Munasinghe v. Secretary of State for the Home Department

MUNASINGHE v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/1046/74(349)

Immigration Appeal Tribunal

[1975] Imm AR 79

Hearing Date: 2 October 1974

2 October 1974

Index Terms:

Employment -- Immigration rule -- Provision for consulation by Home Office with Department of Employment -- No responsibility assigned to Department of Employment in Immigration Act 1971 -- Whether Secretary of State precluded from making rule (under s 2(3) of the 1971 Act) providing for consultation with that Department before exercising his powers under s 4(1) of the Act -- Whether para 5 of HC 80 ultra vires -- Immigration Act 1971, ss 3(2), 4(1) -- HC 80, para 5.

Working holiday -- Employment full-time over long period -- Student of catering entering bakery employment -- Work not properly described as 'incidental to a holiday' -- Whether extension of stay as a working holidaymaker proper -- HC 80, para 11.

Held:

The appellant citizen of Sri Lanka (born in 1939) was admitted to the United Kingdom in September 1971 as a student for 12 months, and no condition was attached to her stay prohibiting her from taking employment. After completing a catering course in the bakery section of a polytechnic college she applied for an extension of stay, stating (October 1972) that she was undergoing training in the bakery department of a large store; the store confirmed the appellant's employment by them as a bakery decorator earning @ 20 per week. On a reference by the Home Office to the Department of Employment, that Department reported that it was unable to approve the employment, and in August 1973 the Secretary of State refused the appellant's application, acting under para 5 of the immigration rules HC 80. n1 n1 Paragraph 5 of HC 80 provides that

"... 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."

From the dismissal of her appeal to an adjudicator the appellant appealed to the Tribunal, and it was submitted on her behalf that para 5 of HC 80 n1 was ultra vires the Immigration Act 1971, because the Act did not assign any responsibility to the Department of Employment; it was further submitted that the appellant qualified for an extension under para 11 of HC 80 as a Commonwealth citizen here on a working holiday. n2 n1 Paragraph 5 of HC 80 provides that

"... 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."

n2 Paragraph 11 of HC 80 is set out on p 82, post. Held: (i) Paragraph 5 of HC 80 was not ultra vires the Immigration Act 1971, because (a) the fact that the Act did not assign any responsibility to the Department of Employment did not preclude the Secretary of State from acting under s 3(2) of the Act n3 to provide in the Immigration Rules laid before Parliament for consulation with that Department before exercising his powers under s 4(1) of the Act n4 in a matter relating to employment; (b) it seemed entirely appropriate for such a matter to be referred to the Department of Employment; and (c) para 5 of HC 80, the relevant rule, did not transfer or purport to transfer to the Department of Employment the power to give leave to remain, or to vary any leave to remain, in the United Kingdom. n3 Section 3(2) of the 1971 Act provides inter alia that

"the Secretary of State shall from time to time... lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances;..."

n4 Under s 4(1) of the 1971 Act "the power to give leave to remain in the United Kingdom, or to vary any leave under s 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State". (ii) the appellant had not brought herself within the rule applicable to Commonwealth citizens who have come to this country on working holidays -- para 11 of HC 80; on the evidence it was plain that she had been a hard-working full-time member of the staff of a departmental store, and her work could not properly be described as employment which was "only incidental to a holiday".

Counsel:

K. S. Nathan, counsel for the appellant. R. W. B. Hurley for the respondent. PANEL: P. N. Dalton Esq (Vice-President) Miss M. F. Hardie, J. A. Noble Esq.

Judgment One:

THE TRIBUNAL: The appellant Champa Kanthi Munasinghe is a citizen of Sri Lanka. She was born in 1939. She arrived in the United Kingdom on 12 September 1971 and was admitted as a student for a period of 12 months without any condition being attached to her stay prohibiting her from taking employment. After her arrival Miss Munasinghe followed a catering course in the bakery section at the Polytechnic of the South Bank, and on 14 October 1972 she wrote to the Home Office stating that she was undergoing training in the bakery department of Selfridges. In November Selfridges confirmed that the appellant was employed there as a bakery decorator earning @ 20 per week. The matter was referred to the Department of Employment in January 1973 and that Department informed the Home Office that they were unable to approve this employment. The Secretary of State noted that the Department of Employment was unable to approve the appellant's proposed employment and he did not therefore consider that the appellant qualified for an extension of stay under para 5 of HC 80. The appellant's application was refused on 30 August 1973 but she was granted a short extension of stay to allow her to make arrangements to leave the country. The appellant appealed to an adjudicator, and as a hearing of the appeal had not been requested the adjudicator, Mr W. J. Coley, gave his determination pursuant to the provisions of r 12 of the Immigration Appeals (Procedure) Rules 1972. The adjudicator, having found that the decision of the respondent was in accordance with the law and the immigration rules applicable, dismissed the appeal. The appellant applied for leave to appeal to the Tribunal on the following grounds: -- "1. That the Immigration Act 1971 does not define any responsibility to the Department of Employment in relation to an application for variation of conditions of entry. 2. That under s 3(2) of the Immigration Act 1971 the Secretary of State's power regarding laying of Rules before Parliament is restricted to practice n5 and therefore para 5 of HC 80 requiring the Home Office to refer applications to the Department of Employment is ultra vires the enabling Act referred to above. n5 The relevant provision in s 3(2) of the 1971 Act is set out in footnote 3, ante. 3. That the determination of the appellant's appeal will turn upon the interpretation of para 5 of HC 80." n6 n6 The relevant provision in para 5 of HC 80 is set out in footnote 1, ante. Leave to appeal was granted. We take it that in the first ground of appeal "assign any responsibility" is meant where "define any responsibility" is used and if that is so we agree that what is stated in this ground is true. But such fact does not, of course, preclude the Secretary of State from providing in the Rules he lays before Parliament, for consultation with another Department before exercising his powers under s 4(1) of the Immigration Act 1971 and it seems entirely appropriate for matters relating to employment to be referred to the Department of Employment. Paragraph 5 of HC 80, which is the relevant rule n6, does not transfer or purport to transfer to the Department of Employment the power to give leave to remain in the United Kingdom or vary any leave to remain. Accordingly para 5 of HC 80 is not ultra vires the 1971 Act. n6 The relevant provision in para 5 of HC 80 is set out in footnote 1, ante. Mr Nathan went on to refer to para 11 of HC 80, which refers to young Commonwealth citizens who have come to the United Kingdom on working holidays, and he submitted that the appellant qualified to remain here under this rule. The rule reads as follows: --

"Young Commonwealth citizens who have come to the United Kingdom on working holidays will normally have been admitted for 12 months in the first instance and may, on application, be granted and extension of stay. Having been admitted, however, for employment which is only incidental to a holiday, they should not be allowed to remain indefinitely, and a total of five years is the maximum period permitted."

We are satisfied that the appellant does not come within this rule. In a letter dated 2 April 1974 from her employers, Selfridges, an assistant staff manager states: -- "The young lady, who came to us as a student confectionist on her arrival in the U.K. has been working in our bakery. Since then she has enlarged the scope of her activities and now works as a pastry cook and also does bread baking from time to time. As these jobs are allied to catering we believe that you may see your way to granting her request. On our part we find it difficult to find staff as willing and hard working as she is, and it will be a great loss to our bakery if we have to lose her." In her letter dated 11.9.73 to the Under Secretary of State Miss Munasinghe said that she had not had much opportunity to visit the interesting and beautiful places in this country. It is plain beyond a doubt that the appellant has been a hard-working full-time member of the staff at Selfridges and by no stretch of the imagination can her work there be properly described as employment which is only incidental to a holiday. For these reasons the appeal is dismissed.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Suriya & Co.

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