Latiff v. Secretary of State for the Home Department

LATIFF v SECRETARY OF STATE FOR THE HOME DEPARTMENT TH/391/70

Immigration Appeal Tribunal

[1972] Imm AR 76

Hearing Date: 19 April 1971

19 April 1971

Index Terms:

Jurisdiction -- Department of Employment decisions -- Grant of employment vouchers and approval of training schemes responsibility of Department of Employment -- Decisions not subject to appeal under Immigration Appeals Act 1969.

Trainee -- Training on the job -- Scheme operated for members of the Commonwealth -- Department of Employment's responsibility -- Decisions of Department not subject to appeal under Immigration Appeals Act 1969 -- Cmnd 4295 para 19.

Held:

Approval of training schemes under which members of the Commonwealth may be admitted to the United Kingdom is the responsibility of the Department of Employment and decisions of that Department in respect of individual applications (whether for training on the job or for employment vouchers) will not be called in question by the Home Department. Nor can they be the subject of appeal under the Immigration Appeals Act 1969.

Introduction:

The facts in this appeal by a student of aeronautical engineering and the submissions of the parties are set out in the Determination of the Tribunal.

Counsel:

K. S. Nathan of the United Kingdom Immigrants Advisory Service, for the appellant. C. F. Woodiss for the respondent.

PANEL:

Sir Derek Hilton (President), Sir Gordon Whitteridge, G. J. Brown, Esq.

Judgment One:

THE TRIBUNAL: This appeal was against the determination of an adjudicator (Mr. D. L. Neve) dismissing the appellant's appeal against the refusal of the respondent to vary the conditions of admission of the appellant so as to permit him to remain in the United Kingdom in the employment of Light Plane Maintenance Services Ltd. The appellant, who is a citizen of Singapore, was born on 21 May 1947. On 8 May 1966 he was admitted to the United Kingdom for a period of 12 months as a student to undergo a three year engineering course at the College of Aeronautical and Automobile Engineering. Subsequently he was granted extensions of stay until 31 August 1969. The appellant was a full time student at the College from 13 May 1966 to 20 December 1968 being awarded a first class granding in his aeronautical engineering diploma. The College then arranged for the appellant to obtain his practical training at Light Plane Maintenance Services Ltd. On 8 October 1969 this company applied for a 6 month extension of stay for the appellant to enable him to complete his training and sit the Board of Trade 'C' Licence Examination. An extension of stay to 28 February 1970 was granted. A further application was made on 6 February 1970 for a 12 month extension of stay to enable the appellant to become a trainee engineer with Light Plane Maintenance Services Ltd. This application was referred to the Department of Employment and Productivity (DEP) who advised that the proposed training could not be considered under their Industrial Training Scheme and was viewed as employment. The application was refused and an extension granted until 30 June 1970. As a result of further representations the case was again referred to the DEP who confirmed their earlier decision. This application was refused as the proposed employment was such that a voucher was required. An extension of stay until 15 October 1970 was granted. The appellant appealed against this decision, his grounds of appeal being -- "(1) I wish to continue in my employment with Light Plane Maintenance Services Ltd. in order to obtain sufficient aeronautical experience to become a licenced aircraft engineer (2) that the Secretary of State misdirected himself in holding that the appellant requested an extenion requiring an employment voucher". At the hearing before the adjudicator evidence was given by the appellant, Mr. E. E. Chick, Chief Engineer of Light Plane Maintenance Services Ltd., Mr. E. P. Morris, Maintenance Manager of that Company and Mr. D. C. Anderson of DEP. It was established that the appellant had done well in his training and that at the second attempt he had passed two-thirds of the subjects in the examination leading to a 'C' licence. He wished later to sit for the 'A' licence examination. In his evidence Mr. Anderson stated that in the view of the DEP what the appellant was then doing was not training under the scheme operated for members of the Commonwealth. There were certain criteria laid down for such schemes and the appellant's position did not meet two of these (1) the training was not of a kind and standard approved by the DEP for the purposes of the scheme and (2) the period of training was not specified in advance. The adjudicator dismissed the appeal but gave leave to appeal to the Tribunal. He concluded his determination as follows: -- "To return to the other issues in this appeal, the appellant's case is that, whatever the DEP may say, the appellant is in fact a trainee: it is true that he receives a full salary, but the prime object of his work is to obtain experience and instruction, to enable him to pass his examinations. Such training is not available in his own country and -- on the DEP's own admission -- the object of the training scheme for persons from developing countries is to train them to do a job in the country from which they come. The appellant says that he intends to return to Singapore when his training is complete -- i.e. when he has passed his examiations. The appellant is evidently an intelligent and hard-working young man who is highly regarded by his employers, and if it were in my power properly to help him I would like to do so. But I have come to the conclusion that it is not. To obtain both the licences he seeks, he would have to stay here for a further 18 months. During this time he would be in a job for which an employment voucher would normally be necessary. One of the factors considered in granting such vouchers is whether the job could be filled by a native of his country. With unemployment in this country at the moment increasing, this is no doubt a factor to which some importance is attached. For the above reasons I think this appeal must fail. However, I would like to make a strong recommendation. The appellant is eligible to take the remainder of his "C" licence examination again in April, as I have mentioned. This is the culmination of several years hard work, and I think it would be very harsh indeed to deprive the appellant of this opportunity. It is only a matter of another six or seven weeks and I recommend that consideration should be given to allowing him to postpone his departure until then. The appeal is dismissed." The appellant gave notice of appeal to the Tribunal with the following grounds of appeal: -- "1. That the learned adjudicator erred in law and was not justified on the facts in holding or finding that the appellant was in employment, for the following reasons: -- (a) Because the learned adjudicator did not take into account that before the respondent took the decision the appellant was not given an opportunity to be heard and to produce evidence, that what he was doing was training and not employment, which was unreasonable and prejudicial to the appellant. (b) Because the learned adjudicator failed to test adequately or at all the oral and documentary evidence produced by the appellant on the probabilities of his case. (c) Because the learned adjudicator erred in law in taking into account that unemployment in this country at the moment was increasing and to have dismissed the appeal on the criteria outlined by Mr. Anderson without questioning it. (d) Because the learned adjudicator failed to take cognisance of the evidence of the expert witnesses relating to training produced by the appellant. (e) Because the learned adjudicator ought to have considered the merits of the case on the evidence, whether or not the appellant's request was for training or for employment. (f) Because the learned adjudicator did not consider all the relevant factors made on behalf of the appellant, in the final submission. 2. The learned adjudicator erred in holding that rule 19 of Cmnd Paper 4295 was applicable to this case, when this was a case where discretion ought to have been exercised, because the last extension was granted on this discretion. 3. The learned adjudicator was wrong in concluding that he had no powers to allow the appeal in view of Section 8(2) of Immigration Appeal Act 1969 which provides that an adjudicator may review any determination of fact on which the decision or action appealed against was based. In the above premises the learned adjudicator should have allowed this appeal." At the adjourned hearing of the appeal before us Mr. Anderson of DEP at our request gave further evidence. He confirmed that the appellant had not been interviewed by his Department. A decision had however been taken by DEP that the appellant's training did not fit its requirements for training as such. The requirements of the Air Registration Board leading to 'A' and 'C' licences were not training. Mr. Anderson handed in a telegram from Singapore stating that certain training was available there but he agreed that 'A' and 'C' licences could not be obtained in Singapore. Under DEP requirements anyone coming from Singapore to the United Kingdom to obtain licences would have to be employed in order to get practical experience. This could not be done as a trainee. On behalf of the appellant Mr. Nathan made the following submissions: -- (1) he accepted that the appellant was in employment but he was also a trainee until he obtained his 'A' and 'C' licences; (2) as there was no training scheme in the aircraft industry the company in question had taken upon itself the burden of training the appellant; (3) the appellant met the criteria laid down by the DEP, particularly as his training had been sponsored on personal and financial grounds by the Public Service Commission in Singapore and he had always said that he wished to obtain 'A' and 'C' licenses for which a period of not more than two years was required; (4) the case should be treated on its own merits as the appellant was still a student for the purpose of obtaining the licences. In reply Mr. Woodiss submitted, on behalf of the respondent: -- (1) the immigration law and regulations defined clearly the responsibilities of the Home Office and the DEP. There was no provision for advice or collaboration between the two ministries. (2) The Home Office had no power to question a decision of the DEP. Under the Immigration Appeals Act 1969 there was no right of appeal against a decision of the DEP in refusing an employment voucher and it followed that there was also no right of appeal against a decision by the DEP that a proposed form of training was not satisfactory or suitable for the trainee, under the provisions of para 19 of Cmnd 4295. (3) The Home Office always consulted the DEP on questions of training. The only relevant factor in this case was that the DEP did not consider the appellant to be a trainee but that he was in employment for which a voucher was required. We found that the appellant had successfully completed his course of studies at the College of Aeronautical and Automobile Engineering followed by six months' practical training. This was the course of study for which he was admitted as a student. To assist him he was given a short extension of stay for further practical training. His case was then referred to the DEP who stated that if the appellant continued with the firm on the terms proposed he would be considered to be in full time employment for which a voucher was required. This decision of the DEP cannot be questioned by the respondent or the Tribunal and we therefore dismissed the appeal on the grounds that the decision of the respondent was in accordance with the law and the immigration rules applicable to the case.

DISPOSITION:

Appeal dismissed.