Marspan Tusin v. Secretary of State for the Home Department

Marspan Tusin (Appellant) v The Secretary of State for the Home Department

Immigration Appeal Tribunal

[1984] Imm AR 42

Hearing Date: 14 March 1984

14 March 1984

Index Terms:

Jurisdiction -- Diplomatic privilege -- Application for as "Member of the family" and forming "part of the household" of a member of a diplomatic mission refused -- On appeal adjudicator ruled he had no jurisdiction -- Whether adjudicator's decision was appealable -- Whether adjudicator had jurisdiction -- Proof of exemption from provisions of Immigration Act 1971 -- Immigration Act 1971 ss 8(3), 14(1)(2), 20(1) -- Diplomatic Privileges Act 1964 s 4.

Held:

The facts are set out in the determination. Held: (1) The adjudicator's determination that he had no jurisdiction was a determination within S 20(1) of the Immigration Act 1971 and therefore an appeal might lie to the Tribunal. (ii) An appeal would lie under S 14(1) of the Act from a refusal to vary the appellant's leave on the basis that by the terms of S 8(3) he was not exempt from the provisions of the Act as the refusal to vary included a refusal to acknowledge that leave was not required. (iii) The lack of a certificate issued by or under the authority of the Secretary of State for Foreign Affairs as to the appellant's immunity was not conclusive evidence that he was not exempt. (iv) Whether the appellant was entitled to immunity and thus exemption under S 8(3) of the Act was a matter for the adjudicator. K Drabu of the United Kingdom Immigrants Advisory Service for the appellant. V Reynolds for the respondent.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Lila [1978] Imm AR 50, DC. Gupta v Secretary of State for the Home Department [1979-80] Imm AR 52, IAT. R v Immigration Appeal Tribunal ex parte Gupta [Unreported], DC 16 January 1981. PANEL: Professor DC Jackson (Vice-President), Miss PG Liverman, BL Shibko Esq

Judgment One:

THE TRIBUNAL: The appellant, a citizen of Indonesia, appeals against the decision by an adjudicator (Dr DS Pearl) that he had no jurisdiction to consider the appellant's claim that the appellant was exempt from immigration control under the Immigration Act 1971 Section 8(3). The Immigration Act 1971, Section 8(3) reads:

"The provisions of this Act relating to those who are not patrial shall not apply to any prson 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."

The facts The appellant arrived in the United Kingdom on 1 September 1981 and was given leave to enter as a visitor for 2 months. On 12 October 1981 his brother, Mesram Tusin, applied for the appellant's stay to be extended for one year. Mesram Tusin stated that the appellant was a member of his household. On 2 March 1982 the application was refused. The notice of refusal reads:

"An application has been made, on your behalf, for your leave to be varied as the dependant of a person exempt from the provisions of the Immigration Act 1971 relating to those who are not patrial but the Secretary of State is not satisfied that you form part of his household and do not therefore qualify for consideration on this basis. Furthermore the Secretary of State is not satisfied that the duration of your visit would be less than one year."

The appellant appealed on 26 November 1982. The hearing of the appeal was adjourned apparently to give the Home Office an opportunity to contact the Foreign and Commonwealth Office to ask for their opinion on the appellant's status under the Diplomatic Privilege Act 1964, Section 4. A Supplementary Statement (dated 3 March 1983) was submitted and it is as well to set out the relevant paragraphs. After setting the scene the Statement continues: "2. The Home Office accordingly wrote to the Foreign and Commonwealth Office giving the history of the case and pointing out that the appellant's brother was a locally engaged member of Commercial Department of the Indonesian Embassy who had arrived in the United Kingdom on 17 January 1977 and had been recruited by the Embassy in 1980 when he was here as a student. 3. The Foreign and Commonwealth Office have advised the Home Office that as a locally engaged member of the staff of the Embassy who is being treated as a permanent resident of the United Kingdom for the purposes of the Diplomatic Privileges Act 1964, the appellant's brother does not enjoy privileges or immunity. If the Foreign and Commonwealth Office were to issue a certificate under section 4 of the Diplomatic Privileges Act 1964 it would merely confirm his status. The Embassy had said that the appellant was still living with his brother but they did not know what his future intentions were. It is the practice of the Foreign and Commonwealth Office to treat as members of the family only the spouse and minor children, unless in special circumstances the Foreign and Commonwealth Office extend the definition to other relatives. From the information provided no such special circumstances appear to exist in the present case to justify so regarding the appellant." On the appeal hearing being resumed the adjudicator accepted a submission by the Presenting Officer that no appeal lay from the decision of the Secretary of State. He said: "The opening words of s 8(3) state "the provisions of this Act relating to those who are not patrial shall not apply to any person so long as he is . . .". Thus so long as a person falls within s 8(3), the provisions inter alia of s 14 granting the "right of appeal against conditions" do not apply. If a person does not fall within s 8(3), then s 14(1) could apply. S 14(1) however does not grant a right of appeal to a person who is refused the exemption referred to under s 8(3). Like Mr Patey in Khan, I cannot accept Mrs Bird's argument that "exemption" is a form of "variation". Entitlement to exemption is governed by the Diplomatic Privileges Act 1964. Section 4 of the Diplomatic Privileges Act 1964 states:

"If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact."

A question arises in the present case as to whether or not the appellant is entitled to a privilege or immunity. No certificate has been issued by the Secretary of the FCO, and therefore, it would appear to be conclusive evidence that the privilege granted under s 8(3) is not available to the appellant. The only matter in issue in this case is whether or not the appellant is entitled to immunity under s 8(3). This is a matter wholly within the responsibility of the FCO and I do not believe that the wording of s 14 of the Immigration Act gives any right of appeal against a refusal of the FCO to issue a necessary certificate under s 4 of the 1964 Act. In these circumstances, I uphold the submission made by Mr Gulvin that I have no jurisdiction to consider the appellant's claim that he is exempt from immigration control under s 8(3) of the Act." The issues There are three issues in this appeal: (i) whether the adjudicator's decision is a determination from which an appeal lies to the Tribunal under Immigration Act 1971, S 20(1); (ii) if the answer to (i) is "Yes" whether the adjudicator had jurisdiction to hear the appeal to him under the Immigration Act 1971, S 14; (iii) whether the lack of a certificate under the Diplomatic Privilege Act 1964 is conclusive evidence that the appellant is not exempt from the provisions of the Immigration Act 1971 by virtue of S 8(3) of that Act. (i) Was the adjudicator's decision appealable? The Tribunal's jurisdiction is founded on Immigration Act 1971, S 20. S 20(1) reads:

"20(1) Subject to any requirement of rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator."

Mr Reynolds argued that the adjudicator had decided that he had no power to determine the issue before him and that he did not hear the appeal. He referred us to the decision of the Divisional Court R v IAT ex parte Lila [1978] IAR 50 but that case was concerned with a ruling made by an adjudicator in the course of a hearing. Cantley J delivering the leading judgment said:

"In my view the phrase "his determination thereon" in s 20(1) clearly refers to the determination or decision of the adjudicator on the appeal, either allowing or dismissing it under s 19, and not to an incidental or interlocutory decision arising in the course of an appeal."

Under S 19 an adjudicator is directed (a) to allow an appeal in certain specified circumstances and "(b) in any other case to dismiss an appeal." In this case the appellant appealed from a refusal to vary his leave to remain. In considering this appeal the adjudicator held that he had no jurisdiction to consider the claim for exemption. Such a holding seems to us to terminate the appeal. Otherwise the appeal remains in being with no way of being terminated apart from withdrawal. It follows that in substance the adjudicator has dismissed the appeal -- a conclusion underlined by the fact that there can hardly be a more effective termination than a refusal even to hear the appellant. The Tribunal may therefore hear an appeal under S 20(1) of the Act. (ii) The adjudicator's jurisdiction The adjudicator's jurisdiction in this case is founded on S 14(1) which so far as relevant reads:

"14(1) Subject to the provisions of this Part of this Act, a person who has limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any variation of the leave (whether as regards duration or conditions), or against any refusal to vary it;"

S 14(2) provides:

"14(2) Subject to the provisions of this Part of this Act, a person who, on ceasing to be entitled to an exemption under any provision of section 8 above other than section 8(1), or on ceasing while in the United Kingdom to be patrial, is given a limited leave to remain may appeal to an adjudicator against any provision limiting the duration of the leave or attaching a condition to it;"

Mr Drabu urged upon us, as had been urged unsuccessfully before the adjudicator, that "variation" includes "exemption". He pointed out, as had been mentioned by the adjudicator that in S 3(3) of the Act variation includes removal of any time limit and revocation of conditions. Mr Drabu stressed the consequences of concluding that there was no jurisdiction saying that it would be contrary to the spirit of he legal process set up under the Immigration Act 1971 to leave an appellant claiming the right to be in this country by virtue of S 8(3) solely to the Secretary of State's discretion qualified only by judicial review. He drew an analogy with a person who enters the United Kingdom with limited leave and then seeks to claim that leave is not required because of British citizenship. While an appeal lies from refusal of a certificate of entitlement under S 13(2) this relates to the seeking of entry into the United Kingdom. This appeal is against a refusal to vary leave. In our view the consequence of such a refusal is to maintain the leave and its conditions as they existed. Viewed in this light, we think, a refusal to vary leave includes a refusal to acknowledge that leave is not required. Before the adjudicator the appellant relied on the Tribunal decision in Gupta [1980] IAR 52, a decision quashed by Woolf J in the Divisional Court in a judgment dated 16 January 1981. The adjudicator agreed with the approach of another adjudicator (Mr Patey) in the case of Khan (TH/80368/81): "Like Mr Patey in the Khan case, I do not find that the Gupta decision helps me to determine this preliminary issue. The problem was not placed before the Judge in that case, and in any event that case was one relating to a decision to deport. As Mr Patey said in Khan "if that appellant was exempt from the provisions of the Immigration Act as a member of a diplomatic household in terms of S 8(3), the Secretary of State could have no power to deport him and the appeal would be allowed". However, the problem before us did surface before the Tribunal in Gupta. In that case the appellant (who was under threat of deportation) took the point that exemption under S 8(3) was a matter for the Foreign and Commonwealth Office. The substantive issue in Gupta is similar to that in the case before us in being whether the appellant is a member of the household of a person entitled to immunity under the Diplomatic Privilege Act 1964. The Tribunal and the Divisional Court decided for themselves whether she was (although reaching different conclusions). In Gupta the appellant's case was that the Secretary of State had no power to deport her as she was exempt from the deportation provisions. In this case the appellant is arguing in effect that the Secretary of State has no power to refuse to vary his leave as he is exempt. In Gupta, as the Tribunal said, the appellant exercised her right (under S 15(1)(a)) to appeal against the decision to make a deportation order. In this case the appellant exercised his right (under S 14(1)) to appeal against a refusal to vary leave. In both cases the appellant is saying that the Secretary of State had no power to act as he did under the Immigration Act 1971 as the appellant is exempt from the provisions conferring the power. We are fortified in reaching the conclusion that an appeal lies under S 14(1) by the thought that otherwise a British citizen may be debarred from access to the appellate authorities in the circumstances outlined by Mr Drabu. Further if, as Gupta necessarily implies, the exemption provisions can be considered in deportation proceedings, it makes no sense to exclude consideration of the provisions in the appellate process in the context of leave to remain. If they were excluded the curious result would be that the appellant in this case would be precluded from pleading exemption in relation to leave to remain but, through reliance on the exemption, could establish that deportation was not permitted. (iii) Proof of exemption within S 8(3) -- the effect of the Diplomatic Privilege Act 1964, S 4

"If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact."

On this point the adjudicator held that as no certificate had been issued by the Foreign and Commonwealth Office this was conclusive evidence that the appellant was not exempt. With the greatest respect this appears to stand S 4 on its head, for it provides that a certificate is conclusive evidence of a relevant fact. It does not cover the circumstance of the lack of a certificate. The adjudicator's view is contrary to Gupta. The consequences of a lack of a certificate cannot differ because of the nature of proceedings (deportation or leave to remain). In Gupta, as we have said, both Woolf J and the Tribunal had no hesitation in enquiring into the claim to immunity. Such a course was also followed in 1983 in the Tribunal cases of Kardiah (2699), Diaz (2684) and Argame (3020). In the case of Qureshi (2829) the Tribunal held specifically that, lacking a certificate, the question of entitlement to immunity under S 8(3) was for the Tribunal. It follows that, initially it is for the adjudicator. Summary To summarise, in our view: (i) the adjudicator's determination holding that he had no jurisdiction was a "determination" within the Immigration Act, S 20(1), in relation to which an appeal may lie to the Tribunal; (ii) an appeal will lie under the Immigration Act, S 14(1) from the refusal to vary the appellant's leave on the basis that by the terms of S 8(3) he was not exempt from provisions of the Act 1971 lacking a relevant certificate made under the Diplomatic Privileges Act 1964; (iii) whether the appellant is entitled to immunity and hence exemption under S 8(3) is a matter for the adjudicator. The appeal is allowed. The case is remitted for hearing to an adjudicator other than Dr DS Pearl.

DISPOSITION:

Appeal allowed accordingly.