Islam v. Secretary of State for the Home Department

ISLAM v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/1083/73(376)

Immigration Appeal Tribunal

[1975] Imm AR 106

Hearing Date: 26 November 1974

26 November 1974

Index Terms:

Deportation -- 'Five-year rule' -- Commonwealth citizen -- Notice of intention to make deportation order -- Service of notice at same time as application for extension was refused in belief that applicant would not leave U.K. on completion of proposed short training -- Five years' residence at completion of training would preclude enforcement of departure -- Immigration Act 1971, s 7(1)(b) -- HC 80, paras 15, 16.

Deportation -- Remaining in the United Kingdom 'without authorisation' -- Fresh application for extension of stay 3 days after abandonment of an appeal and its dismissal under the 1970 Immigration Appeals (Procedure) Rules -- Whether authority to prolong stay given by letter in general terms acknowledging receipt of application -- Whether decision to make deportation order for such remaining 'without authorisation' properly made at time of refusing application -- Immigration Act 1971, s 3(5)(a).

Practice and procedure -- Authorisation to remain in United Kingdom -- Application for extension of stay after dismissal of appeal against refusal of previous application -- Whether standard letter acknowledging fresh application provided authority for continued stay during consideration of application.

Trainee -- Training on the job -- Application by former student for practical training on the job -- Facts suggesting that on completion of short training he would not leave U.K. but seek to transfer to ordinary employment -- Application refused -- HC 80, paras 15, 16.

Held:

The appellant, while a citizen of Pakistan (later Bangladesh), was admitted to the United Kingdom on 22.8.68 for 12 months as a student at an aeronautical college, and he duly received extensions to continue his college course. On 22.9.71 he requested permission to remain in this country permanently. By reason of the war situation in East Pakistan he was exceptionally permitted to take employment for which an employment voucher would normally be required. When the conflict was resolved his application to remain in that employment was refused (25.9.72), and his appeal against that refusal was on its abandonment dismissed by an adjudicator under r 33(c) of the 1970 Immigration Appeals (Procedure) Rules on 23.7.73. Three days later (26.7.73) the appellant made a fresh application to the Home Office, on this occasion for an extension to enable him to continue a practical training course which he was commenced earlier in 1973 with a firm of aviation specialists and which was scheduled to end on 16.11.73. The application was formally acknowedged by letter, and three weeks later (16.8.73) it was refused because the respondent was not satisfied that the appellant would leave the country on completion of the training course. And, taking into consideration (a) that on completion of the course the appellant would have been in the United Kingdom for more than 5 years, and (b) that because of the provisions of s 7(1)(b) of the Immigration Act 1971 n1 there would then be no power to enforce his departure should he refuse to leave voluntarily, the respondent -- after also taking into account the history of the case and other relevant circumstances -- decided that a notice of intention to deport the appellant should forthwith be served on him on the ground that following the abandonment of his appeal on 23.7.73 he had remained in the United Kingdom 'without authorisation'. n1 Section 7 of the Immigration Act 1971 provides, so far as here relevant, as follows: -- "7. (1)... a Commonwealth citizen... who was such a citizen at the coming into force of this Act and was then ordinarily resident in the United Kingdom --... (b) shall not be liable to deportation under s 3(5)(a), (b) or (c) if at the time of the Secretary of State's decision he had for the last five years been ordinarily resident in the United Kingdom and Islands.... (2) A person who has at any time become ordinarily resident in the United Kingdom or in any of the Islands shall not be treated for the purposes of this section as having ceased to be so by reason only of his having remained there in breach of the immigration laws...." The adjudicator to whom the appellant appealed found the refusal to vary the appellant's conditions justified and the decision on deportation to be in accordance with the law and the rules applicable. From the dismissal of the appeal against the decision to make a deportation order the appellant appealed to the Tribunal, and it was submitted on his behalf that while his application, formally acknowledged by letter, was being considered by the Home Office the appellant could not be said to be in this country without authorisation; Enorzah's Case ([1975] Imm. A.R. p. 10, ante) was cited in support of this submission. Held (formally approving the refusal of an extension as a trainee, and dismissing the appeal against the decision to make a deportation order): the fact that a person had made an application to the Home Office did not mean that while it was being considered the applicant was to be regarded as having authority to remain here; Enorzah's Case (reported at p 10, ante) was distinguishable because in his case a letter acknowledging receipt of his application contained words giving specific authority to remain in this country pending a decision on his application; no such written authority was given to the present appellant.

Counsel:

John Constable of the Joint Council for the Welfare of Immigrants, for the appellant. R. W. B. Hurley for the respondent. PANEL: P. N. Dalton Esq (Vice-President), Mrs J. D. Caine, Sir Stanley Tomlinson.

Judgment One:

THE TRIBUNAL: The appellant in this appeal is Muhammad Waziul Islam, a citizen of Bangladesh. He was admitted to the United Kingdom on 22 August 1968 for 12 months for the purpose of studies at the College of Aeronautical and Automobile Engineering. Mr Islam held a 'student' entry certificate issued at Dacca on 8 August 1968. Later he received further extensions of stay to enable him to continue his course. On 22 September 1971 Mr Islam called at the Home Office and requested that he be allowed to take up permanent residence in the United Kingdom. He was interviewed and advised that his application for permission to stay on in the United Kingdom pending a settlement of the conflict in East Pakistan would be carefully considered and that in the meantime he should inform the Home Office as soon as he received a specific offer of employment. In January, March and July of the following year the Home Office enquired of the appellant if he had obtained employment suitable to his qualifications and to each of the enquiries he replied, the last time being on 3 August 1972, that he had been unable to do so and was still employed as a salesman by Selfridges. The appellant had exceptionally, because of the situation in East Pakistan, been allowed to remain in the United Kingdom oncompletion of his studies, and had for 10 months been in a job for which a voucher was required. As the situation in East Pakistan had now been resolved, the Secretary of State considered that the time had come to apply to Mr Islam the terms of para 16 of Cmnd 4295, which states that "it is not permissible for a student to stay here in employment when his studies are over". The application was accordingly refused on 25 September 1972. The appellant appealed to an adjudicator but, for reasons which are set out in the determination of Miss Phillips, abandoned his appeal and it was accordingly dismissed under r 33(c) of the Immigration Appeals (Procedure) Rules 1970, on 23 July 1973. On 26 July 1973 Mr Salandy of the UKIAS wrote to the Home Office on the appellant's behalf asking that he be granted an extension of stay here to enable him to continue his training. A letter from W.A. Webb and Co., Aviation Specialists of Biggin Hill Airport, dated 19 July 1973 was enclosed and in the letter it was stated that Mr Islam was at present taking an A & C Licence course under their supervision on light aircraft. The appellant had commenced the course on 5 February 1973 and it was scheduled to last until 16 November 1973. This application was carefully considered in the light of the appellant's past history and the conclusion was reached that, whether or not the training that the appellant was undergoing with Messrs W.A. Webb and Co. would in other circumstances have qualified him to remain in the United Kingdom under para 16 of HC 80, n2 there could be no confidence that the appellant would, when he had completed that training leave the United Kingdom and not seek to transfer to other employment. n3 In these circumstances the application was refused. n2 Paragraph 16 of HC 80 reads as follows: --

"Visitors and students may be granted extensions of stay as trainees if the Department of Employment consider the offer of training to be satisfactory: otherwise an extension should be refused."

n3 Under para 15 of HC 80 "transfers to ordinary employment will not be allowed" to trainees on completion of their training. At the same time the Secretary of State thought it right to review the whole history of the appellant's stay in the United Kingdom and his current position under the immigration rules generally. The Home Office statement recapitulates the facts and then makes the point that by the time the appellant's training was completed in November 1973 the appellant would have been in the United Kingdom for more than five vears and there would then, because of the provisions of s 7(1)(b) of the Immigration Act 1971 n4, be no power to enforce his departure should he refuse to depart voluntarily. Accordingly, mindful of the need to maintain immigration control, and taking into account the whole history of his case and all other relevant circumstances, the Secretary of State decided that the proper course was to arrange for the immediate service on the appellant of a notice of intention to deport him. Accordingly on 16 August 1973 an officer of the Metropolitan Police served upon the appellant a notice of refusal to vary his leave to enter, together with a notice of the Secretary of State's intention to make a deportation order by virute of 3(5)(a) of the Immigration Act 1971 and to give directions for his removal to Bangladesh. n4 Section 7(1)(b) & (2) of the 1971 Act is set out in footnote 1, ante. The appellant appealed to an adjudicator against the two decisions which are set out in Mr McCall's determination (dated 9.7.74) as follows: -- "W.A. Webb and Co. have applied on your behalf for you to be allowed to remain in the United Kingdom to undertake a course of training with them, but having regard to all the relevant facts, the Secretary of State is not satisfied that you will leave the United Kingdom at the completion of the training course. You were admitted to this country as a student for 12 months and your leave to enter, as subsequently varied, a permitted you to remain here until 7 November 1972. The Secretary of State is satisfied that following the abandonment on 23 July of your appeal to an adjudicator, you have remained in the United Kingdom without authorisation." The appellant gave evidence before the adjudicator, who said in his determination that he had reached the conclusion on the evidence that the refusal to vary the appellant's conditions was justified. The adjudicator also found for the reasons he gave that the decision to deport the appellant was in accordance with the law and the rules applicable. The appellant's appeal was dismissed. An application for leave to appeal to the Tribunal was made on the following three grounds by Mr J. Constable: -- "The decision made by the adjudicator in respect of the Home Office's decision to make a deportation order in regard to the appellant was not in accordance with the law and the rules. The Home Office have stated in their grounds that since the dismissal of the appellant's appeal on 23 July 1973 he has remained in the country without authorisation. Since a further application to enable him to remain here was made on 26 July 1973 it cannot be said that while the Home Office were looking at that application he remained here without authority. It was standard practice at that time to send to a person who had forwarded his passport to the Home Office a letter stating that that document gave him permission to remain until the issue of the application to the Home Office had been determined. In dealing with this point the adjudicator refers to Part 2 of Schedule 2 to the 1971 Immigration Act which as far as I can see appears to be irrelevant to the point that I was making. "Further in making representations to the adjudicator I commented that it was my opinion that the requirements in the particular circumstances of this case were not met within para 42 of HC 80. This does not appear to have been dealt with in the determination at all.

"In addition none of the Home Office reasons for making the order appear to be based on fact (see paras 5 and 7 of the statement) but rather on speculation which has little basis in reality."

The application for leave to appeal was granted. In opening the appeal Mr Constable said that he only intended to argue the first ground of appeal. He submitted that when the application was made on 26 July 1973 for an extension of the appellant's stay the Home Office could either have considered the application and made a decision or refused to consider the application, returned the papers and told the appellant he was overstaying and must leave. The Home Office considered the application, and Mr Constable submitted that whilst an application is being considered an applicant cannot be held to be here without authorisation. Reference was made to a letter dated 4 March 1974 from the Home Office to Mrs M. Dines, the General Secretary of the Joint Council for the Welfare of Immigrants. This letter relates to the giving of authority in stock acknowledgments to an applicant to remain in this country pending a decision in his case. Mention is made in the letter to the sending of an acknowledgment indiscriminately, n5 and Mr Constable argued that an acknowledgment had been sent to the appellant. Mr Hurley denied that the appellant had ever been told that he could remain here after his appeal had been withdrawn. No letter to such effect had been sent to him since such letters were only sent to persons who forwarded their passports. Mr Hurley referred to the case of Enorzah n6. In that case Mr. Enorzah had applied for an extension of stay as a student. The application was acknowledged by the Home Office and the final paragraph of the letter stated: -- n5 The letter of 4 March 1974 was in the following terms: -- "Thank you for your letter of 1 March... about the omission from stock acknowledgments of the paragraph giving specific authority for the holder to remain in the United Kingdom pending a decision on his case. There is no basic change of policy involved. The practice of including this assurance was adopted many years ago in relation to aliens because it was thought that they might need some means of satisfying a police officer who wanted to see evidence of their entitlement to be here; but it seems fair to assume that a simple acknowledgment of the passport would provide a reasonable safeguard, and that the police could check with the Department in any case of doubt. The difficulty about the continued use of this paragraph is that the acknowledgment has to be sent indiscriminately without reference to the Home Office papers relating to the applicant, and there has been serious embarrassment about its use in respect of persons who have remained here long after their permitted stay has expired, and who may be under notice of intention to deport. There is certainly no reason for any genuine applicant to feel concerned because this specific assurance will henceforward be omitted." n6 [1975] Imm A R 10, TH/3884/73(267).

"Meanwhile this acknowledgment may be regarded as authority for the holder to remain in the United Kingdom pending a decision on any application made for an extension of stay."

It was because of this authorisation that the appeal in the case of Enorzah was allowed. In this case no letter containing such authorisation has been produced and in fact the appellant in his evidence before the adjudicator never claimed that he had received such a letter. We do not agree with the submission that the fact that a person has made an application to the Home Office means that while the application is being considered such person is to be regarded as having authority to remain here. We are satisfied that the Secretary of State properly refused the appellant's application for an extension of stay and also that he was justified on the facts in deciding to deport the appellant.

DISPOSITION:

Appeal dismissed.