Tambimuttu v. Secretary of State for the Home Department

TAMBIMUTTU v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/40457/79(1677)

Immigration Appeal Tribunal

[1979-80] Imm AR 91

Hearing Date: 27 November 1979

27 November 1979

Index Terms:

Practice and procedure -- Notice refusing variation of leave -- Amendment of notice by Secretary of State after receiving notice of appeal -- Whether power in Secretary of State to amend notice of refusal -- Question for consideration whether amendment was of the 'ground' (or legal basis) for the decision or of the 'reasons' by virtue of which the decision on that ground was reached -- If amendment no more than a clarification and amplification of original reasons for refusal it should (normally) be allowed -- Immigration Act 1971, s 18 -- Immigration Appeals (Notices) Regulations, reg 4(1)(a) -- HC 80, paras 4, 5, 16.

Held:

The appellant single woman was a citizen of Sri Lanka born in 1954. In May 1978, holding an entry clearance as a visitor, she was admitted to the United Kingdom for 12 months subject to a condition prohibiting entry into employment. She purported to be visiting this country only for a holiday and to attend the wedding of her sponsoring brother, and she gave the entry clearance officer to understand that her father was in Sri Lanka. However, one month after her arrival her father, who had been in this country since 1972, applied for revocation of her conditions to enable her to take employment and to reside with him here permanently; and a few days later a firm of solicitors applied for permission to employ her as a trainee solicitor. The applications were refused, and the notice of refusal stated that the Secretary of State was not satisfied that the appellant qualified for settlement "under any of the immigration rules" and (in regard to the application for variation to enable her to become a trainee solicitor) that she was being refused because on entry she had been made "subject to a condition prohibiting (her) from taking employment" n1. An appeal was lodged, but before it was listed for hearing the Home Office wrote to the appellant, informing her that while the Secretary of State's decision was unchanged the reasons for the decision as previously conveyed were not wholly applicable and accordingly the notice of refusal had been redrafted. The ground for refusing settlement was unchanged -- namely that the appellant did not qualify for settlement under any of the immigration rules, but the new refusal of variation for the purpose of trainee employment stated that "having regard to" the manner in which she gained admission and the facts now available, the Secretary of State was not prepared to extend her stay "notwithstanding any possible approval by the Department of Employment of an offer of training". n1 See footnote 3, post. An opportunity to change her grounds of appeal was given to the appellant, but at the hearing before the adjudicator and (on his dismissal of her appeal) also before the Tribunal her representative sought only to argue that her appeal should be allowed on the documents because in his submission the Secretary of State had no power to amend the ground of refusal as he had done. Reference [1979-80] Imm AR 91 was made to s 18 of the Immigration Act 1971, as also to reg 4(1)(a) of the Immigration Appeals (Notices) Regulations 1972, and earlier decisions on amendments to notices of refusal were considered. For the Secretary of State it was submitted that the word "ground" in s 18(2) of the Act n2 meant 'legal basis' as opposed to the 'reasons' for a decision taken upon that "ground", and accordingly that the amendment in the present case, distinguishing Ekrem Mehmet's Case ([1977] Imm. A.R. 56, DC), was permissible. n2 Section 18(2) of the Immigration Act 1971 is set out on p 94, post. Held: The amendment had been properly allowed by the adjudicator because it did not change the "ground" (or legal basis) of the decision but was no more than a clarification and amplification of the original reasons for the refusal. With regard to the refusal of a variation for trainee employment -- the only part of the original notice which was amended -- it was implicit in the original notice that the Home Office was not prepared to refer the matter to the Department of Employment; but since admission subject to a prohibition on employment was no absolute bar to such a refusal -- inter alia because there was a discretion under para 16 of HC 80 to refer the matter to that Department -- the amended notice simply gave details as to why the Home Office was not prepared so to refer the matter. Per curiam: To reach a decision on whether to allow an amendment of a notice of refusal (subject always to notice of the amendment being given to the appellant so that he be not taken by surprise), it was necessary to consider whether the proposed amendment was an amendment of the "ground" (or legal basis) of the decision appealed against or was an amendment of the 'reasons' by virtue of which the refusal on that "ground" had been reached. It was not, however, possible to lay down any hard and fast rule applicable to every case. (see p 96, post). R v Immigration Appeal Tribunal, ex p Ekrem Mehmet (QBD), [1977] Imm A R 56, distinguished. Rina Dutta v Immigration Officer, London (Heathrow) Airport, TH/40028/79(1455) (unreported), considered and approved.

Counsel:

A. Riza of the Joint Council for the Welfare of Immigrants, for the appellant. B. Hunter for the respondent. PANEL: D. L. Neve Esq (President), P. N. Dalton Esq & A. Hooton Esq (Vice-Presidents)

Judgment One:

THE TRIBUNAL: The appellant Miss Arunthathy Tambimuttu is a citizen of Sri Lanka aged 25. She appeals to the Tribunal against the determination of an adjudicator (Sir John Cotton), dismissing her appeal against the refusal of the Secretary of State to vary the conditions attached to her leave to be in this country. Miss Tambimuttu arrived in this country in May 1978 in possession of a visitor's entry clearance which had been issued to her in Colombo on the [1979-80] Imm AR 91 authority of the Home Office. Prior to its issue both she and her sponsoring brother (who had been in this country since 1962) had been interviewed by the immigration authorities and had assured them that she merely wanted to spend a holiday here and during that holiday attend her brother's wedding; she would have to return to Sri Lanka in 1979 to resume her education. Miss Tambimuttu further gave the entry clearance officer to understand that her father was in Sri Lanka, and her brother said that her parents would be arranging a marriage for her on her return there. Miss Tambimuttu was admitted for 12 months subject to a condition prohibiting her from taking employment. A month after her admission her father, who had been in this country since 1972, applied for her to be allowed to take employment and reside here permanently; and in June 1978 a firm of London solicitors applied for permission to accept the appellant in their office as a trainee. This was refused on 30 June 1978 in the following terms: "Mr Paulinus Tambimuttu has applied on your behalf for variation of your leave to enter so as to permit you to remain permanently in the United Kingdom as his daughter, but the Secretary of State is not satisfied that you qualify for settlement under any of the Immigration Rules. Furthermore, on 16 June 1978, Nalliah and Co, Solicitors, applied on your behalf for variation of your leave to enter to enable you to take employment as a trainee solicitor, but, when you entered this country, you were made subject to a condition prohibiting you from taking employment". n3 n3 Under para 5 of HC 80 application for variation of leave with a view to employment "are normally to be refused" if made by "people who were admitted subject to a condition prohibiting employment". An appeal against this refusal was lodged, and then later a claim for political asylum was made. This was investigated and refused. Later, on 28 December 1978, the respondent wrote to the appellant's solicitors in the following terms: "I am writing with further reference to the Secretary of State's decision of 30 June 1978 to refuse to revoke or vary Miss Tambimuttu's leave to enter the United Kingdom. The purpose of this letter is to inform you that the Secretary of State has further considered the matter. His decision to refuse Miss Tambimuttu leave to remain is unchanged but he has come to the conclusion that the reasons for his decision, as previously conveyed to her on Form APP 101, are not wholly applicable in her circumstances. The Secretary of State therefore informs you that the reasons why he decided to refuse leave to remain are: Mr Paulinus Tambimuttu has applied on your behalf for variation of your leave to enter so as to permit you to remain permanently in the United Kingdom as his daughter but the Secretary of State is not satisfied that you qualify for settlement under any of the Immigration Rules. Furthermore on 16 June 1978 Nalliah & Co/Solicitors applied on your behalf for variation of your leave to enter to enable you to take employment as a trainee Solicitor but, having regard to the manner in which you gained admission to this country n4 and the facts now available, the Secretary of State is not prepared to extend your stay in the [1979-80] Imm AR 91 United Kingdom notwithstanding any possible approval by the Department of Employment of an offer of training. n4 The appellant's conduct brought her within the 'general considerations' (para 4 of HC 80) affecting the main categories of persons seeking a variation of the limited leave previously given to them. The decision of 9 November 1978 to refuse her application to remain because of the political situation in Sri Lanka remains unchanged. The Secretary of State notes that Miss Tambimuttu has already lodged notice of appeal against the decision, and she may remain in this country pending the outcome of her appeal. Should she wish to withdraw her appeal or amend her grounds of appeal in the light of the foregoing it is open to her to do so. She should address any letter in this respect to the Home Office (Appeals Section), Lunar House, Wellesley Road, Croydon, CR9 2 By." When the appeal went before the adjudicator, he was requested by Mr Riza to determine the appeal upon the basis of the papers before him, which included a letter from Mr Riza claiming that the appeal should be allowed because the Secretary of State had no power to amend the grounds of refusal, as he had purported to do in this case. The adjudicator evidently did not think much of this argument and dismissed the appeal; and the appeal before us has been wholly concerned with this point. Mr Riza has expanded his argument before us and, if we understand him correctly, it can be summarised as follows. The letter of 28 December deleted the reasons originally given for refusing the appellant's application and substituted others. Section 18 of the Immigration Act 1971 and reg 4(1)(a) of the Immigration Appeals (Notices) Regulations 1972 together provide for the giving of written notice of decisions in respect of which there are rights of appeal, and require that the "ground" or "reasons" for the decision in such cases shall be included in the notice given. Section 18(2) refers to the "ground" of refusal; Section 18(1)(b) and reg 4(1)(a) refer to the "reasons" for the decision. Section 18(2) reads in full:

"For the purpose of any proceedings under this Part of this Act a statement included in a notice in pursuance of regulations under this section shall be conclusive of the person by whom and of the ground on which any decision or action was taken."

In view of the wording of this sub-section Mr Riza contends it is not open to the Secretary of State to change the ground upon which any decision is taken. The report of the Franks Committee (Cmnd 218) in July 1957 -- at para 351 -- contains a recommendation that final letters of decision on behalf of a Minister should contain full reasons for the decision. It is clearly unjust for an appellant to be kept in ignorance of the case against him, and if the Home Office is to be allowed to substitute one ground for another (particularly after notice of appeal has been given, as in this case) appellants can be occasioned great expense: they might instruct solicitors who might advise them that they have a good answer to the reasons given for refusal, only to find fresh reasons advanced when they attend a hearing before an adjudicator. In the case of Cooray n5 the Tribunal remarked that it had [1979-80] Imm AR 91 n5 Immigration Officer, Ramsgate v Cooray, [1974] Imm A R 38; TH/2579/73(191) "no doubt that an appellate authority has power to allow amendments to a notice of refusal to be made if they are necessary to arrive at the real question which is in issue". Mr Riza points out that the Tribunal in that case was not referred to s 18(2). It was so referred in the case of Rina Dutta, and held that "this provision creates an irrebuttable evidential presumption. It cannot be claimed by an appellant that the person giving the notice did not do so, nor can it be maintained that the person's ground for his decision was not that stated but something different. It does no more than this". But Mr Riza claims that this case is distinguishable from that of Rina Dutta, because in Rina Dutta's case the amendment to the notice of refusal was simply an amendment of particulars, and not an amendment of the ground of refusal, as he suggests it is in the case which we now have to consider. n6 n6 Rina Dutta v Immigration Officer, London (Heathrow) Airport, TH/40028/79(1455) (unreported). In Rina Dutta's Case the appellant, a married woman aged 31 with no children, when holding a current entry clearance as a visitor issued to her in Calcutta, was refused leave to enter on her arrival at London (Heathrow) Airport: the immigration officer was not satisfied that the appellant intended no more than a visit for the limited period stated by her, and he further stated in his notice refusing leave to enter that her entry clearance "was obtained by misrepresentation", namely that she "told the entry clearance officer that (she) had not worked since leaving college in 1969", yet she told the immigration officer that she was "in employment between 3.8.72 and 8.9.78". The adjudicator at the commencement of the appeal proceedings allowed an amendment to the notice of refusal by the addition of the words "alternatively you hold an entry clearance but there has been a change of circumstances since the issue of entry clearance and this has removed the basis of your claim to admission". The adjudicator acquitted the appellant of employing false representations to obtain her entry clearance -- (there appeared to have been some uncertainty as to whether the appellant thought she had in fact been asked whether she was currently employed at the time of her application in December 1978 and not whether she had ever worked) -- but he found that a change of circumstances had occurred since the issue of the entry clearance, in that two days after she received the entry clearance she had obtained from her former employers a testimonial which ended with the words "We wish her success". The appellant brought this testimonial to this country together with her educational certificates, and the explanation for doing so which she gave the immigration officer at the airport and the adjudicator on her appeal was accepted by neither of them. The adjudicator dismissed her appeal; and the Tribunal confirmed the adjudicator's decision as also his ruling that the amendment of the notice of refusal was properly sought and made. In addition to the remarks on the true interpretation of s 18(2) of the Immigration Act 1971 set out on p 94, the Tribunal expressed its view on the propriety of the amendment allowed by the adjudicator as follows: "The immigration officer refused the appellant entry under her entry clearance because he was satisfied that the basis on which it had been issued [1979-80] Imm AR 91 had disappeared by the time she arrived at Heathrow. That is the essence of the proviso in sub-paras (a) and (b) of para 12 of HC 79. Whether that basis is removed by reason of false representation or concealment of material facts at the time of application for the entry clearance or by reason of subsequent change of circumstances, the ground for not granting entry under the clearance is that the clearance no longer represents a true basis for granting entry. In the present appeal that was the ground of the refusal, and the amendment allowed by the adjudicator was no more than an amendment of the particulars given in support of that ground. Very full particulars of the facts on which the respondent based his refusal are set out in his explanatory statement and the amendment did not have the effect of requiring the appellant to meet allegations for which he was unprepared. Indeed counsel did not, as he doubtless would have done had he felt that the appellant might be prejudiced if he did not have further time to consider the amendment, seek an adjournment for that purpose. Thus in the circumstances of this case the allowance of the amendment did not, in the judgment of the Tribunal, constitute a breach of any principle of natural justice." In the case of Ekrem Mehmet n7, heard by the Divisional Court on 10 October 1977, it was held that where the ground of deportation specified in the notice was s 3(5)(c) of the Immigration Act 1971 it was not open to the Secretary of State to change horses halfway and proceed under s 3(5)(a) when no case at all had been developed under that paragraph. Such an amendment would go beyond the amendment of a pleading. Mr Riza claims that that is the position in the case now before us. n7 R v Immigration Appeal Tribunal, ex p Ekrem Mehmet, (QBD), [1977] Imm A R 56. In reply, Mr Hunter submits that the decision in Rina Dutta n6 was perfectly correct. Section 19(1)(a)(i) requires an adjudicator to allow an appeal "if he considers that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case". If he is to perform his function in accordance with this section he cannot be prevented from doing so by reason of his inability to allow an amendment of a notice of refusal. Ekrem Mehmet n7 was decided as it was because the amendment applied for altered the whole legal basis of the proceedings and for the decision appealed against. In his submission the word "ground" in s 18(2) means "legal basis" -- as opposed to the reasons for the decision taken upon that ground. n7 R v Immigration Appeal Tribunal, ex p Ekrem Mehmet, (QBD), [1977] Imm A R 56. We have considered these arguments with concern because the point involves a question of general procedure. In our view it is not possible to lay down any hard and fast rule applicable to every case. However, we expressly approve of the remarks of the Tribunal in Rina Dutta regarding s 18(2) of the Act n8. Nevertheless we take Mr Riza's point relating to the desirability of appellants knowing what the case against them is. It seems to us that whether or not any proposed amendment should be allowed must be a matter of degree. If the proposed amendment, as in the case of Ekrem Mehmet, n7 completely alters the basis of the proceedings upon which the decision appealed against was taken, it should clearly be refused. If on the other hand it is more in the nature of amplification, correction or clarification of the original notice, it should [1979-80] Imm AR 91 be allowed. The appellant must be given notice of the amendment, so that he is not taken by surprise. If need be an adjournment should be granted. One cannot expect Home Office executive officers to be masters of the art of pleading. In coming to a decision on this basis it is clearly necessary to decide whether the proposed amendment is an amendment of the grounds (or legal basis) for the decision appealed against, or an amendment of the reasons by virtue of which the decision upon those grounds has been reached. In cases relating to a refusal to vary the conditions attached to an appellant's leave to be in this country, the ground on which the refusal to vary is reached is that the appellant has not satisfied the requirements of the immigration rules relevant to the variation sought. Everything else is particulars or reasons. n7 R v Immigration Appeal Tribunal, ex p Ekrem Mehmet, (QBD), [1977] Imm A R 56. n8 Page 94, ante, and see footnote 6. In the instant case the refusal of the 30 June was expressed to be on the basis that the appellant did not qualify for settlement under any immigration rule, and as regards variation of her leave, that she had been admitted subject to a condition prohibiting her from taking employment. This was of itself no bar, because the Home Office had a discretion (under para 16 of HC 80) to refer the matter to the Department of Employment. n9 The later refusal of 28 December made it clear that the Home Office were not prepared to refer it in view of the appellant's behaviour. n9 Paragraph 16 provides that "Visitors and students may be granted extensions to stay as trainees if the Department of Employment consider the offer of training to be satisfactory: ...". We consider that this was no more than a clarification and amplification of the original reasons for refusal. In our opinion it was implicit in the original notice that the Home Office were not prepared to refer the matter to the Department of Employment, and the second notice simply gave details of why they were not so prepared n10. This being so, we consider that the amendment was properly allowed by the adjudicator. n10 i.e. because of the manner in which she obtained an entry certificate as a visitor. Refusal for this reason was possible by reason of the 'general considerations' in para 4 of HC 80.

DISPOSITION:

Appeal dismissed.

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