Immigration Officer, Bristol v. Diestel and Another

THE IMMIGRATION OFFICER, BRISTOL v DIESTEL AND ANOTHER, TH/1774/73(507)

Immigration Appeal Tribunal

[1976] Imm AR 51

Hearing Date: 18 July 1975

18 July 1975

Index Terms:

Crew of ship or aircraft -- Member of the crew -- Wives of ship's officers appearing on ship's articles as stewardesses -- Nominal rate of pay received and no duties performed -- Whether entitled to enter United Kingdom without leave during ship's call as port -- Nationals of German Democratic Republic -- Immigration Act 1971, ss 8(1), 33(1) -- HC 81, para 8, Appendix.

Held:

In the determination reported below the Tribunal, allowing an appeal by an immigration officer against the decision of an adjudicator, held that two wives of ship's officers though listed as stewardesses on the ship's articles were not "members of the ship's crew" as defined in s 33(1) of the Immigration Act 1971; they received only a nominal rate of pay and did not perform any duties. Accordingly, they were not entitled to benefit by the provision in s 8(1) of the Act under which, on the conditions set out in the section, crew members "may without leave enter the United Kingdom". Furthermore, their examination by an immigration officer under para 2 of Schedule 2 to the Immigration Act 1971 was properly required, and as they were nationals of a country listed in the appendix to the Immigration Rules HC 81 and could not produce current visas the immigration officer had properly refused them leave to enter under s 3(1)(a) of the Act and in accordance with para 8 of HC 81.

Introduction:

The facts appear in the determination. PANEL: P. N. Dalton Esq (Vice-President), G. J. Brown Esq, Mrs J. H. Goodchild.

Judgment One:

THE TRIBUNAL: The appellant in this appeal is the Immigration Officer, Bristol, and the two respondents are Mrs Gertrud Diestel and Mrs Monika Molle. The two respondents are East German nationals and they are the wives of the 2nd Engineer and the 3rd Officer, respectively, of the m.v. "Wilhelm Florin". The respondents joined the ship on 6 January 1973 at Rostock for the round trip to East Africa and European ports, being signed on as stewardesses at a nominal rate of pay. When the ship arrived at Avonmouth both the respondents were refused leave to enter, and the reasons may be summarised thus. Mrs Diestel and Mrs Molle are nationals of a country listed in the appendix to HC 81 and are thus visa nationals, who have to produce, if they wish to enter the United Kingdom, a passport endorsed with a United Kingdom visa. Neither of the respondents had a visa nor had they applied for visas before or during the voyage and they were refused leave to enter under s 3(1)(a) of the Immigration Act 1971, and in accordance with para 8 of HC 81. The immigration officer had also taken into consideration s 8(1) and s 33(1) of the Act. Section 8(1) provides:

"Where a person arrives at a place in the United Kingdom as a member of the crew of a ship... under an engagement requiring him to leave on that ship as a member of the crew... he may without leave enter the United Kingdom at that place and remain until the departure of the ship... on which he is required by his engagement to leave."

Crew member as defined in s 33(1) means "all persons actually employed in the working or service of the ship". The immigration officer did not consider that, as the respondents had been granted free trips by the ship's owners to accompany their husbands on the ship's voyage, they were "actually employed in the working or service of the ship". The respondents appealed to an adjudicator Mr I. M. S. Donnell on the ground that when the ship left Rostock on 6 January 1973 a visa could not be obtained because there was no consul or embassy in the German Democratic Republic. In his determinations the adjudicator referred to the relevant provisions of the Immigration Act 1971 and then said in each of his determinations relating to the respondents: "Although the appellant may not have been actually engaged in any duties on board the ship, she was nevertheless on the ship's articles as a stewardess and was in receipt of pay, albeit at a nominal rate. In my view, therefore, she was employed in the service of the ship and, so far as I understand it, would have been obliged to leave with the ship in terms of s 8(1) of the Act. It has not been suggested that there was any reason peculiar to the appellant why she should have been refused entry. I consider therefore she should have been dealt with as a member of the crew under the legislation to which I have referred and should have been allowed leave to enter the United Kingdom on the usual terms for seamen, that is to say, until the ship sailed. For these reasons the appeal is allowed." The adjudicator then went on to consider, though it had not been raised by either party, the question of considering the appellant as a transit passenger. The adjudicator concluded that under the rules it would appear that if the appellant was not strictly speaking a member of the crew of the ship in question she could in any event have been considered as a transit passenger. Application was made for leave to appeal to the Tribunal on the following ground:

"The adjudicator erred in his interpretation of the definition of crew member in s 33(1) of the Immigration Act 1971."

Leave to appeal was granted and there was a combined hearing under r 36 of the Immigration Appeals (Procedure) Rules 1972. A written submission on behalf of the immigration officer, Bristol, has been submitted but no comments on this or submissions on their own behalf have been received from the respondents. This appeal has been considered on a non-hearing basis. After referring to the adjudicator's determination, the submission on behalf of the immigration officer states: "It is an established practice for supernumeraries -- wives of crew members, super-cargoes, marine superintendents etc -- to appear on the articles instead of being regarded simply as passengers. This is done to evade the impact of certain maritime regulations which would otherwise prevent such persons being carried on vessels other than passenger ships. All persons appearing on the articles who do not fall within the scope of the definition of a crew member given in s 33 of the Act of 1971 are treated as passengers for purposes of immigration control. It is submitted that the adjudicator was wrong in holding that the ladies ought to have been dealt with as members of the crew. Section 33 (1) of the Act defines 'crew' as 'all persons actually employed in the working or service of the ship' and it is submitted that these ladies, although appearing in the ship's articles as stewardesses were not actually employed in that capacity as the sole reason for their being on board was to be with their husbands, the 3rd Officer and the 2nd Engineer. Other fully paid stewardesses carried out the work. The provisions of s 8(1) are designed to facilitate the entry of working crew members and the definition of 'crew' in s 33(1) was intended to ensure that only genuine crew members were allowed to benefit. It is submitted that the words 'actually employed' are intended to differentiate between persons who are necessary to the working and service of the ship and others, such as these ladies, who, though on the articles are supernumerary and carry out no duties. Any widening of that definition to include persons not actually employed in the working or service of the ship would weaken the control, in that it would allow persons who were not needed on, and not actually employed on, a ship to enter the United Kingdom without leave provided only that they were on the ship's articles and in due course sailed with it. It is further submitted that, whatever the status of these ladies may be held to be, the immigration officer's decision to refuse leave to enter was entirely in accordance with the law and the immigration rules applicable to the case and did not involve the exercise of a discretion. Having examined the ladies under para 2 of Sch 2 the immigration officer was then bound by r 8 of HC 81 and, as they did not possess the necessary visas, had to refuse them leave to enter." We have considered the papers before us and are fully satisfied that the written submission is valid and that the adjudicator was in error in allowing the respondent's appeal from the refusal of leave to enter. There is no ambiguity in the definition of "crew" in s 33(1) of the Immigration Act 1971. A person in order to be a member of the crew has to be a person "actually employed in the working or service of the ship", and it has never been suggested nor has it been so found by the adjudicator that the respondents in actual fact were employed as expressed in the definition. The refusal of leave to enter was in accordance with the Immigration Act 1971 and the immigration rules applicable.

DISPOSITION:

Appeal allowed.