Memi v. Secretary of State for the Home Department

MEMI v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/1334/75(646)

Immigration Appeal Tribunal

[1976] Imm AR 129

Hearing Date: 29 March 1976

29 March 1976

Index Terms:

Minister of religion -- Muslim priest -- Entry as visitor with condition prohibiting employment -- Variation sought in order to enter employment as one of two priests at Birmingham Mosque -- Whether variation for such permit-free employment possible under the immigration rules -- Whether outside the 'general position' requiring that work permit be obtained by employer before entry -- Whether employment of vital public interest warranting exceptional consideration -- HC 79, para 29(a) -- HC 80, para 5.

Held:

The appellant, a citizen of India, was admitted to the United Kingdom as a visitor for 3 months subject to a condition prohibiting him from entering any employment. Shortly after his arrival he entered employment as a priest at a Mosque in Birmingham. His duties, which included teaching, were much less onerous than those of a senior priest already working there full-time. The application to employ him made by the Birmingham Anjumane Islam was refused by the respondent under para 5 of HC 80, n1 and the refusal was affirmed by an adjudicator. On his appeal to the Tribunal it was submitted that as a 'minister of religion' he was not subject to the 'general position' under para 5 applied to persons seeking variations for the purpose of employment, and his application should have been allowed in the discretion of the respondent because it was permit-free employment under para 29(a) of HC 79 n2; alternatively, it was submitted that he could qualify under para 5 of HC 80 because (citing a dictum in The Secretary of State v Stillwaggon [1975] Imm. A.R. 134 at p 137) his work was of 'vital public interest'. n1 Paragraph 5 of HC 80 is set out on p 131, post. n2 Paragraph 29(a) of HC 79 is set out on p 131, post. Held (dismissing the appeal): (i) the omission from HC 80 of any mention of extensions for ministers of religion must be deemed to be deliberate, because under para 29(a) of HC 79 a person seeking entry for employment as a minister of religion was only admissible if holding a current entry clearance "granted for the purpose" (or other documentary evidence that he did not require a work permit), and in practice suchf entry clearance was only issued after enquiry in this country disclosed a need for the person's appointment; and (ii) the appellant's application was properly considered under para 5 of HC 80, and there was nothing sufficiently unusual in his case to take it outside the general provisions of that rule.

Counsel:

Z. H. Chishti of the United Kingdom Immigrants Advisory Service, for the appellant. W. G. Chalmers for the respondent. PANEL: D. L. Neve (Vice-President), E. A. Lewis Esq, Sir Stanley Tomlinson.

Judgment One:

THE TRIBUNAL: The appellant, Mr Ismail Hasan Memi, is a citizen of India who applied to the Secretary of State for a variation of his leave to be in this country. His application was refused. The facts of this case are not in dispute and can briefly be epitomised as follows. The appellant was admitted to this country at Heathrow Airport on 30 November 1972. He was interviewed by an immigration officer and told him that he had come to visit his cousin and intended staying in the United Kingdom for 3 months. He was admitted by the immigration officer as a visitor for 3 months on condition that he did not enter into any employment. Shortly after his arrival he was approached by members of his community -- the Birmingham Anjumane Islam -- and asked to work as a priest at a Mosque in Birmingham. He took employment with them and started work in January or February 1973. On 26 February 1973 formal application was made by Birmingham Anjumane Islam for his conditions of stay to be varied to allow him to continue in his appointment. This application was refused and against the refusal the appellant appealed to an adjudicator. At the hearing before the adjudicator (Mr R. T. Wright) the appellant gave evidence, as did the Secretary of the society employing him, and also an expert witness as to the Muslim religion. Upon the evidence which he heard the adjudicator came to the conclusion that the appellant could properly be regarded as a minister of religion, but after careful consideration he came to the conclusion that the appellant was caught by para 5 of HC 80 -- which deals with applications to remain in this country in employment and to which we will refer more fully later -- and dismissed his appeal. The argument on the appeal before us has revolved around para 5 of HC 80, and it is necessary to set it out in full. It provides:

"5. In regard to variation of leave to enter with a view to employment, the general position is that where a person wishes to come to work in the United Kingdom the employer must have obtained a work permit before the person sets out; and people admitted as visitors or students or for other temporary purposes have under these rules no claim to stay here in employment. Applications for this purpose by people who were admitted subject to a condition prohibiting employment are normally to be refused, without reference to the Department of Employment. In cases where no such condition was imposed, if that Department is prepared in the particular case to approve the proposed employment, an appropriate extension of stay may be granted; if not, an extension should be refused."

Mr Chishti's first submission is that this is a case which is outside para 5 because employment as a minister of religion is permit-free employment, as recognised by para 29(a) of HC 79 which provides as follows: "29. Passengers in the following categories, although coming for employment, do not need work permits and may be admitted for an appropriate period not exceeding 12 months if they hold a current entry clearance granted for the purpose or other satisfactory documentary evidence that they do not require permits: (a) ministers of religion, missionaries and members of religious orders coming to work as such, including those engaged in teaching." Mr Chishti submits that this rule makes it clear that the Department of Employment are not concerned with the employment of priests and he refers to the first part of para 5 of HC 80 which refers to "the general position". He submits that by virtue of his employment the appellant in this case comes outside the "general position". Therefore he submits that it is not necessary for the application to have been referred to the Department of Employment, and the Secretary of State had a discretion which in this case he did not exercise at all. That is Mr Chishti's first ground of appeal. His second and alternative ground of appeal relates to a dictum of the Tribunal in The Secretary of State v Stillwaggon n3 in which the Tribunal said this: n3 [1975] Imm A R 132 at pp 136-137; TH/2529/74(392).

"It was argued before the adjudicator that this was not a normal case within the meaning of para 5 of HC 80 and that the application to vary should have been referred to the Department of Employment. In the appeal of S. E. Tally n4 the Tribunal expressed the opinion that 'normally' means 'in the normal way or usually'. We agree with that view and we accept the submission made to us that to warrant the reference to the Department of Employment of an application by a person prohibited from taking employment there must be exceptional circumstances, such as strong personal and compassionate reasons or reasons involving an aspect of vital public interest."

n4 [1975] Imm A R 83; TH/2173/74(352). Mr Chishti submits that the appellant's appointment to the Mosque in this case is a matter of "vital public interest". Dealing with the second ground of appeal first, we do not consider that the evidence given before the adjudicator was such as to support this contention. There is a full-time priest with superior qualifications to those of the appellant who officiates at the Mosque and who teaches approximately 70-80 children. The appellant only deals with five. Taking into account all the evidence given, although we can see that it would be more convenient if the appellant were allowed to stay, we are not of the opinion that it could properly be said that this is a matter of "vital public interest", and the second ground of appeal accordingly must fail. With regard to the first ground of appeal Mr Chalmers' case is this: there is no provision in HC 80 for persons admitted as visitors to be allowed to remain as priests. Paragraph 5 of HC 80 is consequently the only rule in point. Mr Chalmers has drawn our attention to the fact that para 29 of HC 79 provides that people may come to this country to work as priests but are only admissible as such "if they hold a current entry clearance granted for the purpose or other satisfactory documentary evidence that they do not require permits". Such entry clearance is in practice only issued after due enquiry made in this country as to the need for such an appointment and similar matters. If these enquiries are favourable the applicant may then be issued with entry clearance for an initial period not exceeding 12 months. From this, Mr Chalmers submits, it is clear that the omission from HC 80 of any mention of extensions for ministers of religion is not accidental but deliberate and para 5 of HC 80 has to apply. We have considered these matters and have come to the conclusion that Mr Chalmers' submission is well-founded. Paragraph 5 of HC 80 makes it perfectly clear that persons admitted as visitors have no claim under the Rules to remain here in employment, and we do not consider that there is anything sufficiently unusual in this case to take it outside the general provisions of this rule. n5 n5 An application for leave to move the Court for Orders of Certiorari and Mandamus made on the appellant's behalf in the Queen's Bench Divisional Court on 25.5.76 was refused.

DISPOSITION:

Appeal dismissed.