Lim Chow Tom v. Secretary of State for the Home Department
- Author: Immigration Appeal Tribunal
- Document source:
-
Date:
19 December 1974
LIM CHOW TOM v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/2583/74(393)
Immigration Appeal Tribunal
[1975] Imm AR 137
Hearing Date: 19 December 1974
19 December 1974
Index Terms:
Employment -- Visitor from Commonwealth admitted on a condition prohibiting employment -- Application to work in supermarket -- Employer initiating application by request to Department of Employment -- Reference to that Department by Home Office -- Employment not approved by Department of Employment -- Extent of Home Office discretion under relevant immigration rule -- Lavender's Case ([1970] 3 All. E.R. 871) distinguished -- HC 80, para 5.
Held:
The appellant citizen of Mauritius had been admitted to the United Kingdom as a visitor for one month. A condition of his admission prohibited him from taking employment. He was granted a number of short extensions as a student of English. During one of these student extensions solicitors acting for a Chinese-owned supermarket applied unsuccessfully to the Department of Employment for permission to employ the appellant in that supermarket. On the appellant's own similar application to the respondent, the latter, after obtaining from the solicitors further information about the employment, referred the application to the Department of Employment. That Department reported that it was unable to approve the employment, and the respondent acting under para 5 of HC 80 refused the application. n1 n1 Paragraph 5 of HC 80 is set out on p 141, post. The adjudicator to whom the appellant appealed against that decision dismissed the appeal feeling himself bound by the decisions of the Tribunal in the trainee cases of Latiff ([1972] Imm A R 76) and Brizmohun ([1972] Imm A R 122). On further appeal to the Tribunal it was submitted for the appellant that decisions on applications to vary conditions of entry were matters for the respondent, whose decision could not be delegated to another Government Department; and further, that on a true construction of para 5 of HC 801 n1 the 'general position' as to the issue of work permits, referred to in the first sentence, indicated that the words in the second sentence 'normally to be refused' did not deprive the respondent of his discretion to grant an extension for employment whatever the Department of Employment's opinion might be. n1 Paragraph 5 of HC 80 is set out on p 141, post. Held (dismissing the appeal): -- (i) Under the Immigration Rules the respondent was required in certain cases to refer applications to the Department of Employment; the present case was therefore distinguishable from the case of H. Lavender & Son Ltd v The Minister of Housing & Local Government, n2 as in that case the respondent Minister had improperly delegated to the Minister of another Government Department his duties in relation to an application before him for planning permission; n2 [1970] 3 All E.R. 871. (ii) although para 5 of HC 80 n3 provided that an application to enter employment made by a person who was (like the appellant) admitted as a visitor precluded from taking employment should 'normally be refused without reference to the Department of Employment', it was reasonable for the respondent to ascertain whether that Department approved the present application, since the appellant's representatives had initially applied on his behalf to the Department of Employment. n3 Paragraph 5 of HC 80 is set out on p 141, post. Per curiam: Under the present Immigration Rules (HC80), as under the earlier Rules Cmnd 4295, if the Department of Employment -- against whose decision there was no appeal -- was not prepared to approve the proposed employment, the Secretary of State for the Home Department had no discretion in the matter.Counsel:
E. Cohen, counsel for the appellant. R. W. B. H/urley for the respondent. PANEL: Sir Derek Hilton (President), B. J. S. Edmond Esq, A. S. W. Newman Esq.Judgment One:
THE TRIBUNAL: The appeal was against the determination of an adjudicator (Mr. T. D. Healy) dismissing the appellant's appeal against the refusal to vary his leave to enter to enable him to take employment. The appellant, Mr Lim Chow Tom, a citizen of Mauritius born on 27 April 1949, was admitted to this country on 10 March 1972 until 12 April 1972 to enable him to visit his brother-in-law subject to a condition prohibiting employment. Subsequent events are recorded in the Home Office statement as follows: -- "2. Three days later on 13 March 1972 Mr Lim requested an extension of stay to allow him to study English at St Patrick's College, 24 Great Chapel Street, London, W1. An extension was granted until 31 July 1972 after evidence was seen that he had enrolled for a course of study at the college until 7 July 1972. He stated that his parents were paying for his support and that he would return to Mauritius after his studies. Further extensions of stay were granted until 19 January 1973 after Mr Lim had produced evidence that he was continuing to study at St Patrick's College. He also produced evidence of sufficient funds held at Barclays Bank, Streatham High Road. 3. On 3 January Steggles & Palmer, Solicitors of Laindon, Essex, on behalf of Jeffer Chan, owner of Chung Ying Chinese Supermarket at 63 Cambridge Street, Glasgow, wrote to the Department of Employment requesting permission to employ Mr Lim in the supermarket, and stated that during his employment Mr Lim would attend a day release course at the Central College of Commerce & Distribution. 4. On 12 January 1973, whilst this application was in the hands of the Department of Employment, Mr Lim was granted an extension of stay until 31 July 1973 after he had produced evidence of enrolment at St Patrick's College until 15 July 1973. 5. The Home Office wrote to Steggles & Palmer for further information on Mr Lim's proposed employment. The reply explained that Mr Lim would assist the manager of the supermarket in office work, administration and sales and that he would be under the direction and supervision of the manager at all times. The salary he would receive would be @ 14 a week in addition to his board and lodging. 6. The application was referred to the Department of Employment, who reported that it was unable to approve the proposed employment." As the proposed employment was not approved by the Department of Employment the application was refused on 18 October 1973, and the appellant appealed. The adjudicator dismissed the appeal. After recording the facts he concluded his determination as follows: -- "Mr Cohen fully appreciated that I was bound by Tribunal decisions such as Latiff's Case ([1972] Imm A R 76), Brizmohun's Case ([1972] Imm A R 122) and others, n4 to dismiss this appeal. He accepted that there was no point in calling evidence or making submissions which I had to disregard irrespective of merit. He asked me to decide the appeal on the law as I saw it and to afford him the opportunity of addressing his arguments to the Tribunal, who are not of course bound by their own previous decisions. n4 See, for example, Ainooson's Case, [1973] Imm A R 43. This appeal is dismissed because the respondent's decision was in accordance with the law and the immigration rules as laid down in Latiff's and Brizmohun's cases and which I am bound to follow. Leave to appeal was granted to the appellant." The appellant's grounds of appeal are: -- "1. That the Department of Employment acted according to wrong principles and/or failed to pay any or any sufficient consideration to matters which they should have taken into account in refusing to approve the proposed employment of the appellant; and that accordingly the Department of Employment erred in failing to approve the said employment. 2. That the respondent erred in delegating his discretion to the Department of Employment and in failing to consider the merits of the appellant's application to vary his leave to enter. 3. That previous decisions of the Tribunal holding that a decision of the Department of Employment cannot be questioned by the respondent, an adjudicator or the Tribunal and that the discretion of the respondent, adjudicator or Tribunal is thereby excluded are wrong in law. 4. That in any event para 5 of the Immigration Rules HC 80 did not exclude the discretion of the respondent and the learned adjudicator erred in failing to exercise their discretion. 5. That accordingly the respondent and the learned adjudicator erred in failing to consider the appellant's application to vary his leave to enter on its merits and should have granted such application. In addressing us Mr Cohen said that the facts set out in the Home Office statement were not in dispute. He pointed out that the appellant had had considerable experience in the proposed type of work and he had obtained a reference from a supermarket in Mauritius, where he had been employed for 6 years, to assist him in getting work here. Mr Cohen produced correspondence between his instructing solicitors and the Department of Employment as to the reasons why the Department had been unable to approve the proposed employment of the appellant, and he said that the starting salary would be increased later. Mr Cohen accepted that the Tribunal had no jurisdiction over decisions of the Department of Employment and he was not pursuing the first ground of appeal. He submitted on the second ground that decisions on applications to vary leave to enter were matters for the respondent, and that on the principle established in H. Lavender & Son Ltd v The Minister of Housing & Local Government ([1970] 3 All E.R. 871) the respondent could not delegate his decision to another Government Department. Mr Cohen further submitted that the previous Tribunal decisions in the cases of Latiff n5 and Brizmohun n6 were wrong or, if the Tribunal did not accept his submission, that the present case was different and should be distinguished. n5 [1972] Imm AR 76; TH/391/70. n6 [1972] Imm A R 122; TH/1049/71. On the construction of para 5 of HC 80 Mr Cohen (dealing with the fourth ground of appeal) submitted that the 'general position' as to issue of work permits referred to in the first sentence prefaced the rest of the paragraph; the words 'normally to be refused' in the second sentence did not deprive the respondent of his discretion whatever the Department of Employment might say. In reply Mr Hurley accepted that there was discretion under para 5 of HC 80, but submitted that if a case was referred to the Department of Employment that Department had to advise the Home Office whether or not the proposed employment was approved. If it was not approved the respondent had no discretion and must refuse the application. He further submitted that the Tribunal must accept decisions of the Department of Employment and that the adjudicator had been correct in following previous Tribunal decisions and had properly dismissed the appeal. The appellant, who was admitted as a visitor subject to a condition prohibiting employment, was refused an application to remain in this country in order to take employment because the Department of Employment on a reference by the respondent was not prepared to approve the proposed employment. The relevant immigration rule is contained in para 5 of HC 80, which reads: -- 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." It was argued before us that the respondent erred in delegating his discretion to the Department of Employment and in failing to consider the merits of the appellant's application. We were referred to the Lavender Case, n7 in which it was held that the Minister of Housing & Local Government had improperly delegated his duties in relation to an application for planning permission before him to the Minister of Agriculture, Fisheries & Food. We consider that the case of Lavender n7 can be distinguished from the present case because in immigration matters the respondent is required in certain cases to refer applications to the Department of Employment. n7 H. Lavender & Son Ltd v The Minister of Housing & Local Government' [1970] 3 All E.R. 871. The relevant immigration rule provides that an application by a person in the position of the appellant (who was a visitor precluded from taking employment) should normally be refused without reference to the Department of Employment. We note, however, that the appellant's representatives themselves initially applied on his behalf to the Department of Employment and in consequence, in our view it would have been strange, to say the least, were the respondent to have come to a decision without reference to that Department to ascertain whether or not it approved the appellant's application. We have considered previous Tribunal decisions which were determined under the previous immigration rules and we agree that if the Department of Employment (against whose decision there is no appeal within the Immigration Rules) is not prepared to approve the proposed employment the respondent has no discretion in the matter. In our view the decision was in accordance with the law and the immigration rules applicable and discretion should not have been exercised differently. For these reasons we dismiss the appeal.DISPOSITION:
Appeal dismissed.SOLICITORS:
Steggles, Palmer.Disclaimer: Crown Copyright
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