Sudhakaran v. Entry Clearance Officer, Madras

SUDHAKARAN v THE ENTRY CLEARANCE OFFICER, MADRAS, TH/989/74(447)

Immigration Appeal Tribunal

[1976] Imm AR 3

Hearing Date: 28 February 1975

28 February 1975

Index Terms:

Medical grounds for refusing admission -- Medical referee's report to entry clearance officer -- Abnormal heart condition found in applicant otherwise eligible for entry -- Recommendation against admission on ground that 'in view of heart disease' applicant was 'medically unfit' -- Omission to advise (if so found) that "for medical reasons it is undesirable to admit" the applicant -- Strict compliance with the letter of the immigration rule requisite -- HC 79, para 59.

Held:

The appellant, a citizen of India, was professionally qualified to enter the United Kingdom for employment under the National Health Service. On his applying for entry clearance he was referred by the entry clearance officer for examination by a medical inspector under para 59 of HC 79. Paragraph 59 of those immigration rules provides, inter alia, that:

"Where the Medical Inspector advises that for medical reasons it is undesirable to admit the passenger the Immigration Officer should refuse leave to enter unless he considers admission warranted by strong compassionate reasons."

The medical inspector's report noted a certain abnormality of the heart, and the official medical referee's recommendation was in the following terms:

"In view of the heart disease, candidate is medically unfit. Entry not recommended."

The ECO refused the appellant's application on medical grounds. On appeal to an adjudicator, expert medical evidence was adduced which suggested that the appellant was able to lead a normal active life. The adjudicator considered himself bound under para 59 of HC 79 to follow the medical referee's recommendation, and he dismissed the appeal. On further appeal to the Tribunal, Held: the appeal would be allowed, because the power conferred on the medical inspector by para 59 of HC 79 to deprive a person of his power or qualification to enter this country must be confined to the strict letter of the immigration rule, and the Tribunal were of the opinion that to say that 'in view of heart disease a person is medically unfit' did not measure up to the requirement of para 59 that "for medical reasons it is undesirable to admit" the applicant. General proposition approved by VISCOUNT SIMONDS in East Riding County Council v Park Estate (Bridlington) Ltd ([1957] AC 223 at p 233; [1956] 2 All ER 669 at p 672), applied. MAXWELL on Interpretation of Statutes (12th Edn at pp 258, 259) referred to.

Counsel:

K. H. Drabu of the United Kingdom Immigrants Advisory Service, for the appellant. R. W. B. Hurley for the respondent.

PANEL:

P. N. Dalton Esq (Vice-President), Dr L. P. De Souza, Sir Gordon Whitteridge.

Judgment One:

THE TRIBUNAL: The appellant in this appeal is Dr Pullat Sudhakaran, a citizen of India. He applied in Madras on 28 August 1973 for an entry certificate to enable him to go to the United Kingdom for employment under the National Health Service as a doctor for 3 years. Among the documents that he produced was an acceptance letter from the South-East Metropolitan Regional Hospital Board for the appellant to go initially for a period of clinical attachment. Arrangements were made by the entry clearance officer for the appellant to have a medical examination and as a result of the examination the following abnormality was noted "systolic murmur loudest in the mitral area. Enlargement of the heart made out". In the space for official use at the bottom of the medical examination form the recommendation of the Medical Referee is stated as follows:

"Case reviewed with Dr Hamilton. In view of the heart disease, candidate is medically unfit. Entry not recommended."

Then follows the signature of Dr B. Krishna Rau. The entry certificate officer refused the appellant on medical grounds under para 59 of HC 79. Dr Sudhakaran appealed against the refusal on the following grounds: "1. A congenital heart defect is not an infectious disease. 2. I have been leading a normal active life throughout, both physically and mentally, and I have had no symptoms whatsoever referrable to the Cardio Vascular System. 3. A qualified Cardiologist, Dr George Jacob, MRCP, has examined me and certified that I have a well compensated heart and that I should lead a normal life. 4. I am already in the State Service (Kerala State) working in the Department of Pathology, Medical College, Kottayam, and I am discharging my duties efficiently. The State Government have granted me leave for 3 years for acquiring higher qualifications in Pathology and have also issued a "No objection certificate" in the matter of my proceeding to the United Kingdom. 5. My intention is to stay in the United Kingdom for a period of 3 years only (leave period) with a view to acquire training and higher qualification in Pathology. 6. The Government or the people of the United Kingdom need not take up any liability on my account except payment of remuneration for the service I render and I agree to be repatriated to India after 3 years unconditionally." At the hearing of the appeal before the adjudicator, Mr M Patey, two doctors gave evidence. The first, a pathologist, said that he had worked for nine months in 1970 with the appellant and that he was not aware that the appellant, who lived a normal energetic and active life, suffered from any complaint until this appeal was lodged. The second witness, who had read the medical reports on which the medical referee had based his recommendation, said that the appellant would not have any difficulty in leading a normal active life. In his determination the adjudicator referred to the relevant rule, that is para 59 of HC 79 which reads:

"Where the Medical Inspector advises that for medical reasons it is undesirable to admit the passenger the Immigration Officer should refuse leave to enter unless he considers admission warranted by strong compassionate reasons. He may also refuse leave to enter where the passenger declines to submit to a medical examination. And where the Medical Inspector advises that a passenger is suffering from a specified disease or condition which may interfere with his ability to support himself or his dependants, the Immigration Officer should take account of this, in conjunction with other factors, in deciding whether to admit the passenger."

The adjudicator said that this paragraph was divided into three parts and he agreed with the appellant's representative, Mr Drabu, that there was an important distinction between the provisions of the first and third sentences of para 59. The adjudicator then said:

"Be that as it may, in this particular case the Medical Referee has made a categoric recommendation that the appellant be refused admission on medical grounds. It is not within my jurisdiction or, indeed, competence to decide whether this recommendation was correct in the light of the medical evidence nor, moreover, and I entitled under the rules to consider whether, in the circumstances, the Medical Referee should have merely reported the appellant's condition without making any recommendation as to admissibility, thus affording the entry certificate officer a discretion. The fact is the Medical Referee did make this recommendation after considering all the evidence before him and I have therefore no option under the rules but to dismiss the appeal."

The appellant applied to the Tribunal for leave to appeal on the following grounds: "1. That the learned adjudicator erred in the interpretation of para 59 of HC 79. 2. That the learned adjudicator erred in law in so far as he ruled that the immigration officer or entry clearance officer had no discretion in considering a recommendation of the Medical Inspector under para 59 of HC 79." Leave to appeal was granted. After considering the arguments put before us by the parties' representatives we allowed the appeal. It is clear from the wording of the first sentence of para 59 that when a Medical Inspector "advises that for medical reasons it is undesirable to admit the passenger" the immigration officer has no discretion, as he has under the remainder of the paragraph, but has to refuse leave to enter unless there are "strong compassionate reasons". A passenger can appeal on the ground that there are strong compassionate circumstances but he cannot appeal on the ground that the Medical Inspector's advice was not warranted on the medical evidence. The Medical Inspector, therefore, in a case such as this has the power to deprive a person of his power or qualification to enter this country, and it is apparent from MAXWELL on Interpretation of Statutes that when a statute confers a power, the courts will confine those exercising the power to the strict letter of the statute. n1 So, in discussing the Town and Country Planning Act 1947 VISCOUNT SIMONDS approved the general proposition n2 that: n1 12th Edition, at pp 258, 259. n2 East Riding County Council v Park Estate (Bridlington) Ltd, [1957] AC 223 at p 233; [1956] 2 All ER 669 at p 672. "it was highly technical and, as it encroached on private rights, the court must insist on strict and rigid adherence to formalities." Paragraph 59 of HC 79 refers to advice that for medical reasons it is undesirable to admit the passenger, and we do not think that to say that "in view of heart disease" a person is "medically unfit", measures up to the requirement of the rule that "for medical reasons it is undesirable to admit the passenger". It is on this narrow ground that the appeal is allowed.

DISPOSITION:

Appeal allowed.

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