R v. Immigration Appeal Tribunal, Ex parte John Maxwell Clarke Joseph
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 9 February 1977 |
| Citation / Document Symbol | [1977] Imm AR 70 |
| Type of Decision | TH/806/75(584) |
| Cite as | R v. Immigration Appeal Tribunal, Ex parte John Maxwell Clarke Joseph, [1977] Imm AR 70, United Kingdom: High Court (England and Wales), 9 February 1977, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b640c.html [accessed 17 September 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
R v THE IMMIGRATION APPEAL TRIBUNAL Ex parte JOHN MAXWELL CLARKE JOSEPH, TH/806/75(584)
Queen's Bench Division
[1977] Imm AR 70
Hearing Date: 9 February 1977
9 February 1977
Index Terms:
Business man -- Application by visitor to set up in business -- Consideration "on merits" -- Whether each of factors specified in immigration rule a prerequisite to grant of permission -- Whether decision of adjudicator made 'in the round' was proper after taking all relevant factors into account -- HC 80, para 21.
Business man -- Partnership in restaurant business -- "Assets of his own" -- Disproportion between capital contributed by applicant and capital provided by partner very great -- Whether this fatal to the application -- Meaning of word "assets" -- Personality of applicant a relevant factor to the success of the business -- Whether adjudicator adopted proper approach when making his decision 'in the round' after taking all relevant factors into account -- HC 80, para 21.
Held:
J, a citizen of Jamaica, came to the United Kingdom on 2.4.71 as a visitor for a period of 6 months. In September 1971 he applied for permanent residence in order to set up a business enterprise, a restaurant in partnership with another man. After being granted some extensions of stay while his application was being considered J's application was eventually refused on 26.4.74. He appealed against that refusal, and his appeal was allowed by an adjudicator on 8.4.75 but that decision was reversed by the Tribunal on 28.1.76. On J's application to the Queen's Bench Divisional Court for an Order of Certiorari to quash the Tribunals' decision, it was noted that the adjudicator in considering J's case under the immigration rule relating to applications by visitors to set up in business, para 21 of HC 80, had held that the factors which fell to be considered under para 21 n1 must be considered 'in the round' and were not all prerequisites to the grant of permission, and in particular that the fact that J's capital contribution to the enterprise was disproportionate to that of his partner (L545 as against @ 9,000), although they shared the profits equally, was not a mandatory reason for refusal of permission if other factors suggested that the case 'in the round' had sufficient "merit"; and, taking into account J's personality as a valuable asset in the restaurant, the adjudicator had allowed his appeal. The Tribunal, reversing that decision, had held that though the merits of the business were not in issue J was not (in the words of para 21 of HC 80 n1) "devoting assets of his own to the business proportional to his interest in it", and that having 'failed to meet one of the requirements of para 21' he did not qualify as a business man under the immigration rules. n1 Paragraph 21 of HC 80 is set out on p 72, post. Held: (i) The rules (HC 80) were intended to provide guidance as to the practice to be followed and were not to be construed too rigidly; and when para 21, after stating that applications were to be "considered on merits", went on to provide that permission would depend on a number of factors "including" certain specified factors, the paragraph was not specifying prerequisites for the grant of permission but rather specifying factors which must be taken into account, failure to comply with any one of which would not necessarily be fatal to the application; accordingly the adjudicator was right in his approach when he decided he should look at the case 'in the round' after considering all revelant factors; (pp 73-74) (ii) the Tribunal had put too narrow a meaning on the word "assets": the word must refer to 'assets having some economic value in the sense of a financial contribution or something of that kind'; and in reaching a conclusion 'in the round' in the present case the personality of the applicant was a relevant factor to the success of the restaurant of which account should rightly be taken. Per curiam: It was in failing to look at the matter in the round as a matter to be decided on the merits, and regarding themselves as bound by one particular factor and treating it as a prerequisite to the grant of permission, that the Tribunal erred in point of law (p 74).Counsel:
J. J. Smyth for the applicant. Harry Woolf for the respondent. PANEL: Lord Widgery CJ, Michael Davies and Robert Goff JJJudgment One:
LORD WIDGERY CJ: I will ask Robert Goff J to give the first judgment.Judgment Two:
ROBERT GOFF J: Mr John Maxwell Clarke Joseph applies for an Order of Certiorari to remove into this Court and quash a decision of the Immigration Appeal Tribunal dated 28 January 1976. The history of the matter is as follows. Mr Joseph came into this country on 2 April 1971 for a period of 6 months. In September 1971 he applied to remain here permanently in order to set up a business enterprise, a restaurant in Falmouth. He wished to set up a partnership with a Mr Ruddick and he was allowed two extensions of his visitor's permit to allow the Secretary of State to consider his application. On 26 April 1974 the Secretary of State refused his application. n2 He then appealed to an adjudicator pursuant to the Immigration Act 1971, and on 8 April 1975 the adjudicator allowed his appeal. The Secretary of State then appealed to the Immigration Appeal Tribunal, and that appeal was heard on 28 January 1974 when the Tribunal decided to allow the appeal. n2 The notice of refusal was in the following terms:"You have applied for your leave to enter to be varied so as to permit you to remain in the United Kingdom as a partner in the firm of 'Restaurant 21' at 21 Church Street, Falmouth, but the Secretary of State is not satisfied that you have been devoting assests of your own to the business proportional to your interest in it, that you would be able to bear your share of any liabilities the business might incur or that your share of the profits is sufficient for you to support yourself without supplementing your business activities by employment for which a work permit is required. The Secretary of State is not satisfied that your part in the business does not amount to disguised employment. The Secretary of State therefore refuses your application."
In order to understand the basis of Mr Joseph's application to this Court it is necessary to refer to the Immigration Rules for Control after Entry, HC 80. Those rules were made by the Home Secretary under powers conferred on him by s 3 of the Act of 1971, and they provide for the practice to be followed in the administration of the Act for regulating the stay of persons not having the right of abode. Two of the rules are of particular relevance in the present case. Paragraph 4 is one of two rules entitled "General Considerations" and provide as follows:"The succeeding paragraphs set out the main categories of people who may be given limited leave to enter and who may seek variation of their leave, and the principles to be followed in dealing with their applications, or in initiating any variation of their leave. In deciding these matters account is to be taken of all the relevant facts; the fact that the applicant satisfies the formal requirements of these rules for stay, or further stay, in the proposed capacity is not conclusive in his favour...."
Paragraph 21 is one of two rules under the heading "Businessmen and self-employed persons", and provides as follows:"People admitted as visitors may apply for the consent of the Secretary of State to their establishing themselves here for the purpose of setting up in business, whether on their own account or as partners in a new or existing business. Any such application is to be considered on merit. Permission will depend on a number of factors, including evidence that the applicant will be devoting assets of his own to the business, proportional to his interest in it, that he will be able to bear his share of any liabilities the business may incur, and that his share of its profits will be sufficient to support him and any dependants. The applicant's part in the business must not amount to disguised employment, and it must be clear that he will not have to supplement his business activities by employment for which a work permit is required. Where the applicant intends to join an existing business, audited accounts should be produced to establish its financial position, together with a written statement of the terms on which he is to enter into it; evidence should be sought that he will be actively concerned with its running and that there is a genuine need for his services and investment. ... A person admitted as a businessman in the first instance may be granted an appropriate extension of stay if the conditions set out above are still satisfied at the end of the period for which he was admitted initially."
Both the adjudicator and the Appeal Tribunal had regard to para 21 in reaching their respective decisions in this case. One matter was of particular concern to both tribunals, and that was the contribution which Mr Joseph made to the funds of the partnership; because Mr Joseph's contribution was far less than the contribution of his partner. As against @ 9,000 contributed by Mr Ruddick, only @ 545 was contributed by Mr Joseph. Even so, the profits of the business were shared equally between the two partners. It was however found as a fact that the personality of Mr Joseph was an important contributory factor in the success of the business venture, this restaurant in Falmouth. Paragraph 21 provides, as I have already indicated, that permission will depend on a number of factors, including evidence that the applicant will be devoting assets of his own to the business proportional to his interest in it. The adjudicator concluded, however, that the fact that Mr Joseph's contribution was disproportionate was not a mandatory cause for refusal of permission. He said:"I interpret this as being to a degree discretionary, not necessary to be applied rigidly where other factors suggest that the case in the round has sufficient merit...."
The Appeal Tribunal in allowing the appeal of the Secretary of State adopted a different approach. After referring to the same part of para 21, it is stated in the Tribunal's reasons that:"The evidence referred to" -- that is the evidence referred to in the rule -- "is not itemised in the paragraph by way of example but is in our opinion a prerequisite to a successful application."
The Tribunal's conclusion is expressed in the following terms:"In this case the merits of the particular business are not in issue. It may be from the further evidence before us and the statements we have heard that at the date of the decision appealed against the respondent was able to bear his share of any liabilities the business might incur and his share of profits was sufficient to support him. However we are in no doubt that at that date the respondent was not devoting assets of his own to the business proportional to his interest in it, that is, his legal entitlement under the partnership agreement. As we find that the respondent failed to meet one of the requirements of para 21 we allow the appeal."
Mr Smyth on behalf of the applicant submitted that the construction of the rule favoured by the Appeal Tribunal was wrong in point of law. I for my part accept that submission. These rules, which are intended to provide guidance as to the practice to be followed, are not in my judgment to be construed too rigidly. Furthermore, the part of para 21 in question in this case is preceded by a statement that the application is to be "considered on merits". When the paragraph goes on to provide that "permission will depend upon a number of factors, including" certain specified factors, the paragraph is not in my judgment specifying prerequisites for the grant of permission. It is specifying factors which must be taken into account, but failure to comply with any one of them will not necessarily be fatal to the application. As the adjudicator put it, after considering all the relevant factors, the case has to be looked at in the round. That is because, as the paragraph provides, any application is to be "considered on merits". In my judgment the Appeal Tribunal put a wrong construction on para 21 and they therefore erred in law in a respect material to their decision. Accordingly I for my part would rule that the decision of the Tribunal should be quashed. Mr Woolf has urged upon us that the words in question should be construed as a prerequisite to the grant of permission by referring us back to para 33 in HC 79. In my judgment, having looked at para 33, I do not think it supports Mr Woolf's construction because the words there used are different, certainly in respect to this particular requirement, and I do not see how it assists us to look at this particular rule in construing the words used in para 21, which in my judgment clearly provide that the matter is to be "considered on merits" and therefore must be looked at in the round after considering all relevant factors. Finally Mr Smyth made a further submission. The Appeal Tribunal in relation to the words in para 21 "the applicant will be devoting assets of his own to the business, proportional to his interest in it" concluded that in this context the words mean financial assets and are not intended to mean assets of an intangible nature. Mr Smyth urged upon us that the construction was wrong, that the words "assets" should be given a broad meaning wide enough to include in this case the personality of the applicant which was held to be a contributory factor to the success of the business. In my judgment the construction placed by the Tribunal on this particular word in the rule was broadly correct. The word "assets" must not be given too narrow a meaning, but it must refer to assets having some economic value, assets in the sense of a financial contribution or something of that kind to the business itself. Even so, there have to be taken into account not merely that factor but all other factors which are relevant to the decision in reaching a conclusion in the round on the particular application. In this case it would have been right to take into account as a relevant factor the personality of the applicant as being a relevant factor to the success of the business. It was in failing to look at the matter in the round as a matter to be decided on the merits, and regarding themselves as bound by one particular factor and treating it as a prerequisite to the grant of permission, that in my judgment the Tribunal erred in the point of law. For these reasons I would rule that the decision of the Tribunal be quashed.