Gomas v. Secretary of State for the Home Department

GOMAS v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT TH/841/71

Immigration Appeal Tribunal

[1972] Imm AR 131

Hearing Date: 22 September 1971

22 September 1971

Index Terms:

Jurisdiction -- Decision refusing variation of conditions purportedly taken under paragraph in Cmnd 4298 governing entry into United Kingdom -- Refusal in accordance with immigration rules governing control after entry, Cmnd 4295 -- Whether jurisdiction in Tribunal and adjudicator to determine that the decision was in accordance with the immigration rules applicable -- Immigration Appeals Act 1969, s 8(1) & (2) -- Cmnd 4298 para 28; Cmnd 4295, r 7, r 16.

Held:

The appellant citizen of India entered the United Kingdom as a visitor; he subsequently enrolled as a student and was granted extensions of stay. In 1970 he applied, through a firm employing him, for an extension to enable him to continue in their employment. This was refused by the respondent purportedly acting under the terms of Cmnd 4298 para 28, governing the entry of persons wishing to take up or look for employment. The decision was in fact in accordance with the immigration rules applicable to Commonwealth visitors and students already in this country who seek variation or revocation of conditions of entry in order to remain here in employment (r 7 and r 16 of Cmnd 4295) n1. n1 Rules 7 and 16 of Cmnd 4295 are set out on page 132, post. It was contended by the appellant that the decision was wrong in law, since it was taken under para 28 of Cmnd 4298, and that neither the adjudicator nor the Tribunal had jurisdiction to substitute other reasons for the refusal, i.e. under the rules applicable in Cmnd 4295, and that they were precluded from so doing by s 8 of the Immigration Appeals Act 1969 n2. Further, it was contended that the decision involved the exercise of the respondent's discretion. n2 Section 8, so far as here relevant, reads: "8. -- (1)... an adjudicator who hears an appeal under this Part of this Act -- (a) shall allow the appeal if he considers -- (i) that the decision... against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision... involved the exercise of a discretion by the Secretary of State... that the discretion should have been exercised differently; and (b) in any other case shall dismiss the appeal. (2) For the purposes of paragraph (a) of the foregoing subsection the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of paragraph (a)(ii) of that subsection no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so. Held: (i) Under s 8(1) of the Act of 1969 the Tribunal had to consider whether the decision appealed against was in accordance with the law or any immigration rules applicable, and there was no reason in law or commonsense why the adjudicator or the Tribunal should not say that the original decision was in accordance with the law and the rules, not because of the reasons then given but because there were rules specifically applicable to the case; and because there were relevant immigration rules applicable in the present case, s 8(2) was also applicable to enable the adjudicator to review any determination of a question of fact on which the decision was based. (ii) Being in accordance with the immigration rules, the respondent's decision could not be treated as having involved the exercise of his descretion.

Counsel:

Bruce Coles, counsel, for the appellant. Mrs. G. Catto for the respondent. PANEL: P. N. Dalton Esq. (Vice-President), L. W. Chapman Esq., G. R. D. Hews Esq.

Judgment One:

THE TRIBUNAL: In his determination, Mr. E. J. T. Housden set out the facts which were not in dispute as follows: --

"The appellant Thomas Gomas, who was born in India on 4 September 1943, was admitted to the United Kingdom in 1966 as a visitor. He subsequently enrolled at the L.T.C. School of English, and later at the Sir John Cass College, and was granted extensions to 1969 of his permitted stay in the United Kingdom. As a result of enquiries made towards the end of 1969, it was found that the appellant had not been attending the Sir John Cass College regularly and had enrolled for part-time classes only; the granting of a further extension beyond 31 December 1969 was made conditional upon his producing evidence of enrolment for full-time day classes, and of his means. On 30 December 1969 Mr. Spivack, a director of Regina Furniture Ltd., applied to the Home Office asking that the appellant be permitted to remain in the United Kingdom in the employment of that company, of which Mr. Gomas had become, in effect, factory manager. After a refusal of the application and further representations by Mr. Spivack, a final application -- that the appellant be permitted to stay in this country as an employee of Regina Furniture Ltd., in order to train his successor, was refused on 4 December 1970."

Mr. Housden said that he agreed with Mr. Coles that para 28 of Cmnd 4298, upon which the refusal to allow Mr. Gomas to remain in the United Kingdom purported to be based, was irrelevant since it clearly deals with persons wishing to enter the United Kingdom and Mr. Gomas is already here. Mr. Housden was not absolutely certain whether the appellant was here as a visitor or a student but he thought it made little difference, since the relevant rules in Cmnd 4295 are so similar. These are: -- 7. A commonwealth citizen admitted as a visitor cannot stay here permanently in employment. Commonwealth citizens coming to settle and take employment in the United Kingdom are admitted only if they hold vouchers issued to them by the Department of Employment and Productivity before they come. 16. It is not permissible for a student to stay here in employment when his studies are over, and extensions of stay will not be granted for this purpose. Whichever the appellant is, be it visitor or student, Mr. Housden said that there was an unambiguous rule dealing with this case. The adjudicator then referred to s 8 of the Immigration Appeals Act 1963 n3 which enables the adjudicator only to allow appeals if he considers that the decision or action in question was not in accordance with the law or the immigration rules, or that, where a discretion exists, that discretion should have been exercised differently. Since Mr. Housden had no doubt in his mind that the decision taken was in accordance with both the law and immigration rules he dismissed the appeal. n3 Section 8(1) & (2) of the Act of 1969 so far as material is set out in footnote 2, ante. In his submissions to the Tribunal Mr. Coles argued that the decision to refuse the application to permit the appellant to remain in the United Kingdom was wrong in law, since it was taken under the provisions of para 28 of Cmnd 4298. Cmnd 4298, applies to persons seeking to enter the United Kingdom and not to people already here seeking a variation of their conditions of entry. He said Mr. Housden had got round the mistake made by the Home Office by saying that Cmnd 4295 applied, and Mr. Coles submitted that the adjudicator had no power to substitute a reasoning based on Cmnd 4295, and he also submitted that this Tribunal has no power to substitute its own reasons for coming to the same decision as the Home Office, that is to say to refuse the appellant's application. He argued that the Tribunal's powers on appeal are based exclusively on s 8 of the Act of 1969 and that no power is given in that section for the sub-stitution by the Tribunal of its own decision for that of the Home Office, except when the Tribunal allows an appeal. It is of course plain that para 28 of Cmnd 4298 was not relevant in considering the application that the appellant should remain in the employment of Mr. Spivack. It is, however, equally plain that there are provisions, unambiguous provisions as Mr. Housden described them, which were relevant in considering the appellant's application. These rules, according to whether Mr. Gomas was to be considered a visitor or still a student at the time of the application are r 7 and r 16 of Cmnd 4295. Under s 8(1) of the Act this Tribunal has to consider whether the decision appealed against was "in accordance with the law or any immigration rules applicable to the case", and Mr. Coles has not given any reason why in law or in common sense the adjudicator or the Tribunal is not permitted to say that the original decision, not because of the reasons then stated but because there are rules which specifically apply to the case, was in accordance with the law and the rules. Mr. Coles also submitted that s 8(2) of the Immigration Appeals Act 1969 does not apply in this case, since Cmnd 4298 does not apply and that there was unlimited discretion in this case. Whatever the merits of that argument we do not doubt that, because there are relevant immigration rules applicable to this case, s 8(2) does apply. The decision of the Secretary of State therefore, being in accordance with the immigration rules, cannot be treated as having involved the exercise of his discretion. Mr. Coles also urged, as he did before Mr. Housden, that there were special circumstances in this case. We also do not doubt that Mr. Gomas is an extremely useful citizen but we can only reiterate what Mr. Housden said, namely that the rules are clear as regards the employment of Commonwealth citizens in the United Kingdom and leave no room for special treatment.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

L.M. Doffman & Co.

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