Azhar Karim Khan and 3 Others v. Secretary of State for the Home Department

Immigration Appeal Tribunal

[1982] Imm AR 176

Hearing Date: 15 February 1983

15 February 1983

Index Terms:

Indefinite leave to remain -- Granted appellants on their arrival when first appellant posted to Bangladesh High Commission and had entry clearance stamped "exempt" -- Whether leave to be in United Kingdom lapsed through short absence abroad taken after first appellant had retired from Bangladesh High Commission -- Whether on return to United Kingdom within 2 years they should be treated as returning residents -- Immigration Act 1971 s 88(3)(5).

Held:

The appellants, father, mother and 2 children, all citizens of Bangladesh, arrived with entry clearances on 8 April 1975. Mr Khan had been posted to the Bangladesh High Commission and all four were granted entry for an indefinite period. Mr & Mrs Khan spent a week on the continent and on their return he informed the Immigration Officer that he had retired from the Bangladesh High Commission. He said that he and his family intended staying in the United Kingdom indefinitely. However they were only admitted for one month as visitors and a subsequent application for indefinite leave to remain was refused on 29 October 1981; the present matter arose from the dismissal by an adjudicator of their appeal against that decision. Held: (i) Appellants' leave to be in the United Kingdom lapsed when they left. (ii) On their returning to the United Kingdom within 2 years they were returning residents, and entitled to admission as such.

Cases referred to in the Judgment:

Ram 1979 1 All ER 687. Qazi TH/58111/81 (2513) Coomasaru CA 15.10.1982.

Counsel:

Miss J. Beale for the appellants. D. Massey for the respondent. PANEL: G. W. Farmer Esq (Vice-President), A. W. Lockwood Esq, T. Neil Esq

Judgment One:

THE TRIBUNAL: The appellants, citizens of Bangladesh, appeal to the Tribunal against the determination of an adjudicator (Mr R. E. Maddison) dismissing their appeal against the refusal by the Secretary of State on 29 October 1981 to vary their leave to remain in this country. Miss J. Beale instructed by Lucien A. Isaacs and Company appeared for the appellants and Mr D Massey for the respondent. The grounds of appeal are as follows: "1. The Adjudicator erred in law in holding that the stamp put in the First Appellant's passport on 8 April 1975 granting him indefinite leave to enter was invalid. 2. On the true construction of the Immigration Act 1971 and/or Rule 56 of HC 394, at all material times the Appellants had, alternatively were entitled to, indefinite leave to remain in the United Kingdom." The first appellant, Mr A. K. Khan, is the husband of the second appellant. The other appellants are their children. From 1952 to 1981 Mr Khan was a member of the Bangladesh Foreign Service. In 1975 he was posted to London. Before taking up his post he informed the British High Commission in Dacca of his appointment. As a result an entry certificate stamp marked "exempt" was placed in his passport. The four appellants travelled together to London and arrived on 8 April 1975. It is common ground that each of the four appellants had a right to enter the country by virtue of Section 8(3) of the Immigration Act 1971 which reads:

"8(3) The provisions of this Act relating to those who are not patrial shall not apply to any person so long as he is a member of a mission (within the meaning of the Diplomatic Privileges Act 1964), a person who is a member of the family and forms part of the household of such a member, or a person otherwise entitled to the like immunity from jurisdiction as is conferred by that Act on a diplomatic agent."

Mr A. K. Khan was asked by an immigration officer how long he proposed to remain in this country. He replied that he did not know as it depended on his posting. The immigration officer then stamped his passport "given leave to enter the United Kingdom for an indefinite period". Miss Beale informed us that Mrs Khan and the elder child had separate passports and that on each of the three passports, there is an identical entry. It appears that the name of the youngest appellant was included on his mother's passport. Miss Beale who also appeared before the adjudicator relied on the judgment of Ram 1979 1 All ER 687 for the proposition that when indefinite leave is granted by mistake, in the absence of fraud or dishonesty on the part of the applicant, it could not be said that the immigration officer had no authority to grant. it. There has at no stage been any suggestion of fraud or dishonesty on the part of either appellant in this case. The adjudicator dealt with her submission in the following manner: "14. With great respect to Miss Beale, I cannot accept this line of argument. In my view none of the provisions of the 1971 Act can apply to any person who has been taken outside the ambit of the Act. Every prospective right or permission to which a non patrial may aspire in this context is a creature of statute that exists only by virtue of the Act. A person who falls into the categories set out in s 8(3) is a 'person to whom' the 'provision of this Act... shall not apply'. If, as in this case, the stamp were put into Mr Khan's passport at a time when he was already a person to whom the Act did not apply, then the stamp gives him no benefit; that benefit being one that can only arise through the operation of the Act or rules made under it. The wording of s 8(5) in my view endorses that conclusion. That sub-section relates to persons to whom the Act does apply. In that condition they are then given a benefit under the Act. Circumstances subsequent remove them from the operation of the Act: the benefit is put in limbo: it revives, on its original terms, if and when they emerge from exclusion from the Act. They were however eligible for the benefit, being then subject to the Act, when it was given to them. It does not follow in my view that because the Act provides for that eventuality, the Act by implication allows for the exact opposite, that is to say, the acquisition of a benefit after the individual has fallen into a category to which the entire Act does not apply. Indeed, on the principle of Inclusio unius est exclusio alterius, the restriction of s 8(5) to a limited class of persons, indicates that the section does not apply to persons already excluded by s 8(3). 15. It may also be material that Immigration Officers derive all their authority from the Act and it could be argued that an Immigration Officer cannot exercise such authority in respect of a person to whom the Act does not apply. That is a point not exactly the same as that considered by the Master of the Rolls in Reg. v. Home Secretary ex parte Choudhary (1978) 1. WLR at 1811, when he expressed the view that an Immigration Officer has not authority to stamp the passport of an illegal entrant. However it is difficult to see how the lawful authority of an Immigration Officer can be exercised in relation to persons excluded from the operation of the law. 16. In any event I consider Mr Khan's case to be distinguishable from that of Ram because Mr Ram was subject to the Act, and Mr Khan was not, at the material time. 17. It follows that I do not consider that the stamp put on to Mr Khan's passport on 8 April 1975 had any validity. He has no claim, in my view, on the basis of that stamp, to remain in the United Kingdom after his exempt status derived from s 8(3) of the Act had come to an end." This point was recently considered by the Tribunal in the appeal of Naheed Shamin Qazi TH/85111/81(2513). In the course of his determination the President set out Section 8(3) of the Immigration Act 1971 and then continued: "In view of this section, Mr Hunter argues, the provisions of the Act do not give an immigration officer any powers (under Section 4 or otherwise) in relation to persons who are exempt by virtue of Section 8(3). We do not construe Section 8(3) in this way. Although clearly it exempts persons in the position of the respondent from immigration control, we do not read it as removing from immigration officers the powers conferred upon them by Section 4. This being so, it is our opinion that the indefinite leave granted to the respondent was valid leave. In so finding we appreciate that we are differing from the Tribunals's determination in the case of Rajmal Jain, but in that case the question was not conclusive of the appeal which was an appeal against deportation and depended upon the question of the public interest. For these reasons we consider that the adjudicator properly allowed the respondent's appeal. We have found the point a difficult one and, as Widgery LCJ mentioned in the Ram case, this is a fact developing branch of the law. We dismiss the appeal, but would welcome the matter being taken further so that more authoritative guidance might be forthcoming." We accept the reasoning in that determination but would record that this Tribunal has also found the point a difficult one. Eventually Mr Khan decided to retire from Bangladesh High Commission. His retirement was effective from 25 August 1981. However he was given "leave preparatory to retirement" and accordingly stopped working at the High Commission on 25 February 1981. In the adjudicator's view no evidence had been put before him which settled the relevant date of Mr Khan's retirement one way or the other. In his opinion this was not a matter of consequence in view of the other findings he had made. Mr and Mrs Khan spent a week on the continent and returned on 19 August 1981 when they were interviewed by an immigration officer. Mr Khan said that he had taken early retirement from the Bangladesh High Commission and that his last day of service had been 24 February 1981. He said he had been working as a waiter in an Indian Restaurant in London but that he wished to be admitted in order to take up a post with the Sonali Bank, which was the National Bank of Bangladesh. He added that he and his family intended to remain in the United Kingdom indefinitely and were entitled to do so because of previous endorsements in their passports. Mr and Mrs Khan were admitted for one month as visitors. On 10 September 1981 Messrs Lucien A. Isaacs and Company applied on the appellants' behalf for indefinite leave to remain. This was refused on 29 October 1981. Miss Beale and Mr Massey addressed us on the implications of the events which took place on 19 August 1981. We have considered their submissions with care. In our opinion on any analysis Mr and Mrs Khan's leave to be in this country lapsed when they left (see Ram p 689a). In reality on their return they were applying to be treated as returning residents. Each of them had had their abode in this country for a number of years. Subsequent to Mr Khan's employment at the High Commission each of them had worked here. Their children were being educated in state schools. They had adopted this country voluntarily and for settled purposes as part of the regular order of their lives during that period. It follows that each of them was ordinarily resident in the United Kingdom immediately before they left for the continent. They returned within two years. There is no suggestion that they had received assistance from public funds towards the cost of leaving this country. In our judgment, since they had been settled here and were returning within two years they were entitled to and should have been admitted as returning residents. We are aware that Mr and Mrs Khan were admitted as visitors and subsequently sought indefinite leave. However they made it plain to the immigration officer, who interviewed them on 19 August 1981 that they wished to be allowed entry on the basis of persons who are settled here. In those circumstances, bearing in mind the decision in Coomasaru v Immigration Appeal Tribunal CA 15 October 1982, we are entitled to find and do find that Mr and Mrs Khan were returning residents. The children did not leave this country and consequently their indefinite leave to be here did not lapse. For the reasons we have given we therefore allow the appeal of each the four appellants.

DISPOSITION:

All four appeals allowed.

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