Ainooson v. Secretary of State for the Home Department

AINOOSON v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/2134/72(98)

Immigration Appeal Tribunal

[1973] Imm AR 43

Hearing Date: 12 January 1973

12 January 1973

Index Terms:

Trainee -- Training on the job -- Extension of stay -- Department of Employment consulted by Home Office -- Report of Department that training not satisfactory -- Extension refused -- Discretion of Secretary of State under the Immigration Rules -- Lavender's Case ([1970] 3 All E.R. 871) distinguished -- Cmnd 4295, para 18.

Held:

The appellant citizen of Ghana entered the United Kingdom in 1968 as a trainee approved by the Department of Employment for industrial training with a named firm. Towards the end of 3 years of approved training the firm wrote to the Department of Employment that the appellant wished to remain permanently in their employment and that they were anxious to retain him. The Department informed the Home Office, and on the latter's reference back reported that they did not recommend a further extension as a trainee and considered the appellant's post to be permanent employment n1. The respondent refused the application under para 18 of Cmnd 4295. The appellant filed a notice of appeal, and the firm wrote to the Home Office offering a further period of training in a different department. The Home Office referred the new offer to the Department of Employment, and on the latter reporting that they did not consider the training now offered to be satisfactory the respondent maintained his refusal. n1 The phrase "permanent employment" was defined by the Home Office as meaning "employment for which a voucher is required" (letter d. 5.10.72). Paragraph 18 of Cmnd 4295 (Commonwealth Citizens: Control after Entry) reads: --

"When a trainee who requires permission from the Department of Employment... to change his employment applies for an extension of stay, it may be granted if the Department report that he is continuing his training and that this is still satisfactory."

The adjudicator, following the decisions of the Tribunal in other trainee appeals, Latiff ([1972] Imm. A.R. 76) and Brizmolun ([1972] Imm. A.R. 122), dismissed the appellant's appeal, but gave leave to appeal to the Tribunal in the hope that the Tribunal might reconsider the application of the paragraphs in Cmnd 4295 relating to extensions of stay for trainees in the light of the High Court decision in H. Lavender & Son Ltd v The Minister of Housing & Local Government ([1970] 3 All E.R. 871, per Willis, J.). Counsel for the appellant submitted, inter alia, that Lavender's Case made it clear that when a Minister was required to make a decision on a case he could not shelter behind the decision of a Minister of another Department but must consider all the facts and exercise his own discretion. Held: (dismissing the appeal), Lavender's Case was distinguishable from the trainee cases under the immigration legislation because (a) the respondent Minister in Lavender's Case had inhibited himself from exercising a proper discretion by following a predetermined rule of policy to consult and accept the view of another Government Department although there was no statutory requirement for that other Department to be consulted by him at any stage; n2 and (b) in the present case Immigration Rules approved by the legislature set out the way in which the discretion to grant an extension of stay to a trainee may be exercised, and the reference by the Home Office Department to the Department of Employment was made in compliance with para 18 of those Rules, Cmnd 4295 (see p 47, post). n2 See pp 46, 47 and footnote 9, post. Latiff's Case ([1972] Imm. A.R. 76) and Brizmohun's Case ([1972] Imm A R 122) followed.

Counsel:

E. Cotran (counsel) for the appellant. R. W. B. Hurley for the respondent. PANEL: P. N. Dalton Esq (Vice-President), J. H. Bowman Esq, Sir Gordon Whitteridge.

Judgment One:

THE TRIBUNAL: The appellant, Mr Billy Andoh Ainooson, is a citizen of Ghana born on 17 November 1935. Before his arrival in the United Kingdom on 9 September 1968 he had obtained an entry certificate on the recommendation of the Department of Employment to enable him to undertake a 2 year period of training in machine work techniques in railcar manufacture with D. Wickham & Co Ltd in Ware. In August 1970 the Department of Employment reported that they had decided to recommend an extension of the training period for a further 12 months as it was possible that the firm had underestimated the time required to cover all aspects of machine work and fitting relating to railcars. The appellant, who had been on holiday in Ghana, was admitted to the United Kingdom on 31 October 1970 for 12 months to enable him to resume his training with D. Wickham & Co Ltd. On 14 July 1971 the firm wrote to the Department of Employment stating that Mr Ainooson wished to remain permanently in their employment and that they were anxious to retain his services. The Department having informed the Home Office, subsequently reported on 18 October 1971 that they did not recommend a further extension of the appellent's stay as a trainee and that they considered his post with the firm to be permanent employment. The Secretary of State refused the application under the terms of para 18 of Cmnd 4295. The appellant appealed against the decision, and D. Wickham & Co Ltd also wrote to the Home Office stating that they would be willing to offer him a further period of training in their welding and fabricating department. The Department of Employment was again consulted and they reported that they did not consider the offer of training to be satisfactory. In view of this advice and on consideration of the grounds of appeal the Secretary of State found no grounds for reversing his original decision. At the hearing of the appeal before the adjudicator (Mr E. J. T. Housden), Mr E. Cotran for the appellant put forward three arguments, as he did before the Tribunal. The first argument was that paras 18 and 19 of Cmnd 4295, on which he said the Secretary of State relied, were not applicable in this case. With respect, we do not think that the Secretary of State did rely on para 19, as only para 18 is mentioned in the Home Office statement. Nevertheless, we agree with the submission and also with Mr Housden that para 19 does not apply to the appellant. Paragraph 18 of Cmnd 4295 is as follows: --

"When a trainee who requires permission from the Department of Employment and Productivity to change his employment applies for an extension of stay, it may be granted if the Department report that he is continuing his training and that this is still satisfactory."

For the reasons he set out in his determination Mr Housden considered that para 18 does apply to the appellant. Mr Cotran's next submission was that the cases of Latiff n3 and Brizmohun n4 on which the respondent relied were clearly distinguishable from this present case. The reason was because in both cases the Department of Employment had given cogent reasons why they did not regard the training in question as satisfactory, whereas in the present case no reasons had been given. Mr Housden agreed that reasons had been given in both cases. However since the Tribunal had stated in Latiff's Case that the decision of the Department of Employment cannot be questioned by the respondent or the Tribunal Mr Housden said that it followed from such statement, to which he was bound as a matter of precedent to defer, that the giving of reasons by the Department of Employment to the Home Office or the Tribunal was legally unnecessary. n3 [1972] Imm A R 76; TH/391/70. n4 [1972] Imm A R 122; TH/1049/71. Mr Cotran's final submission was that the cases of Latiff and Brizmohun were wrongly decided and that the correct approach was that of Mr Healy who was the adjudicator in the case of Brizmohun. Mr Housden considered that he was bound by these two decisions of the Tribunal which he could not distinguish from the present appeal. Towards the end of his determination Mr Housden said that the cases of Latiff n5 and Brizmohun n6 were determined without either the adjudicators or the Tribunal taking into account a relevant High Court decision. This is the case of H. Lavender & Son Ltd v Minister of Housing and Local Government n7. Mr Housden hoped that the Tribunal would be able to reconsider para 18 and 19 in the light of Lavender. Mr Housden dismissed the appeal but granted leave to appeal to the Tribunal on the ground that an arguable point of law was involved. n5 [1972] Imm A R 76; Th/391/70. n6 [1972] Imm A R 122; TH/1049/71. n7 [1970] 3 All E.R. 871. The grounds of appeal before the Tribunal were as follows: -- "1. The learned adjudicator erred in applying para 18 of Cmnd 4295 to the case. 2. The learned adjudicator was wrong in finding that this case was indistinguishable from the cases of Latiff n5 and Brizmohun n6. n5 [1972] Imm A R 76; Th/391/70. n6 [1972] Imm A R 122; TH/1049/71. 3. The learned adjudicator wrongly followed the cases of Latiff and Brizmohun especially in view of his reference to the case of Lavender v Ministry of Housing and Local Government n7. n7 [1970] 3 All E.R. 871. 4. The learned adjudicator, having found it disquieting that no reasons were given by the DEP for its decisions, and having criticised 'the action of one Government department in hiding behind another' should have allowed the appeal." Mr Cotran in his submissions on behalf of the appellant dealt with each of the grounds of appeal. Concerning the first ground of appeal Mr Cotran submitted that the appellant has not sought to change his employment, and that is indeed true but we agree with the adjudicator that the phrase "who requires permission.... to change his employment" does not define the trainee by reference to the application he is making but relates to the type of trainee to whom para 18 refers. In this case the appellant was admitted as an industrial trainee and it is not in dispute that one of his conditions of entry was that he required the permission of the Department of Employment to change his employment. We agree with Mr Housden's finding that para 18 is applicable to the appellant. In seeking to distinguish the cases of Latiff n5 and Brizmohun n6 from the present case Mr Cotran submitted that in both cases cogent reasons were given for the refusals of the applications for extensions of stay. In this case, he said, no reason has been given, since it is not a proper reason under r 7 of the Immigration Appeals (Procedure) Rules 1970 merely to state that the Department of Employment has not approved. A reason is, however, given in para 6 of the Home Office explanatory statement. After receiving the letter of 14 July 1971 from D. Wickham & Co Ltd the Department of Employment did not recommend a further extension of the appellant's stay as a trainee since they considered his post with the firm to be permanent employment. As the firm had said in the letter asking if it would be possible for Mr Ainooson to remain permanently with them, that he was a very good tradesman in all aspects of machine work and fitting, it seems to us that the Department of Employment was justified in concluding that the appellant was now a permanent employee. When a further offer of training was conveyed in the letter of 9 March 1972 the Department of Employment merely reported that they did not consider the offer of training to be satisfactory and gave no specific reason, but we do not think that in view of the terms of the previous letter the Department's attitude was surprising. Having said that, we consider, following the cases of Latiff and Brizmohun, that the Department of Employment does not, in law, have to give reasons, when, on a reference under para 18, they report that the training is not considered satisfactory. We agree with the adjudicator that neither of these two cases is distinguishable from the present appeal on the basis suggested by Mr Cotran. n5 [1972] Imm A R 76; Th/391/70. n6 [1972] Imm A R 122; TH/1049/71. Mr Cotran submitted that Lavender's Case n8 made it clear that one Minister cannot shelter behind the decision of another Minister and that when he is required to make a decision he must consider all the facts. n8 [1970] 3 All E.R. 871. In Lavender's Case n8 the party aggrieved sought to show that the Minister of Housing disposed of his case by following a predetermined rule of policy to consult and accept the view of the Department of Agriculture, and the Minister had thus inhibited himself from exercising a proper discretion. As the judgment shows, there was no statutory requirement for the Minister of Agriculture to be consulted at any stage n9. Under the Immigration Rules approved by the legislature the way the discretion to grant an extension of stay to a trainee may be exercised is set out; it is that the discretion may be exercised by the Secretary of State for the Home Department if the Department of Employment have reported that the trainee is continuing his training and it is still satisfactory. The reference to the Department of Employment was not therefore a predetermined rule of policy of the Home Office without reference to the merits of the case, nor was the action of referring the application to another department "the action of one Government department in hiding behind another" but a compliance with the requirement of para 18 of Cmnd 4295. For these reasons the appeal is dismissed. n8 [1970] 3 All E.R. 871. n9 The respondent Minister in Lavender's Case in dismissing the appeal of the applicants against the refusal of the planning permission which they sought (viz to extract certain minerals from an agricultural holding) stated his reasons in a letter, inter alia as follows: "It is the Minister's present policy that land in the reservations should not be released for mineral working unless the Minister of Agriculture, Fisheries and Food is not opposed to working. In the present case the agricultural objection has not been waived, and the Minister has therefore decided not to grant planning permission for the working of the appeal site." WILLIS, J, on the applicant's motion for an order under s 179 of the Town & Country Planning Act 1962, to quash the Minister's order, referred, inter alia, to the absence of any statutory requirement for the Minister of Agriculture to be consulted by the respondent Minister at any stage either before or after an appeal to him under s 23 of the 1962 Act, and concluded his judgment with these words (ibid at p 880): "I think that the Minister failed to exercise a proper or indeed any discretion by reason of the fetter which he imposed on its exercise in acting solely in accordance with his stated policy; and further that on the true construction of the Minister's letter the decision to dismiss the appeal, while purporting to be that of the Minister, was in fact, and improperly, that of the Minister of Agriculture."

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Clinton Davis, Simons & Co.