Tally v. Secretary of State for the Home Department

TALLY v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/2173/74(352)

Immigration Appeal Tribunal

[1975] Imm AR 83

Hearing Date: 4 October 1974

4 October 1974

Index Terms:

Employment -- Visitor from Commonwealth admitted on a condition prohibiting employment -- Application to Home Office by British Rail to employ him as a diesel fitter -- Refusal of application without reference to Department of Employment -- Whether application should have been referred to Department of Employment -- Meaning of word "normally" in the relevant immigration rule -- HC 80, para 5.

Held:

The appellant, a citizen of Mauritius, was admitted to the United Kingdom as a visitor for 4 weeks. A condition of his admission prohibited him from entering employment. He did not leave at the expiry of the 4 weeks nor apply for an extension of stay. Two months later an application was made to the Home Office by a depot manager of British Rail requesting permission to employ the appellant as a diesel fitter. The application was refused under para 5 of HC 80 without reference to the Department of Employment. n1 On his appeal to an adjudicator, and on his further appeal to the Tribunal, it was submitted for the appellant that his application should have been referred for consideration by the Department of Employment, as British Rail's request for his skilled services took his application out of the 'normal' category referred to in para 5 of HC 80, and the Department of Employment should have been given an opportunity to consider whether his proposed employment should be approved. n1 Paragraph 5 of HC 80 provides as follows: --

"In regard to variation of leave to enter with a view to employment, the general position is that where a person wishes to come to work in the United Kingdom the employer must have obtained a work permit before the person sets out; and people admitted as visitors or students or for other temporary purposes have under these rules no claim to stay here in employment. Applications for this purpose by people who were admitted subject to a condition prohibiting employment are normally to be refused without reference to the Department of Employment. In cases where no such condition was imposed, if that Department is prepared in the particular case to approve the proposed employment, an appropriate extension of stay may be granted; if not, an extension should be refused."

Held: The appeal would be dismissed because the word 'normally' in para 5 of HC 80 meant 'in the normal way or usually', and the fact that British Rail had vacancies for craftsmen at a diesel maintenance depot did not constitute an abnormal situation which warranted a departure from the terms of para 5. n1 n1 Paragraph 5 of HC 80 provides as follows: --

"In regard to variation of leave to enter with a view to employment, the general position is that where a person wishes to come to work in the United Kingdom the employer must have obtained a work permit before the person sets out; and people admitted as visitors or students or for other temporary purposes have under these rules no claim to stay here in employment. Applications for this purpose by people who were admitted subject to a condition prohibiting employment are normally to be refused without reference to the Department of Employment. In cases where no such condition was imposed, if that Department is prepared in the particular case to approve the proposed employment, an appropriate extension of stay may be granted; if not, an extension should be refused."

Counsel:

K. S. Nathan, counsel for the appellant, appearing on instructions from the Islington Community Law Centre. B. Lockett for the respondent. PANEL: P. N. Dalton Esq (Vice-President), Mrs J. M. Abrahams, G. J. Brown Esq.

Judgment One:

THE TRIBUNAL: The appellant Said Edah Tally, a citizen of Mauritius, arrived at Gatwick Airport on 19 July 1973 holding a 'visitor's' entry certificate issued in Port Louis, and was given leave to enter as a visitor until 14 August 1973 on condition that he did not enter employment, paid or unpaid, and did not engage in any business or profession. On the expiry of his permitted stay the appellant did not leave or apply to the Home Office for an extension but on 19 November 1973 the Depot Manager, British Railways, Tollington Road, London, N7, wrote to the Home Office requesting permission to employ the appellant as a diesel fitter. The application was considered under para 5 of HC 80, and this paragraph provides that people admitted as visitors have under these rules "no claim to stay here in employment" and that "applications for this purpose by people who were admitted subject to a condition prohibiting employment are normally to be refused, without reference to the Department of Employment." n2 The Secretary of State could find no special reason for treating the appellant exceptionally and the application was accordingly refused. n2 The full text of para 5 of HC 80 is set out in footnote 1, ante. The appellant appealed and he and two of his brothers gave evidence before the adjudicator, Mr J. K. Brownlees. In his determination the adjudicator said that, as he understood it, the appeal was based on the argument that the Secretary of State was wrong in not submitting the application for the appellant to take employment with British Railways to the Department of Employment and that by not doing so he went outside the rules and in consequence his refusal of the application was wrong. Mr Brownlees continued: --

"It is not disputed that the appellant was admitted as a visitor with a prohibition on employment, and para 5 of HC 80 provides that the application of a person in this category for leave to take employment is normally refused without reference to the Department of Employment. I can think of nothing more normal than the circumstances in this case, and in my opinion there is nothing whatsoever about it that makes it in any way abnormal. Both the appellant and at least one of his brothers knew of the procedure for seeking permission for employment in this country, and I am fully satisfied that the purported visit was simply a subterfuge to evade or short-circuit it; nor is there anything abnormal in the qualifications of the appellant -- certainly they do not place him in the categories of those not requiring a permit of employment as listed in para 29 of HC 79 -- nor in the fact that a local representative of the would-be employer stated that he had an acute shortage of skilled workers. It is for the appellant to satisfy me that his circumstances were not normal for the purposes of para 5 of HC 80 and this he has failed to do. His proper course, after satisfying his potential employer at his interview, was to leave the United Kingdom and the get that employer to apply for his work permit. The appeal is dismissed."

The adjudicator granted leave to appeal to the Tribunal. The grounds of appeal placed before the Tribunal are: -- "1. That the learned adjudicator erred in construing narrowly para 5 of HC 80. 2. That the application submitted by the British Rail to fill the vacancy of a skilled fitter clearly indicates that the application merited reference to the Department of Employment. This would have given the Department of Employment opportunity to consider and ascertain as to whether or not they were willing to approve the appellant's proposed employment. 3. The learned adjudicator erred on the evidence in coming to the conclusion as he did that the appellant's case was a normal case of a visitor admitted on condition with prohibition of employment applying for permission to take up employment. 4. That the learned adjudicator failed to exercise his statutory powers properly to see whether the respondent's decision under appeal was in accordance with the law and the immigration rules." In the course of his submissions Mr Nathan urged that this matter turned on the meaning of the word "normally". There is, we think, nothing uncertain about what is meant by "normally". In our view it means "in the normal way or usually". The fact that British Rail had vacancies for craftsmen at the Diesel Maintenance Depot did not constitute an abnormal situation which warranted a departure from the terms of para 5 of HC 80. It is clear from the extract of the determination quoted earlier that the adjudicator did not err in construing para 5 of HC 80 or err on the evidence. n3 n3 The full text of para 5 is set out in footnote 1, ante.

DISPOSITION:

Appeal dismissed.

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