Chulvi v. Secretary of State for the Home Department

CHULVI v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/10780/75(648)

Immigration Appeal Tribunal

[1976] Imm AR 133

Hearing Date: 1 April 1976

1 April 1976

Index Terms:

Employment -- Work permit holder -- Extension of stay -- New employment not approved by Department of Employment -- Employment on domestic staff of a hospital experiencing difficulty in recruiting workers -- Discretion given by immigration rule "in the light of all the relevant circumstances" -- Whether nature of employment could be a "relevant circumstance" -- Matters included in words "relevant circumstances" in the rule -- HC 82, para 17.

Held:

The appellant, a Spanish citizen, entered the United Kingdom in 1973 with a work permit for hotel employment. In 1975 he wanted to take employment in a hospital, and two applications to employ him were made by the hospital (first, for his employment as a domestic assistant and later, alternatively, as a waiter). Neither employment was approved by the Department of Employment, and acting under para 5 of HC 82 the Secretary of State refused both applications to remain in this country in the hospital's employment. On his appeal to an adjudicator the appellant's case was considered more properly under para 17 of HC 82 n1, and it was contended for the appellant that the last sentence of para 17 by reason of the words "all the relevant circumstances" gave the Secretary of State, and therefore the adjudicator, a discretion to allow the appellant to remain in a socially valuable job providing service to the community in a hospital. The adjudicator dismissed the appeal, holding that in matters relating to employment the decision of the Department of Employment was final and that the words "relevant circumstances" in para 17 must relate to matters outside the question of employment, such as the exercise of a discretion on compassionate grounds, as to which in the instant case there was no evidence. n1 Paragraph 17 of HC 82 is set out on p 134, post. On further appeal to the Tribunal, the appellant's representative repeated her previous submissions, and the respondent's representative supported the adjudicator's decision, submitting further that the words "all the relevant circumstances" were designed to deal with the exceptional case, possibly involving compassionate circumstances justifying an extension of stay in another capacity or, for example, an application for settlement under para 26 of HC 82 n2. n2 Under para 26 of HC 82, certain persons, including those who have been in approved employment in the United Kingdom for 4 years, may apply for the time limit on their stay to be removed, and such applications are to be considered "in the light of all the relevant circumstances". Held (affirming the adjudicator's decision): (i) The Tribunal had a discretion under para 17 of HC 82, but it was a discretion which ought not to be exercised contrary to the principle applied in the cases governed by para 5 of HC 80 and HC 82, namely that the approval of a particular employment was essentially a matter for the Department of Employment; (ii) the adjudicator's conclusion that the words "relevant circumstances" must relate to matters outside the question of employment, such as compassionate grounds affecting the appellant, was a very reasonable one with which the Tribunal concurred whilst regretting the view taken by the Department of Employment on the hospital employment; (iii) there was no evidence before the Tribunal to indicate that the appellant should have been granted an extension of stay on any alternative ground to the hospital employment which was not approved by the Department of Employment.

Counsel:

Mrs S. Parkes of the United Kingdom Immigrants Advisory Service, for the appellant. K. E. R. Rogers for the respondent. PANEL: D. L. Neve Esq (Vice-President), G. J. Brown Esq, Mrs B. Warburton.

Judgment One:

THE TRIBUNAL: The appellant is a citizen of Spain. He arrived in this country in June 1973 in possession of a work permit and worked as a waiter in a hotel in Bridlington until October 1973. In that month, with the approval of the Department of Employment, he was granted an extension of stay until April 1975 in order to work at a hotel in Birmingham. Early in 1975 the domestic superintendent of a hospital near Birmingham applied to the Department of Employment for permission to employ the appellant as a domestic assistant. This was not approved by the Department of Employment and consequently, when application for an extension of stay was made by the hospital on the appellant's behalf, the application was refused by the respondent in view of the Department of Employment's previous decision. Subsequently a further application was made by the hospital to the Secretary of State for the appellant to be allowed to remain in the hospital's employment -- not as a domestic assistant, but as a waiter. This was referred to the Department of Employment, who maintained their previous decision, and the second application was consequently also refused by the Secretary of State. The appellant appealed against this refusal to an adjudicator (Mr D. J. B. Jarvis), who dismissed his appeal but granted leave to appeal to the Tribunal. At the hearing before the adjudicator it was agreed by both the appellant's and the respondent's representatives that this matter had been wrongly considered under para 5 of HC 82. It was agreed that the appropriate paragraph was para 17 of HC 82 which specifically deals with work permit holders. This paragraph reads as follows:

"17. A person coming here to work, and having a work permit issued by the Department of Employment, will normally have been admitted for the period specified in the permit up to a maximum of 12 months. At the end of that period an extension of stay may be granted if the applicant is still engaged in the employment specified in the permit, or other employment approved by the Department of Employment, and the employer confirms that he wishes to continue to employ him. Unless there is any special reason to the contrary, this extension should be for a further 3 years. A corresponding extension should be granted to the applicant's wife and children, where appropriate. Cases where the applicant is no longer in approved employment should be considered in the light of all the relevant circumstances."

The Home Office representative submitted to the adjudicator that in view of the Tribunal's decision in the case of Lim Chow Tom v The Secretary of State n3 it was not open to the Secretary of State to question the decisions of the Department of Employment. In reply the appellant's representative submitted that the case quoted (and the other cases which were considered by the Tribunal in the course of it) all had reference to para 5 of HC 80 and not to para 17 of HC 82. She pointed particularly to the last sentence of para 17, which she submitted makes it quite clear that the Secretary of State has a discretion in these cases, and consequently so does the adjudicator. It had been previously indicated by the Department of Employment that they would be prepared to approve the appellant's continued employment as a waiter at a hotel, but they were not prepared to allow him to work in a socially valuable job providing service to the community in a hospital. She submitted that this was a "relevant circumstance" which should entitle the appellant to the exercise of the Secretary of State's discretion in his favour. Mr Jarvis dealt with this matter in his determination in the following way: n3 [1975] Imm A R 137; TH/2583/74(393). "There appears to me to be no doubt whatsoever that there is a discretion on the part of the Home Office where the applicant is no longer in approved employment. If there were no discretion there could be no reason for the words contained in the last sentence of para 17. Having no reported case available to guide me, I find some difficulty in coming to a conclusion as to what might be the 'relevant circumstances' which would allow the Home Office and of course myself as an adjudicator to permit the appellant to remain in the United Kingdom even though the employment he is undertaking is not approved by the Department of Employment. I must confess that I find it difficult to imagine circumstances which may be relevant. I am however quite satisfied in my own mind that these circumstances cannot relate to the employment itself. Although the case of Lim Chow Tom relates to para 5 of HC 80, it appears to me that the general principle is clearly laid down that on matters relating to employment the decision of the Department of Employment is final. I therefore conclude that the 'relevant circumstances' mentioned in para 17 must relate to matters outside the question of employment. I suppose that in certain circumstances the Home Office and an adjudicator would be entitled to exercise a discretion on compassionate grounds. In this case I have heard nothing which would lead me to consider the matter on this basis but have heard only the question of the employment itself." For these reasons he dismissed the appeal. Leave to appeal against the adjudicator's decision was granted by the Tribunal. Mrs Parkes, for the appellant, has repeated before us the submission which she made before the adjudicator -- in a nutshell, that we have a discretion in this case by reason of the last sentence of para 17 of HC 82 and that it is a discretion which in the circumstances of this case should be exercised in the appellant's favour. Mr Rogers for the respondent concedes that the sentence in question does provide the Secretary of State -- and hence the adjudicator and the Tribunal -- with a discretion; but he submits that this is not a case in which such discretion should be exercised, and this for the following reasons: although the case of Lim Chow Tom and the earlier case of Tally n4 were concerned with para 5 of HC 80 and not with para 17 of HC 82, nevertheless they are clear authority for the proposition that all matters appertaining to the employment of Commonwealth citizens and aliens are matters for the Department of Employment whose decision should not be interfered with or overridden by the Secretary of State for the Home Department. This he submits is a principle which should be firmly borne in mind when looking at para 17. Therefore he submits that the sentence which has caused all the trouble, "Cases where the applicant is no longer in approved employment should be considered in the light of all the relevant circumstances", is designed to deal with the exceptional case -- possibly involving compassionate considerations justifying an extension of stay in another capacity or, for example, an application for settlement under para 26 of HC 82. He submits that these are the sort of "relevant circumstances" which would be considered under para 17 and suggests that matters relating simply to the nature of the employment involved should not amount to such circumstances. n4 Tally v The Secretary of State for the Home Department [1975] Imm A R 83; TH/2173/74 (352). We have considered these matters. We are satisfied that by reason of the last sentence of para 17 we have a discretion which we would not have in considering cases covered by para 5. We are fully satisfied that the work which the appellant wishes to do in a mental hospital is more worthwhile, and of very much greater value to the community, than the job of a waiter in a hotel. At the same time, however, we are of opinion that the discretion in para 17 should not be exercised contrary to the principle enunciated in the cases governed by para 5 of HC 80 and HC 82, namely that the granting of permission to take a particular employment is essentially a matter for the Department of Employment. In any event, however, the fact that the community as a whole might possibly benefit from the appellant being allowed to work in a hospital is not in our view a sufficiently exceptional circumstance to justify an exercise of our discretion in the appellant's favour under para 17. It seems to us that the adjudicator's conclusion that "relevant circumstances" must relate to matters outside the question of employment, such as to the exercise of a discretion on compassionate grounds affecting the appellant, was a very reasonable conclusion and one with which we concur. We would only comment that if it is true that the hospital funds great difficulty in recruiting staff to do the job which the appellant wishes to do (which certainly seems to us probable), on the information available to us it appears curious that the Department of Employment should be willing to allow the appellant to work in a hotel but not in the hospital. However, for the reasons which we have given, we feel bound to hold that this is essentially a matter for them and not for us. This appeal is consequently dismissed.

DISPOSITION:

Appeal dismissed.