Secretary of State for the Home Department v. Petrou

SECRETARY OF STATE FOR THE HOME DEPARTMENT v PETROU, EX TH/3950/76(1137)

Immigration Appeal Tribunal

[1978] Imm AR 87

Hearing Date: 26 January 1978

26 January 1978

Index Terms:

"Limited leave" to enter or remain in the United Kingdom -- Leave expiring on date falling on a Sunday -- Whether leave automatically extended to the Monday following -- Whether Sunday in that context an 'excluded day' -- Whether refusal of an application for variation of that leave made on the Monday could be appealed -- Immigration (Variation of Leave) Order 1976 -- Immigration Appeals (Procedure) Rules 1972, r 43(1) -- Interpretation Act 1889.

Appeal -- Right of appeal -- "Limited leave" to enter or remain expiring on date falling on a Sunday -- Whether application for variation of that leave made on the Monday following should be deemed to have been made during the period of "limited leave" -- Whether any appeal possible on a refusal of that application -- Immigration Appeals (Procedure) Rules 1972, r 43(1) -- Immigration (Variation of Leave) Order 1976.

Held:

When a limited leave to enter or remain in the United Kingdom expires on a date which falls on a Sunday the leave is not automatically extended to the Monday. Accordingly, (in the case before the Tribunal), an application for variation of such a leave made on the Monday by a personal call at the Home Office was not an application which, on its refusal, could have given the applicant any right of appeal either extra-statutory or by reason of the Immigration (Variation of Leave) Order 1976. The Tribunal so held on the facts and the law which are set out in the determination reported below.

Counsel:

B. Hunter for the appellant Secretary of State. P. Zorbas, counsel for the applicant/respondent. PANEL: A. Hooton Esq (Chairman), Mrs J. D. Caine, Mrs J. H. M. Goodchild

Judgment One:

THE TRIBUNAL: We heard on 26 January 1978 this application by the Secretary of State for the Tribunal to review the opinion of an adjudicator (Mr M. Patey) advising a reversal of the refusal to vary the conditions attached to Mrs Chrystallou Petrou's leave to be in this country. We allowed the Secretary of State's application and now give our reasons. Chrystallou Petrou arrived at Heathrow Airport on 15 June 1975 and was given leave to enter and remain in the United Kingdom for one month. Her leave was subsequently extended to Sunday 31 August 1975. On the following day 1September 1975 her son-in-law called at the Home Office to request that she be permitted to remain permanently. This application was refused on 3 February 1976. Chrystallou Petrou appealed against the refusal. In view of the House of Lords decision in Suthendran n1 she had no right of appeal, the Secretary of State's decision not having been given until after her leave had expired. Since the House of Lords decision referred to, the Immigration (Variation of Leave) Order, 1976 has been made, n2 automatically extending in certain cases the duration of the leave of a person who has made, before the expiry of that person's limited leave, application for a variation of that leave until 28 days after the Secretary of State's decision on that application. That order only came into operation on 27 September 1976 and the extension given by it does not apply to cases where the limited leave had expired (as in this present case) before that date. However, in such cases where application for variation was made before the limited leave had expired it has been the practice for an extrastatutory review of the decision to be authorised and for an adjudicator to give an 'advisory opinion'. n1 Suthendran v Immigration Appeal Tribunal [1977] Imm A R 44 (HL). n2 S.I. 1976 No 1572. Mr Patey gave an advisory opinion in the present case because he held that Sunday was an "excluded day". On this basis Chrystallou Petrou's leave was extended to 1 September 1975 and it followed that the application made on her behalf on that day for a variation was made before her limited leave had expired. The adjudicator's reason for so holding appears to be based on r 43(1) of the Immigration Appeals (Procedure) Rules 1972. n3 That rule, however, is applicable only to the computation of time limits for appealing against decisions and does not purport to extend the period of authorised leave. n3 Rule 43(1) is in the following terms: "Where the time provided by these Rules for doing any act expires on a Sunday or a public holiday and by reason thereof the act cannot be done on that day, the act shall be in time if done on the next working day". Counsel on behalf of Chrystallou Petrou agreed that r 43(1) related only to time limits for appeals, but suggested that provisions in the Interpretation Act 1889 had the effect of excluding Sundays in the present context. We have not been able to find any provision in that statute which has the effect of extending Chrystallou Petrou's leave to 1 September 1975. Counsel also drew our attention to the case of Pritam Kaur v S Russell & Sons Ltd n4 in which it was held that in computing the period of three years within which an action under the Fatal Accidents Acts 1846 to 1959 had to be commenced n5 the time for issuing a writ was extended until the next day if the court offices were closed on the last day of the three years. Lord Denning MR said n6: n4 [1973] 1 All ER 617. n5 The Fatal Accidents Act 1846, s 3, as amended by the 1954 Act, provides that an action "shall be commenced within three years after the death". n6 [1973] 1 All ER at p 620.

"So I am prepared to hold that, when a time is prescribed by statute for doing any act, and that act can only be done if the court office is open on the day when the time expires, then, if it turns out in any particular case that the day is a Sunday or other dies non, the time is extended until the next day on which the court is open."

We do not think this case helps Chrystallou Petrou. It lays down generally, as regards time limits for commencing legal proceedings, what is specifically provided for in r 43(1) of the Immigration Appeals (Procedure) Rules 1972 and is, in our view, no more applicable to the extension of a period of leave than is that rule. For these reasons we find that the adjudicator erred in reviewing the refusal of the Secretary of State to vary Mrs Chrystallou Petrou's leave to be in this country: her application for variation was not made before the expiry of her limited leave. In view of our decision as to this it is unnecessary to consider the other matters raised in the Secretary of State's request for a review, and they were not argued.

SOLICITORS:

Yanakas & Co, N7.