Secretary of State for the Home Department v. Moussa

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v MOUSSA, TH/769/75(568)

Immigration Appeal Tribunal

[1976] Imm AR 78

Hearing Date: 7 January 1976

7 January 1976

Index Terms:

Employment -- Visitor (non-Commonwealth) admitted on a condition prohibiting employment -- Application to work in city engineer's department as electrician -- Refusal of application without reference to Department of Employment -- No reasons or facts stated by Home Office showing whether under relevant rule the application had been considered a 'normal' one justifying refusal without reference to the Department of Employment -- Form of refusal contrary to Immigration Regulations -- Explanatory statement defective under the Immigration Rules -- Immigration Appeals (Notices) Regulations 1972 (SI 1972 No 1683), reg 4(1)(a) -- Immigration Appeals (Procedure) Rules 1972 (SI 1972 No 1684) r 8(1) -- HC 82, para 5.

Employment -- Decision of Secretary of State refusing application under para 5 of HC 82 -- Refusal, as recorded, held not in accordance with immigration procedure Rules and Regulations -- Adjudicator's task also to determine whether refusal without reference to the Department of Employment was proper on the facts though not, as recorded, complying with statutory procedure -- Immigration Act 1971, s 19(2) -- HC 82, para 5.

Practice and procedure -- Notice of Refusal of application for variation of conditions -- Explanatory statement -- Requirement that reasons and facts be stated -- Application by visitor for variation with view to employment -- Reasons for refusal not adequately stated -- Immigration Appeals (Notices) Regulations 1972 (SI 1972 No 1683), reg 4(1)(a) -- Immigration Appeals (Procedure) Rules 1972 (SI 1972 No 1684), r 8(1) -- HC 82, para 5.

Held:

M was a citizen of the United Arab Republic who was admitted to the United Kingdom for a short visit subject to a condition precluding him from entering employment. He applied for an extension of stay as a visitor and this was refused under para 8 of HC 82. Some months later while M was awaiting the hearing of his appeal against that refusal an application was made on M's behalf by a city engineer's department for a variation of M's conditions of entry to enable the department to employ M as an electrician. That application was also refused by the Secretary of State, the statutory notice of refusal indicating simply that it was refused because when M entered the United Kingdom he was made subject to a condition prohibiting him from taking employment. In the statutory explanatory statement subsequently prepared by the Home Office for the purpose of M's appeal against that refusal, pursuant to r 8(1) of the Immigration Appeals (Procedure) Rules 1972 n1 the refusal was referred to as follows: n1 The material part of rule 8(1) provides that the respondent in an immigration appeal at first instance [in the instant case, the Secretary of State] "shall, as soon as practicable after notice of the appeal is given, prepare a written statement of the facts relating to the decision or action in question and the reasons therefor and take such steps as are necessary to ensure that the statement is referred to an adjudicator or the Tribunal, as appropriate, and that a copy thereof is given to the appellant".

"Paragraph 5 of HC 82 states inter alia 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'. The Secretary of State therefore refused the second application on 7 October 1974."

The adjudicator to whom M appealed held that the reasons for the Secretary of State's decision refusing M's application had not been given as required by reg 4(1) of the Immigration Appeals (Notices) Regulations 1972 n2 and r 8(1) of the Immigration Appeals (Procedure) Rules 1972 n1, inasmuch as it was not apparent that consideration had ever been given to the question whether under para 5 of HC 82 there were factors which would justify reference to the Department of Employment as an exception to the 'normal' practice under para 5 in applications from visitors admitted subject to conditions prohibiting entry into employment n3. The adjudicator allowed M's appeal and directed that his application be referred to the Department of Employment. n1 The material part of rule 8(1) provides that the respondent in an immigration appeal at first instance [in the instant case, the Secretary of State] "shall, as soon as practicable after notice of the appeal is given, prepare a written statement of the facts relating to the decision or action in question and the reasons therefor and take such steps as are necessary to ensure that the statement is referred to an adjudicator or the Tribunal, as appropriate, and that a copy thereof is given to the appellant". n2 Under reg 4(1) the written notice of the refusal of an application made to the immigration authority, in the instant case to the Secretary of State, "shall [inter alia] (a) include a statement of the reasons for the decision or action to which it relates". n3 The second sentence of para 5 of HC 82 states that applications with a view to employment "by people who were admitted subject to a condition prohibiting employment are normally to be refused without reference to the Department of Employment". Paragraph 5 is set out in full on p 81, post. On appeal to the Tribunal by the Secretary of State against the adjudicator's decision, Held: (i) (affirming the adjudicator), on the evidence the decision of the Secretary of State was not in accordance with the Immigration Rules and Regulations because nowhere in the statutory notice of refusal or the explanatory statement was it stated that consideration was given by the Secretary of State to the question whether M's circumstances were 'normal'; however (ii) (allowing the Secretary of State's appeal), the adjudicator should have used his power under s 19(2) of the Immigration Act 1971 n4 and gone on to consider whether the circumstances of M's case were "normal"; and on the facts, though M's services were much sought after there were in his case no "strong personal and compassionate reasons, or reasons involving an aspect of vital public interest" which would have justified a departure from the normal rule. n4 Section 19(2) of the Immigration Act 1971 provides that when considering whether to allow an appeal "the adjudicator may review any determination of a question of fact on which the decision or action [of the immigration authority] was based". Tally v Secretary of State for the Home Department ([1975] Imm. A.R. 83) and Secretary of State for the Home Department v Stillwaggon ([1975] Imm. A.R. 132) applied.

Counsel:

B. Hunter for the appellant Secretary of State. K. S. Nathan, counsel for the respondent. PANEL: L. P. Mosdell (Chairman), J. H. Bowman Esq, L. Golding Esq.

THE TRIBUNAL

Judgment One:

THE TRIBUNAL: The appeal by the Secretary of State was against a decision of the adjudicator, Mr. T. D. Healy, allowing the appeal of the respondent, Mr Adly Riad Moussa, against the refusal to revoke or vary leave to enter the United Kingdom whereby the respondent could be entitled to take up employment in the United Kingdom. Mr Moussa, a citizen of the United Arab Republic, was admitted to this country on 24 February 1974 with a visa endorsed for a short visit. He was given leave to enter until 17 March 1974 on condition that he did not enter employment, paid or unpaid, or engage in any business or profession. On 15 March 1974, two days before his conditions of admission were due to expire, he called at the Home Office and applied for an extension of three months as a visitor. The Secretary of State considered this application in the light of para 8 of HC 82 but was not satisfied that Mr Moussa had sufficient funds to support himself without working for the remainder of his intended stay nor that he intended to leave the United Kingdom at the end of that period. The application was accordingly refused on 15 March 1974. An appeal against this decision was received by the Home Office on 21 March 1974. Whilst waiting for this appeal to be heard a letter was received by the Home Office on 1 October 1974 from the City of Westminster City Engineers Department. In this letter the City Engineer stated that Mr Moussa had applied to him for work as an electrician and that he was applying on the respondent's behalf for permission for him to take up this post. On 7 October 1974 the Secretary of State refused this second application. On 18 October 1974 an appeal against this decision was received by the Home Office but the Secretary of State saw no reason in the grounds of appeal to reverse his decision. Appeals against both the above-mentioned decisions reached the adjudicator and on 2 May 1975 a hearing took place at which Mr E. Pollard of Messrs Pollard & Co, Solicitors, appeared on behalf of the respondent and Mr Parsons appeared on behalf of the Secretary of State. At this hearing the appeal against the refusal of an extension as a visitor was withdrawn and the adjudicator was concerned, as indeed are we, with the question whether or not the decision refusing to revoke or vary the respondent's leave to enter the United Kingdom so that he could take up employment in this country was correct. On 6 May 1975 the adjudicator promulgated his determination and reasons in the latter appeal. He was not satisfied that the Secretary of State had considered whether or not the respondent's case was a 'normal' one or whether there were circumstances by reason of which the matter should have been referred to the Department of Employment. The matter falls to be dealt with under para 5 of HC 82 which reads as follows:

"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."

The grounds of appeal to this Tribunal are as follows: "1. The adjudicator erred in his interpretation of para 5 of HC 82. 2. The respondent's application for his leave to enter to be varied to enable him to take employment was considered under para 5 of HC 82 and no grounds could be found for departing from the normal practice. 3. The adjudicator, after finding that the decision of the Home Office was not in accordance with the law and immigration rules, failed to consider the matter afresh and to decide whether there was justification for treating the application exceptionally." In para 7 of the explanatory statement the Secretary of State had stated:

"7. Paragraph 5 of HC 82 states inter alia 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'. The Secretary of State therefore refused the second application on 7 October 1974."

In the statutory notice of refusal sent to the respondent the Secretary of State had stated:

"The Westminster City Council has applied on your behalf for variation of your leave to enter in order to take employment. However when you entered the United Kingdom you were made subject to a condition prohibiting you from taking employment."

The last six paragraphs of the adjudicator's determination read as follows: "Mr Parsons submitted that regard was had to all of the provisions of HC 82 para 5, before the decision was made. He felt sure that this was so and that it was not the intention to refuse for the reasons stated in para 7 of the explanatory statement. Both the Immigration Appeals (Notices) Regulations 1972, reg 4(1) n5 and the Immigration Appeals (Procedure) Rules 1972 r 8 n6 require that the reasons for the decision be stated and the latter Rules require that the facts relating to the decision be given as well. This is so that the appellant will know the case he has to meet. It is also to enable the appellate authorities to decide whether the decision was in accordance with the law and the immigration rules or whether discretion was properly exercised. n5 The Regulations were made by the Secretary of State under s 18(1) of the Immigration Act 1971; the material provision in reg 4(1) is set out in footnote 2, ante. n6 The relevant provision in r 8(1) is set out in footnote 1, ante. The reasons for refusal given in the short form and in the explanatory statement are all unsupportable standing on their own. An application under para 5 cannot be refused because an applicant was prohibited from taking employment or because he did not have a work permit before he arrived or because he has no claim to remain in employment under the rules. These are factors to be taken into account but they do not determine or dictate the ultimate decision. The applicant knows or is deemed to know all this and what he asks for is the consideration of exceptional treatment under the rules because of the facts of his particular case. The two statutory documents indicate that he did not get what he requested. It is not open to a representative to make submissions contrary to the statutory written case which he attends the appeal to support. He may amplify the reasons if the facts warrant that course or apply to amend them. What was done is a fact and all facts when they are in dispute, have to be proved by evidence. It is not sufficient for Mr Parsons to feel sure that the right course was adopted. This is asking me to accept that the Home Office never makes a mistake. The plain meaning of their words show that they have acted on the wrong principle here. It is true that by using the expression 'inter alia' in para 7 of the explanatory statement knowledge of the wider provisions of the rule is implied. However the normal usage is for the purpose of accentuating the important or operative part of a passage at the expense of the irrelevant or uncontested parts. In this case it seems to me that the misdirection is highlighted rather than the contrary. I find that the reasons given for the refusal of this application are not in accordance with the law or the immigration rules. I have no evidence that the question of making an exception was ever considered. I therefore allow this appeal. I direct that the appellant's application be referred to the Department of Employment." We find it hard to believe that in fact the Secretary of State did not consider the whole contents of para 5 of HC 82 but we, like the adjudicator, have to reach our conclusions on the evidence. We think in the circumstances, therefore, that on the evidence the adjudicator was justified in holding that the decision of the Secretary of State as recorded was not in accordance with the Immigration Rules and Regulations. We reach this conclusion because nowhere in the statutory notice or the explanatory statement is it stated that consideration was given by the Secretary of State to the question whether the circumstances of the respondent were "normal". However, having stated that, we are of the opinion that there is substance in the third ground of appeal quoted above. The adjudicator should, we think, have gone on to consider whether the circumstances of the respondent's case were "normal". He had power to do so under s 19(2) of the Immigration Act 1971 n7. However he did not do so and it falls to us, therefore, to consider whether the respondent's case is an exceptional one. n7 The relevant provision in s 19(2) is set out in footnote 4, ante. We were referred to two cases on this point, namely Tally v Secretary of State for the Home Department n8 and Secretary of State for the Home Department v Stillwaggon n9. In the former case the Tribunal held that "normally" in para 5 of HC 80 which is in pari materia with para 5 of HC 82 (the latter deals with EEC and non-Commonwealth nationals and the former with Commonwealth citizens) meant "in the normal way or usually". In Stillwaggon's case the Tribunal held, inter alia, that to warrant a reference to the Department of Employment under para 5 of HC 80 on an application to enter employment by a person admitted for a temporary purpose with a condition prohibiting employment, there must be exceptional circumstances, "such as strong personal and compassionate reasons, or reasons involving an aspect of vital public interest" n9. With both these opinions we agree. n8 [1975] Imm A R 83; TH/2173/74(352). n9 [1975] Imm A R 132 at p 137; TH/2529/74(392). The facts in Tally's case were not dissimilar to the facts in the subject case. There the appellant, a citizen of Mauritius, was admitted to the United Kingdom as a visitor for 4 weeks with a prohibition on employment. Two months later an application was made by a depot manager of British Rail to employ the appellant as a diesel fitter. The appeal by Tally was dismissed. Here the respondent, a citizen of the United Arab Republic, was admitted to the United Kingdom as a visitor for 3 weeks with a prohibition on employment. Some 7 months later (while Mr Moussa was awaiting the hearing of his appeal against the earlier refusal of an extension as a visitor) an application was made by the City Engineer of the City of Westminster Council to employ him as an electrician. In both cases the applicant's services were much sought after but, as in Tally's case, this does not constitute an abnormal situation, nor do there appear in the subject case to be "strong personal and compassionate reasons or reasons involving an aspect of vital public interest" n9 justifying a departure from the normal rule that where a non-Commonwealth national has been admitted as a visitor for a short period with a prohibition against employment, his application to stay here in employment should be refused without reference to the Department of Employment by virtue of para 5 of HC 82. Hence we allow the Secretary of State's appeal.

DISPOSITION:

Appeal allowed.

SOLICITORS:

Pollard & Co, London W1.