Secretary of State for the Home Department v. Sidique

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v SIDIQUE, TH/1468/75(553)

Immigration Appeal Tribunal

[1976] Imm AR 69

Hearing Date: 4 December 1975

4 December 1975

Index Terms:

Practice and procedure -- Record of proceedings before appellate authority -- Submissions of parties to be summarised in adjudicators' notes -- Immigration Appeals (Procedure) Rules 1972, r 40.

Student -- Extension of stay -- Breach of conditions -- Condonation -- Application following second breach of conditions -- Earlier breach excused when earlier extension granted -- Whether earlier breach was condoned so as to preclude its being taken into account on further application for extension following further breach -- HC 80, paras 4, 13 -- (HC 82, para 4).

Held:

In the determination reported below consideration was given by the Tribunal to the submission of a student's representative that the Secretary of State had, by granting an extension of stay, condoned a breach of a student's entry conditions: the Secretary of State had in 1973 granted an extension of stay for study purposes, notwithstanding that the student applicant had overstayed by 9 months his limited leave to enter for 12 months. In those circumstances it was submitted for the student that when he was again in breach, by overstaying 6 months, his first breach had been condoned, overcome or forgiven, and in the circumstances of his present satisfactory studies that earlier breach could no longer be held against him under the 'general considerations' in para 4 of the Immigration Rules HC 80 n1 on his further application for an extension under para 13 of HC 80. n1 Paragraph 4 of HC 80 provides, inter alia, that failure to "observe the time limit and conditions subject to which (the applicant) was admitted" is a relevant fact to be taken into account when deciding whether his application for variation of conditions, under the immigration rule in HC 80 appropriate to his category, should be granted. The Tribunal, allowing an appeal by the Secretary of State against the decision of an adjudicator, held that though the student had been given another chance in 1973 following his first overstay, this did not mean that that overstay could not subsequently be taken into account; in view of the warnings given to the student he should, inter alia, have sought assurance from his High Commission that they had dealt expeditiously with the application for an extension with which he had entrusted them, so that he did not again become in breach of his conditions; the onus was on him to observe his conditions of admission. Per curiam: The immigration rules do not provide for the condonation, in the sense of full forgiveness, of past immigration offences. The Tribunal in their determination also stressed the importance of compliance by adjudicators with r 40 of the Immigration Appeals (Procedure) Rules 1972 which requires that "the appellate authority shall cause a summary of the proceedings before it to be taken".

Counsel:

K. E. R. Rogers for the appellant Secretary of State. Miss S. Hatton of the United Kingdom Immigrants Advisory Service, for the respondent student. PANEL: P. N. Dalton Esq (Vice-President), A. Hooton Esq, J. A. Noble Esq.

Judgment One:

THE TRIBUNAL: The appellant in this appeal is the Secretary of State for the Home Department and the respondent is Abdul Razag Lamin Sidique, a citizen of Sierra Leone, born on 22 December 1950. Mr Sidique was admitted to the United Kingdom on 4 September 1970 as a student for a period of 12 months. At the end of his permitted stay the respondent did not leave the United Kingdom or apply to the Home Office for an extension, and on 16 June 1972 the Home Office wrote to Mr Sidique. He replied that he had not applied for an extension because he had not obtained high enough grades to obtain a place for a course beginning in September 1971 and he enclosed a letter from Leeds Polytechnic making him a conditional offer of a place on a full-time LLB course. He continued that in a months' time he would submit proof of his admission to Leeds Polytechnic and would apply for an extension of stay. He did not do so, and the Home Office wrote to him twice and warned him that he was in serious breach of his landing conditions. The respondent replied on 20 November 1972, stating that, as he had not obtained a college place, he was now studying for the Intermediate LLB in the evenings and enclosed a letter confirming this from Walbrook College. As these arrangements did not meet student requirements under the immigration rules his application for an extension of stay was refused on 27 December 1972. The respondent appealed against this refusal but he then made arrangements to study full-time at the Holborn College of Law in preparation for the LLB intermediate examination in June 1973. At the invitation of the Home Office he withdrew his appeal and his stay was extended to 31 August 1973. At the end of his permitted stay Mr Sidique again overstayed and when the Home Office wrote to his address in Holford Road, London NW11, the occupier replied that he did not know and had not met the respondent. On 7 March 1974 the Sierra Leone High Commission wrote to the Home Office requesting an extension of stay for the respondent and enclosed two documents. One was from Holborn Law Tutors dated 1 November 1973 saying that Mr Sidique had enrolled on a full-time LLB intermediate course. The other was a bank statement. The Secretary of State considered the facts and was not satisfied that the respondent if permitted to remain would observe any condition imposed on his stay in the future. The application was accordingly refused. (HC 80 para 4 n2 refers.) Paragraph 6 of the Home Office statement is as follows: n2 See footnote 1, ante.

"6. At the same time the Secretary of State reviewed the history of the appellant's case and, after taking full account of all the relevant circumstances, he decided to make a deportation order against the appellant, by virtue of s 3(5)(a) of the Immigration Act 1971 and to give directions for his removal to Sierra Leone. In reaching this decision the Secretary of State had regard to the fact that the appellant, having been admitted to the United Kingdom on 4 September 1970 for 12 months as a student and (after overstaying for 9 months) having had his stay subsequently extended to 31 August 1973, had again failed to comply with his conditions of stay and had remained in the United Kingdom in breach of his conditions for over 6 months from 31 August 1973 to 7 March 1974. The secretary of State also had regard to the need to maintain an effective immigration control (HC 80, paras 4, 38, 39 and 42 refer)."

On 27 September 1974 Mr Sidique wrote to the Home Office forwarding a letter dated 14 March 1974 from the Sierra Leone High Commission which showed that they had been the cause of the delay in the respondent's last application for an extension of stay, having held his passport from August 1973 to March 1974. Mr Sidique also submitted a letter dated 29 May 1974 from Holborn Law Tutors confirming that he had been a full-time student for the academic year 1973-74; his attendance had been very good, and they understood that he proposed to re-enrol for the second year. The Home Office statement concluded as follows:

"8. In the light of this evidence the Secretary of State again reviewed the appellant's case and decided to withdraw the notice of intention to deport. However, in October 1974 the Home Office telephoned the Holborn Law Tutors, who said that according to their records the appellant had not re-enrolled. The Secretary of State therefore decided that his refusal of 1 May 1974 to extend the appellant's stay as a student should stand, but that the reasons given on the form APP 101 of that date were not now fully appropriate. The Home Office therefore wrote to the appellant on 7 November 1974 informing him that the Secretary of State had decided to withdraw the notice of intention to deport him, but that the decision not to extend his stay was maintained. However, as the original refusal notice did not now properly reflect the reasons for the decision, the grounds for refusal were now as follows: 'The Head of Chancery, Sierra Leone High Commission, has applied on your behalf for your leave to enter to be varied so as to permit you to remain as a student of law at Holborn Law Tutors. However, you are not attending a full-time, day-time course of study and, furthermore, the Secretary of State is not satisfied that, having regard to all the circumstances of your case, if permitted to remain, you would satisfactorily meet the student requirements of the immigration rules in the future.' At the same time the appellant was invited to withdraw his appeal against deportation and further grounds of appeal, if he so wished, but it appears to date that he has not done so."

Mr Sidique appealed to an adjudicator, Mr. E. J. T. Housden, and was represented by Miss Susan Hatton of the UKIAS. Mrs B. Gray represented the Secretary of State. In his determination the adjudicator said that both Miss Hatton and Mrs Gray made submissions to him but in the record of proceedings all that is set down is "discussion of case". No witnesses were called. In his determination the adjudicator set out the relevant rules, that is paras 4 n3 and 13 of HC 80. He then said: n3 See footnote 1, ante. "In relation to the immigration rules the appellant has had a very chequered career in the United Kingdom. He twice remained here without permission long after his permitted stay had expired, and at one stage the Secretary of State decided to make a deportation order against Mr Sidique but later withdrew the notice of intention to deport. The present appeal concerns the decision on 1 May 1974 to refuse a further extension. Annex 8 to the Home Office statement shows that during the academic year 1973-74 the appellant had been a full-time student at Holborn Law Tutors and that his attedance had been very good. The question of adequate funds does not appear to have been in dispute at any time. The reason for the appellant's late application for a further extension had been explained by the Sierra Leone High Commission in their letter dated 14 May 1974. It therefore appears to me that at the date of the Home Office decision in question the appellant currently met the requirements of para 13 (being still enrolled at Holborn Law Tutors) and his two earlier failures to apply promptly for extensions of stay had been respectively condoned by the Home Office and explained by the Sierra Leone High Commission. I therefore consider that on 1 May 1974, in terms of paras 4 and 13 of HC 80, the Secretary of State ought not to have refused Mr Sidique a further extension of stay as a student." Pausing there is seems that the adjudicator having come to such a conclusion could properly have concluded his determination and allowed the appeal. The adjudicator however went on to discuss the problem in the appeal which arose out of the last paragraph of the Home Office statement and he mentioned two cases. Whether the problem had arisen during the hearing of the appeal and whether the parties' representatives had made submissions on the matter and if so whether the adjudicator agreed or did not agree with the submissions we do not know as the record of proceedings only states "discussion of case". Rule 40 of the Immigration Appeals (Procedure) Rules 1972 provides that "the appellate authority shall cause a summary of the proceedings before it to be taken", and there are obvious reasons for this. However, though r 40 of the Procedure Rules has not been complied with in this appeal, we are only concerned with whether the Secretary of State, because of condonation, should not have refused an extension of stay. The grounds of appeal on which an application for leave to appeal was granted are:

"The adjudicator erred in concluding that an extension given after a period of overstaying condones the breach and therefore cannot subsequently be taken into account in reaching a later decision."

It appears from the undisputed facts that after the respondent's permitted stay expired in September 1971 he overstayed for some months and it was not until June the following year that the Home Office was able to contact him. He then said that in a month's time he would submit proof of admission to Leeds Polytechnic and would apply for an extension of stay. He did not do as he said he would, and it was only after he had been written to twice that he replied saying that he was doing a course of study at Walbrook College. This course did not meet with the requirements of the immigration rules, and the application for an extension of stay was refused. However, when Mr Sidique showed that he had enrolled for a full-time course of study at Holborn College of Law in preparation for an LLB intermediate examination in June 1973, his stay was extended to 31 August 1973. This extension of stay is considered by the adjudicator to be condonation by the Home Office of his failure to apply for an extension of stay. If the words 'condoned by the Home Office' are used by the adjudicator as meaning that Mr Sidique's overstay has been pardoned by the Home Office we do not agree that such meaning can be put on the words. In our view the extension of stay that was granted amounts to no more than that the respondent having produced evidence of full-time study, was being given another chance and the fact that he has been given another chance in no way means that he was being given, so to speak, a clean slate. The immigration rules do not provide for the condonation, in the sense of full forgiveness, of past immigration offences, though if Mr Sidique had not been in breach of the immigration rules afresh, the Home Office would have had no reason to refer to the matter again. The respondent having been given another chance nevertheless overstayed again. His extension of stay expired on 31 August 1973 but he did not contact the Home Office and when the Home Office wrote to the respondent in February 1974 at his last known address the occupier replied that he did not know and had not met the respondent. It was on 7 March 1974 that the Sierra Leone High Commission wrote to the Home Office requesting an extension of stay for Mr Sidique. Mr Sidique has said that this delay in applying for an extension of stay was the fault of the High Commission, since they had misplaced his passport, and such misplacement is indeed an explanation, as the adjudicator said, why the High Commission did not request a further extension of stay until March by which time the respondent had again overstayed his time for some 6 months. Miss Hatton argued on behalf of Mr Sidique that the Home Office had granted an extension of stay with full knowledge that the respondent had overstayed the first time and, as to his overstay on the second occasion, he had not deliberately done so as he had handed in his passport for transmission to the Home Office. We have considered this and the other submissions put forward by Miss Hatton, which submissions contain the argument that the respondent's first overstay had been overcome or forgiven by the grant of an extension of stay and so the first overstay could no longer be held against the respondent, but in our view this appeal must succeed. The onus was on Mr Sidique to observe his conditions of admission during his stay in the United Kingdom. He gave no valid reasons for his first overstay and though he was given another chance this did not mean that his first overstay could not be taken into consideration. In view of the warnings given to him by the Home Office it might be thought that after his further extension of stay ended in August 1973 he would have sought assurance from the Sierra Leone High Commission that they had been in contact with the Home Office, so that he did not again become in breach of his conditions. However, he did not contact the High Commission as the months passed by, nor did he contact the Home Office, nor indeed did he think it necessary to inform the Home Office of his change of address. In such circumstances in our judgment the Secretary of State was justified, in view of para 4 of HC 80 n4, in refusing to grant the respondent an extension of stay as a student. n4 See footnote 1, ante.

DISPOSITION:

Appeal allowed.