Theori v. Secretary of State for the Home Department
- Author: Immigration Appeal Tribunal
- Document source:
-
Date:
10 March 1980
THEORI v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/49598/79(1737)
Immigration Appeal Tribunal
[1979-80] Imm AR 126
Hearing Date: 10 March 1980
10 March 1980
Index Terms:
"Limited leave to enter or remain" -- Letter from immigration authority extending person's stay after failure of appeals against a refusal of extension -- Letter extended stay till named date in order to enable person to complete current medical treatment -- Whether letter (as worded) was a notice granting a "limited leave" till named date or was simply an 'indulgence' on compassionate grounds -- Whether further application for variation made before the named date should on its refusal have carried a right of appeal -- Whether decision to deport person as overstayer was unlawful when notified after the refusal of that further application -- Immigration Act 1971, ss 4(1), 14(1), 33(1) -- Immigration Appeals (Notices) Regulations 1972, reg 4(1)(c) .
Deportation -- Consideration of the merits -- Overstayer -- Cypriot citizen single woman aged 34 -- Facts which showed that compassionate circumstances did not outweigh the public interest that she be deported -- Immigration Act 1971, s 3(5)(a) -- HC 80, para 38.
Held:
The appellant ('Miss T') was a citizen of Cyprus, born in 1946. In September 1973 she was granted leave to enter the United Kingdom for one month as a visitor. A late application to extend her stay as a visitor under the Immigration rules was refused, but in view of the disturbed political situation in Cyprus her stay was successively extended to April 1976. Further applications for extension as a visitor and finally as a student were refused under the relevant immigration rules, and appeals to the appellate authority were unsuccessful. On learning, however, that Miss T was receiving medical treatment for a hip ailment the Home Office on 29 August 1978 wrote a letter to Miss T's representative informing him that although Miss T had "no further claim to remain in the United Kingdom" it had been decided that "in view of her current medical treatment" no action would be taken to enforce her departure, provided she left the country by 30 September 1978; the letter stated further that should Miss T remain after 30 September she might render herself liable to prosecution under the Immigration Act 1971 n1. On 20 September 1978 an application for indefinite leave n2 to remain was made on Miss T's behalf; this was refused on 15 November 1978 and the notice of refusal stated that Miss T had no right of appeal because her "limited leave" had expired; the notice also reminded Miss T that she should leave the United Kingdom without delay or she might be prosecuted and she would be liable to deportation. Miss T did not leave, and on 15 May 1979 notice of the Secretary of State's decision to deport her under s 3(5)(a) of the Immigration Act 1971 was served. n1 i.e. under s 24(1)(b). [1979-80] Imm AR 126 n2 Section 33(1) of the 1971 Act provides that "for purposes of this Act, except in so far as the context otherwise requires -- 'limited leave' and 'indefinite leave' mean respectively leave under this Act to enter or remain in the United Kingdom which is, and one which is not, limited as to duration." On Miss T's appeal to an adjudicator and, from the adjudicator's dismissal of her appeal, to the Tribunal, it was contended by her representative that the Home Office letter of 29 August 1978 was a notice in writing under s 4(1) of the Immigration Act 1971, giving Miss T a "limited leave to remain" in the United Kingdom till 30 September 1978, and accordingly when her application of 20 September (for indefinite leave to remain) was refused on 15 November 1978 she had a right of appeal under s 14(1) of the Act, and she was not liable to deportation as an overstayer. Held: (i) The Home Office letter of 29 August 1978 did not grant Miss T a "limited leave" but was 'simply an indulgence extended to her on compassionate grounds'; Words of LORD DENNING MR in R v Immigration Appeal Adjudicator, ex p Bhanji, [1977] Imm A R 89 at p 91, applied. R v Immigration Appeal Tribunal, ex p Ahluwalia (DC) [1979-80] Imm A R 1, and Secretary of State for the Home Department v Esteve -- Varea (TH/42416/79(1706), unreported), not followed. (ii) The decision to deport Miss T under s 3(5)(a) of the Act was a proper one and (approving the adjudicator's findings under para 38 of HC 80) the public interest that she be deported as an overstayer outweighed such compassionate circumstances as existed in her case.Counsel:
A. Riza of the Joint Council for the Welfare of Immigrants, for the appellant. D. Massey for the respondent. PANEL: P. N. Dalton Esq (Vice-President), Sir John Rankine, Mrs B. WarburtonJudgment One:
THE TRIBUNAL: This is an appeal against the determination of an adjudicator, Mr J. K. Brownlees, in which he dismissed the appellant's appeal against the decision to make a deportation order against her under s 3(5)(a) of the Immigration Act 1971, and give directions for her removal to Cyprus. The appellant is a citizen of Cyprus born on 5 February 1946, and the history of her stay in this country is conveniently set out in the Home Office statement as follows: "The appellant arrived on 11 September 1973 when she was granted leave to enter for one month as a visitor. Following the expiry of her leave the appellant applied for a visit extension; this, however, was refused on 28 June 1974. The appellant did not embark or appeal against this decision, but in view of the prevailing situation in Cyprus her stay was subsequently extended on successive occasions to 14 April 1976. [1979-80] Imm AR 126 On 2 December 1976 the Secretary of State refused a further application for a 6-month extension as he was not satisfied that the appellant intended to leave the United Kingdom at the end of that period. The appellant appealed against this decision and her appeal was dismissed by an adjudicator on 1 July 1977 (TH/14109/77 refers). However, following the adjudicator's recommendation, on 5 August 1977 the appellant's solicitors were informed that no steps would be taken to enforce her departure before 30 September 1977. On 28 September 1977 the appellant's solicitors applied on her behalf for a student extension. This was refused by the Secretary of State on 16 December 1977 as he could not be satisfied that the appellant was a genuine student. The appellant's subsequent appeal was adjudged to be out of time by an adjudicator on 17 April 1978 (TH/24423/78 refers) whilst on 31 May 1978 leave to appeal to the Tribunal was refused. Evidence was then produced to show that the appellant was receiving medical treatment, and on 29 August 1978 Mr T. Papas, her representative, was informed that no action would be taken to enforce her departure, provided that she left the United Kingdom on or before 30 September 1978. The appellant did not embark, and on 20 September 1978 an application for indefinite leave to remain was made. This was refused without the right of appeal on 15 November 1978, and at the same time Mr Papas was informed that the appellant should leave the United Kingdom and that failure to do so could result in prosecution, and on 15 January 1979 Mr Papas was again told that she should leave. The appellant, however, did not embark and continued to remain without authority. In view of the above, and taking into account all the relevant factors, the Secretary of State was satisfied that the appellant had no claim to remain in the United Kingdom and had, in fact, been treated extremely generously with regard to her stay in the United Kingdom. In view of her past immigration history and the need to maintain an effective immigration control he decided to make a deportation order under s 3(5)(a) of the Immigration Act 1971 and to give directions for her removal to Cyprus. Notice of the Secretary of State's decision was served on 15 May 1979." The appellant appealed to an adjudicator, Mr J. K. Brownlees, and the grounds of appeal put forward by Mr Riza, who appeared on her behalf, were: "1. The Secretary of State's decision was not in accordance with the Immigration Law as the appellant had leave to be here at the relevant time by virtue of the Variation of Leave Order 1976. 2. There are compassionate circumstances in this case not mentioned in the explanatory statement." Mr Riza, the adjudicator said in his determination, argued in considerable detail that the Home Office letter of 29 August 1978 to Mr Papas was a notice in writing under s 1 of the Immigration Act 1971, granting the appellant leave to stay until 30 September 1978. Therefore the Secretary of State's refusal on 15 November 1978 was void, since, it was not in the required form. Mr Alcock for the respondent, cited the judgment of Lord Denning MR in ex p Bhanji n3 in support of his contention that the letter of 29 August 1978 was an 'indulgence'. This letter is in the following terms: [1979-80] Imm AR 126 n3 R v Immigration Appeal Tribunal, ex p Bhanji (CA), [1977] Imm A R 89. "Thank you for your letter dated 2 August concerning Miss Leto Yianni Theori's continued stay in this country. I must advise you that following the dismissal of Miss Theori's application for leave to appeal to the Immigration Appeal Tribunal against the Secretary of State's decision to refuse to extend her stay, she has no further claim to remain in the United Kingdom. However, in view of her current medical treatment it has now been decided that providing Miss Theori leaves the United Kingdom on or before the 30 September 1978 no action will be taken to enforce her departure. I would point out that should Miss Theori remain after the 30 September she may render herself liable to prosecution under the Immigration Act 1971. Miss Theori's passport is returned herewith, together with an extra copy of this letter which Miss Theori may care to retain in case her position should be called into question." The adjudicator was satisfied that the letter did not constitute "limited leave to remain" in the United Kingdom as defined in s 33(1) of the Immigration Act 1971. n4 His reasons for coming to this conclusion were the express use of the words "she has no further claim to remain in the United Kingdom" followed by a paragraph stating, as clearly as possible, that no action would be taken to enforce her departure before 30 September 1978 in order to provide her with the opportunity of continuing with her current medical treatment. In the adjudicator's opinion this was simply "an indulgence extended to the appellant on compassionate grounds". The adjudicator found accordingly that the Secretary of State's refusal on 15 November 1978 without right of appeal was valid. n4 For the definition of 'limited' leave, see footnote 2. The adjudicator considered whether or not there were compassionate circumstances which outweighed the public interest. The adjudicator said:"Were the appellant to return to Cyprus it would be, if she so wished, to her parents in the house in which she spent much of her life. Her circumstances there would not be as comfortable as with her sister, here, who also would miss her emotionally and practically about the house, and there would be less chance of congenial employment. But her situation would certainly be no different from her contemporaries who had not left Cyprus and, from the employment angle, possibly better in view of her knowledge of English. I am satisfied on balance, particularly as I consider that the appellant has virtually flouted immigration control, that the public interest considerably outweighs such compassionate circumstances as exist in the present case."
The appellant sought for and obtained leave to appeal on the following grounds. "It is contended that the learned adjudicator was wrong in finding that the Secretary of State's letter of 29 August 1978 did not amount to notice of a limited leave. It is submitted that the instant case can be distinguished from the case of Bhanji in that: [1979-80] Imm AR 126 a) the 'leave' given to the appellant was not in order for her to 'pack her bags and make arrangements for her departure', but in order for her to undergo medical treatment (see para 3 of the respondent's letter). It was therefore not an indulgence. b) In para 4 of the letter, the Secretary of State indicated that the appellant would only render herself liable to prosecution if she remained beyond 30 September 1978. This strongly implied that the respondent was granting a limited leave -- see s 24(1)(b)(i) of the Immigration Act 1971. c) In the last paragraph of the letter, the respondent further indicated that he was giving notice of a leave by attaching an extra copy of his letter 'in case her (the appellant's) position should be called into question'. 2. If the above is true, then the appellant's application of 20 September 1978 was made at a time when she had a leave to remain. It is therefore submitted that the Secretary of State's refusal of 15 November 1978 is null and void because it did not inform her of her right of appeal -- see reg 4(1)(c) (i) of the Immigration Appeals (Notices) Regulations 1972. 3. It is therefore contended that on the date of the Secretary of State's decision to deport the appellant (15 May 1979), the appellant was not liable to deportation under s 3(5)(a) as she had a leave to be here by virtue of s 3(1) of the Variation of Leave Order 1976; her application of 20 September 1978 being still pending and requiring a fresh notice under s 14(1) of the Immigration Act 1971, informing her of her right of appeal in accordance with the mandatory requirements of the Notices Regulations." In opening this appeal Mr Riza said that the appeal concerned two very technical points which nevertheless were valid. He said that the letter of 29 August 1978, which he claimed to be most relevant for the purpose of this appeal, was at best ambiguous but it showed that the appellant would only become liable to prosecution if she stayed on in this country after 30 September 1978. She therefore had leave to remain when she made her application on 20 September 1978, and furthermore the Secretary of State had failed to inform Miss Theori of her right of appeal against the refusal of the application made by Mr Papas. The Tribunal pointed out that this was inaccurate, since, though it might be claimed that she had been misinformed as to her right of appeal, the refusal notice had mentioned an entitlement to appeal under s 14(1) of the Immigration Act 1971, though as her limited leave had expired she had no right of appeal. Three cases were cited to the Tribunal in the course of the argument as to whether the letter of 29 August 1978 granted a limited leave or was, as the adjudicator said, simply an indulgence. In the case of Veena Ahluwalia, n5 Divisional Court, 22 February 1979, the applicant had received a letter from the Home Office dated 21 June 1973 in reply to her application for variation of her leave to remain. In the Home Office letter it is stated -- "Meanwhile this acknowledgement may be regarded as authority for the holder to remain in the United Kingdom pending a decision on any application made for an extension of stay". In his judgment, with which the two other members of the Divisional Court agreed, EVELEIGH LJ said: n5 R v Immigration Appeal Tribunal, ex p Ahluwalia, [1979-80] Imm A R 1. [1979-80] Imm AR 126"... Anyone receiving this letter would conclude that he or she was being granted permission to remain lawfully in the United Kingdom for a period, a period that is to say until a decision was made. It would to my mind be wholly wrong to fault a person remaining in this country on the basis that the word 'leave' had not itself been used... I, therefore, have come to the conclusion that by that communication (of 21 June 1973) this applicant was being granted leave to remain in the United Kingdom."
In the case of Pelegrin Esteve-Varea n6 the appellant had written to the Home Office seeking a further extension of his permitted stay to enable him to work as a self-employed person in the export of goods to Spain. The Home Office replied on 29 June 1972 saying: n6 Secretary of State for the Home Department v Esteve-Varea, TH/42416/79 (1706) (unreported)."With reference to your letter of 2 June, further consideration will be given to your application if you will first be good enough to obtain an extension of the validity of your passport from the Spanish authorities... Your police registration certificate is being retained in this Department while your application is under consideration, and this letter may meanwhile be regarded as authority for you to remain in the United Kingdom pending a decision on your application."
In the determination of the Tribunal it is stated:"The Tribunal cannot, in the light of the decision of the Divisional Court in Ahluwalia, by which it is bound, regard the Home Office letter of 29 June 1972 as a mere indulgence. The wording of the authority given the respondent in the letter of 29 June 1972 'to remain in the United Kingdom pending a decision on your application to remain' is essentially the same as that given in Ahluwalia 'to remain in the United Kingdom pending a decision on any application made for an extension of stay'."
The third case cited was that of Bhanji, and Mr Massey submitted that it was on all fours with the present appeal. In the case of Bhanji, the appellant, a citizen of Tanzania, had applied to have his leave to be in the United Kingdom extended. It was extended once but a subsequent application for a further extension was refused in a notice containing the following words:"For the purpose only of enabling you to make arrangements to leave this country your leave to enter is varied so as to permit you to remain in the United Kingdom until 18 June 1976. No further extension of stay will be granted."
Counsel for the appellant sought to say that Mr Bhanji was given what was called de novo leave by this notice of refusal but LORD DENNING MR after quoting the above words said: n7 n7 R v Immigration Appeal Tribunal, ex p Bhanji [1977] Imm A R 89 at p 91. "In Suthendran's case LORD RUSSELL of KILLOWEN suggested that such a letter might constitute a de novo leave, in which case the applicant might seek to vary that leave and to appeal from it. n8 But I do not so construe the words in the notice. It seems to me that there was only an indulgence extended to him so [1979-80] Imm AR 126 that he could pack his bags and make arrangements for his departure. I know it was said that his 'leave was varied' but it was not varied by an extension of his leave. It was only varied by a permission to remain, not amounting to a leave." n8 Suthendran v Immigration Appeal Tribunal, [1977] AC 359; [1977] Imm A R 44; [1976] 3 All ER 611. In this case Mr Papas had been in correspondence with the Home Office on the appellant's behalf, in the course of which he had stated that she was prevented from travelling due to a severe ailment of her hip (letter of 20 June 1978) but that it was her intention to leave for Cyprus as soon as the private treatment of her hip was over. Mr Papas promised by letter of 2 August 1978 a medical report on 18.8.78 after she had had a second general check up and the Secretary of State's letter of 29 August 1978 was the reply. In our view if ever there was an example of an indulgence extended to an applicant, referred to by LORD DENNING, that was this case, and also in our view the adjudicator correctly described it as "an indulgence extended to the appellant on compassionate grounds". We agree with the adjudicator's findings concerning the compassionate circumstances and indeed Mr Riza said that he did not contend that the appellant was in any way deserving.DISPOSITION:
Appeal dismissed.Disclaimer: Crown Copyright
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