterior in date to the Secretary of State deciding to make the deportation order. He says that there is nothing in s 14 to render this impracticable or impossible in law because he says that s 14 only gives a right of appeal with its associated security of tenure to someone who has a limited leave under this Act at the time. In other words, counsel distinguishes between the present applicant, who did have permission to stay in this country but whose permission has long since lapsed, with someone who has permission to remain in this country and who as yet has not run out his time. It is conceded that the second of those, by virtue of s 14, could make an application for an extension of time and he would have a right of appeal as of right and the interim security of tenure as of right. But as a matter of construction counsel for the respondent contends that the phrase 'a person who has a limited leave under this Act' is not wide enough to include someone who did have a limited leave under this Act but no longer has. I think that is right. I think that is a proper construction of the section, and I think that giving that construction to the first half of the subsection assists in construing the later half which again is relied on by the applicant. The second half reads thus:

'... a variation shall not take effect so long as an appeal is pending under this subsection against the variation, nor shall an appellant be required to leave the United Kingdom by reason of the expiration of his leave so long as his appeal is pending'.

Counsel for the Secretary of State says that section does not prevent the Secretary of State, who has once had a right to begin deportation proceedings, pursuing those proceedings merely because the immigrant has made a new application for leave to stay in this country. As I ventured to point out in argument, if that were not so an immigrant could apparently remain here almost indefinitely by continually making new applications for leave to remain and claiming a right of appeal and interim security every time. The answer to that absurdity is I believe, as counsel for the Secretary of State has submitted, that the privileges of s 14(1) are really confined to an applicant who currently has a limited leave under the Act to remain in this country. As the applicant at the material time did not have that right, it seems to me that the Secretary of State was perfectly entitled to give the notice of intended deportation and make the deportation order.The tribunal was right in law in upholding the Secretary of State's decision. I would therefore refuse the application.

Judgment Two:

KILNER BROWN J. I agree.

Judgment Three:

WATKINS J. I also agree.

DISPOSITION:

Certiorari refused.

SOLICITORS:

Mrs M Paranahetty (for the applicant); Treasury Solicitor.