Paet v. Secretary of State for the Home Department

PAET v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/49987/79(1826)

Immigration Appeal Tribunal

[1979-80] Imm AR 185

Hearing Date: 27 August 1980

27 August 1980

Index Terms:

Estoppel -- Application for variation of conditions of entry -- Employment -- Enquiry by potential employer on telephone to Home Office -- Assurance (allegedly) given by immigration official that application would be favourably considered -- Reference by Home Office to Department of Employment -- Refusal of application on advice of Department of Employment -- Applicant acting to her detriment in reliance on assurance (allegedly) given -- Whether estoppel could operate against the Secretary of State in matters relating to immigration control -- Whether official assurance no more than an expression of intention in no way binding on Secretary of State -- Principle enunciated in Rederiaktiebolaget Amphitrite v R, [1921] All ER Rep. 542 -- Power to withdraw alien's permission to be in this country an executive necessity in proper exercise of immigration control -- (HC 82, para 5).

Held:

The appellant was a citizen of the Philippines who had been admitted to this country from Hong Kong for 3 months on an entry certificate endorsed 'accompanying employer'. Before the 3 months expired another (potential) employer applied to the Home Office for permission to employ the appellant in a domestic capacity. The application was referred to the Department of Employment, and on that Department advising the Home Office that it was unable to approve the employment the Secretary of State, acting under para 5 of HC 82, refused the application. On her appeal to an adjudicator it was submitted for the appellant that the Secretary of State was estopped from refusing the application because one of his officers had given assurances on the telephone to the appellant's potential employer that there would be no difficulty about the application receiving favourable consideration, indeed receiving approval; the appellant had acted on these assurances to her detriment in that she had not returned to Hong Kong with her former employer and had in consequence forfeited her permit to work there. The adjudicator held that there could be no question of estoppel and he affirmed the decision of the Secretary of State under para 5 of HC 82, following the decision of the Court of Appeal in Pearson v Immigration Appeal Tribunal, [1978] Imm. A.R. 212. On appeal to the Tribunal the only issue was estoppel, and it was submitted that the authorities showed that estoppel could operate against the Crown. Held, dismissing the appeal: (i) Even if any assurances had been given to the appellant's potential employer (and the evidence on this was disputed), estoppel could not operate in the way suggested against the Secretary of State in immigration matters. [1979-80] Imm AR 185 Per curiam: Although estoppel could operate against the Crown in certain cases -- as in those cited, those cases were distinguishable from cases involving the exercise of immigration control; in each of the cases cited the decision appealed was a 'once and for all' decision (see p 187, post), whereas decisions in immigration cases related to a continuing state of affairs, and it was an executive necessity for the proper exercise of immigration control that the Secretary of State should have the power to withdraw a permission given to an alien to be in this country. Alternatively (ii), if any assurance was given it amounted to no more than an expression of intention and, applying the principle enunciated by Rowlatt J in Rederiaktiebolaget Amphitrite v R ([1921] All ER Rep. 542), the Government could not "fetter its future executive action, which must necessarily be determined by the needs of the community".

Counsel:

Miss J. H. Beale, counsel for the appellant. D. A. Birks for the respondent. PANEL: D. L. Neve Esq (President), Miss P. G. Liverman, A. S. Newman Esq

Judgment One:

THE TRIBUNAL: The appellant in this case is a Filipino lady. Application was made on her behalf for the conditions attached to her permission to be in this country to be varied so as to allow her to remain here for an extended period in employment. The application was refused. She appealed against the refusal to an adjudicator (Mr W. E. M. Dawson), who orally dismissed the appeal on 28 January last. She thus had 14 days from that date in which to apply to the Tribunal for leave to appeal against the adjudicator's determination. [The Tribunal then referred to the fact that it had mistakenly granted leave to appeal in this case when it had no jurisdiction to do so, in that unknown to the Tribunal the application for leave to appeal had not been made timeously by reason of a clerical mistake for which neither the appellant nor her solicitors were to blame. The Tribunal had, however, decided to hear argument and evidence (so as to avoid any injustice) and would 'indicate' what its decision would have been had it had jurisdiction, 'in the hope that the Secretary of State would act upon it'.] With one important exception the facts of this case are not in dispute. The appellant came to this country on 13 July 1978 in possession of entry clearance endorsed 'Accompanying Employer' and was admitted for three months. On 31 August application was received from a Mr Sydney Cowan (who was not the employer with whom she had arrived in this country) for permission to employ the appellant in a domestic capacity. This application was referred to the Department of Employment, who advised that they were unable to approve the proposed employment. Her application was consequently refused by the Secretary of State on 15 January 1979, under paragraph 5 of HC 82. When the appeal went before the adjudicator he held that, following a line of cases the last of which was the decision of the Court of Appeal in Pearson v Immigration Appeal Tribunal n1, the refusal by the Department of Employment was an end to the matter and dismissed the appeal. It had been argued before him [1979-80] Imm AR 185 that the Secretary of State was estopped from refusing the application in view of assurances which had been given by one of his officers to Mr Cowan, but the adjudicator held that there could be no question of estoppel. n1 [1978] Imm A R 212. It is that question with which we are here concerned, and this is where the evidence is in dispute. Mr Cowan has given evidence that he made enquiries as to the position both from the Home Office and the Department of Employment and was given assurances on the telephone that if he made the necessary application there would be no difficulty and it would be favourably considered. Acting upon these assurances he engaged the appellant. He would not have done so had he thought that there was any prospect of the application being refused, because by remaining in this country the appellant was forfeiting the chance of continued employment in Hong Kong (whence she had arrived with her previous employers, who had come to this country on leave for three months), her employment voucher for Hong Kong having expired. It is those circumstances upon which the appellant relies as giving rise to an estoppel. Mr Birks did not accept that such categorical assurances as were alleged by Me Cowan had ever been give, as they would have been contrary to all instructions to Home Office staff answering telephone enquiries. Mr Cowan in evidence told us that he could not remember precisely the exact words which had been used, since it had all happened two years ago, but he had been given to understand that there would be no difficulty in approving the application. If he had not been so informed he would never have acted as he did, to the detriment of the appellant's interests. Miss Beale referred us to several cases to support the proposition that in such circumstances estoppel could operate against the Crown -- notably the cases of Robertson v Minister of Pensions n2, Lever (Finance) Ltd v Westminster Corporation n3 and HTV Ltd v Price Commission n4 and submitted that the principles therein established should in this case estop the Secretary of State from refusing the appellant's application in the circumstances of this case. n2 [1948] 1 KB 227; [1948] 2 All ER 767. n3 [1970] 3 All ER 496, CA. n4 [1976] ICR 170. We first have to consider whether estoppel can operate in the way suggested against the Secretary of State in immigration matters. It appears to us that cases involving the exercise of immigration control can be distinguished from those cited by Miss Beale, and for this reason: in each of those cases the decision appealed against was a "once and for all" decision -- in one case, the decision not to grant a pension, in another the decision to refuse planning permission, and in another whether or not to impose a levy. In immigration cases, however, the decisions appealed against are not "once and for all" decisions, they relate to a continuing state of affairs. An alien present in this country by virtue of the Secretary of State's permission is liable (subject to appeal) to have such permission withdrawn at any time, and in the opinion of the Tribunal it is an executive necessity for the proper exercise of immigration control that the Secretary of State should have the power so to withdraw it. [1979-80] Imm AR 185 Indeed such power is expressly provided by s 3(3)(a) of the Immigration Act 1971 n5. If the Secretary of State has such power -- so to speak, to change his mind at any time -- as we find that he has, the doctrine of estoppel cannot operate against him. Miss Beale's submission must consequently fail on this ground. n5 Section 3(3)(a) is in the following terms: 'In the case of a limited leave to enter or remain in the United Kingdom, -- (a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply". It may also be noted that persons who are not partial are made liable to deportation in the circumstances set out in s 3(5) of the Immigration Act 1971. If we are wrong in so finding, however, in our view her submission must also fail because we do not consider that any assurance given was sufficient to establish an estoppel, even if the doctrine applied. The assurance in our judgment amounted to no more than an expression of intention. In the case of Rederiaktiebolaget Amphitrite v R n6 ROWLATT J said: n6 [1921] 3 KB 500; [1921] All ER Rep 542.

"In those circumstances, I have to consider whether there was a contract at all. I have to consider whether the letter which I have just read was a contract at all. I have not to consider whether there was anything of which complaint might be made outside a court, that is to say, whether what the government did was morally wrong or arbitrary. That would be altogether outside my province. All that I have to decide is whether there was an enforceable contract. I am of opinion that there was not. No doubt, the government can bind itself, through its officers, by a commercial contract, and, if it does so, it must perform it like anybody else or pay damages for the breach. But there was no commercial contract in this case. It was an arrangement whereby the government purported to give an assurance with regard to what its executive action would be in the future in relation to a particular ship in the event of her coming to this country with a particular kind of cargo. That is, to my mind, not a contract for the breach of which damages can be sued for in a court of law. It was merely an expression of intention to act in a particular way in a certain event. My main reason for so thinking is that it is not competent for the government to fetter its future executive action, which must necessarily be determined by the needs of the community when the question arises. It cannot by contract hamper its freedom of action in matters which concern the welfare of the State."

In our view the principle enunciated by ROWLATT J applies to this case. For these reasons, if we had had jurisdiction to determine this appeal, we would have dismissed it. But, for the reasons given in Mr Birks' preliminary submission, we must find that we have no such jurisdiction.

SOLICITORS:

Pritchard Englefield & Tobin, London W1.