Muhammad Idrish v. Secretary of State for the Home Department

MUHAMMAD IDRISH v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal

[1985] Imm AR 155

Hearing Date: 13 September 1985

13 September 1985

Index Terms:

Deportation -- the ambit of s 14(1) of the Immigration Act 1971 -- whether protection against removal amounts to authorisation within the meaning of paragraph 158 of HC 169 -- whether that protection extends to judicial proceedings other than the appellate process established by the Immigration Act -- whether a person can be in the United Kingdom lawfully without leave but with the authorisation of the Secretary of State -- how the public interest served by the deportation of an overstayer may be weighed against other factors present in a particular case: Immigration Act 1971 Ss 3(5)(a), 14(1): HC 169 paragraphs 154 et seq

Held:

The facts are set out in the determination. Held: 1) The protection against removal embodied in s 14(1) of the Immigration Act 1971 does not amount to authorisation with the meaning of paragraph 158 of HC 169. 2) That statutory protection against removal in s 14(1) relates only to proceedings under the appellate process established by the Immigration Act 1971. 3) It is possible for a person subject to immgration control to be in the United Kingdom lawfully without leave but with authorisation if the Secretary of State so permits. 4) In weighing the public interest served by deporting an individual against the factors prayed in aid in his favour, the appellate authority will be obliged "to assess the public interest in respect of the length and nature of the overstaying relied upon as the basis of the decision to deport".

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Subramaniam [1976] Imm AR 155. Suthendran v Immigration Appeal Tribunal [1977] Imm AR 44. R v Immigration Appeal Adjudicator ex parte Bhanji [1977] Imm AR 89. R v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1984] Imm AR 217 R v Immigration Appeal Tribunal ex parte Ida Sigola (QBD 16 October 1984) unreported. R v Immigration Appeal ex parte Makhan Singh (QBD 17 October 1984) unreported. R v Immigration Appeal Tribunal ex parte Arvindkumar Navsariwalla (QBD 26 June 1985) unreported.

Counsel:

IA Macdonald for the appellant; J Gulvin for the respondent. PANEL: Professor DC Jackson (Vice-President), Major RAK MacAllan MC, Mr RS Charnley

Judgment One:

THE TRIBUNAL: The appellant, a citizen of Bangladesh, appeals against the decision of the Chief Adjudicator (Mr M Patey MBE) dismissing an appeal against a decision by the Secretary of State deciding to make a deportation order agaisnt the appellant by virtue of section 3(5)(a) of the Immigration Act 1971. As will be apparent from the determination we found this case to be difficult and complex. We are grateful to both representatives for their clear and forceful submissions. The notice of decision is dated 8 November 1984 and reads:

"You were granted leave to remain in the United Kingdom until 21 May 1980. Your application for further leave to remain was refused on 16 December 1981 when your stay was extended to 13 January 1982 under the Immigration (Variation of Leave) Order 1976. Your subsequent appeal was dismissed by an adjudicator on 21 January 1983 and an application for leave to appeal to the Immigration Appeal Tribunal was refused on 15 February 1983. The Secretary of State is satisfied that you have since remained without authority."

The appellant's immigration history leading to the refusal of leave to remain. We can do no better than set out the Chief Adjudicator's comprehensive review: "The appellant, a citizen of Bangladesh, born in 1950, obtained a Master of Science degree at Dacca University and subsequently worked at the University in a technical capacity. Whilst in this employment, he applied successfully for a British Council Award to attend a 9 month laboratory technician course in optics at Bristol Polytechnic with the intention of returning to Bangladesh where he would apply the skills acquited on the course. The appellant was duly admitted to this country for 12 months in May 1977. At the conclusion of the course the appellant applied for an extension of stay until 15 August 1977 to enable him to stay with friends here for a holiday. His application was granted and he was given leave to remain until 31 August 1977 subject to a condition prohibiting employment. The appellant subsequently admitted that whilst attending the course he had established a relationship with a British woman who, though separated, was still married and consequently they were unable to regularise their relationship. The appellant did not depart on the expiry of his leave and on 30 September 1977 the British Council Training Department in London wrote to the Home Office stating that their representative in Bristol had tries to persuade the appellant and two other gentlemen from Bangladesh to return to their country in April, later in May, and finally offered them a specific flight to Dacca on 3 July 1977 which they did not take. They had been asked to state in writing their reasons for not returning to Bangladesh but had not done so. The letter added that the Council representative in Bristol had lost contact with the three as they had moved without leaving a forwarding address. Police enquiries failed to reveal the appellant's whereabouts and nothing was heard of him until 19 April 1979 when the Home Office received a letter from the appellant stating that he had met his 'would be wife' in August 1976 and in June 1977 they had started living together. She had applied for a divorce from her husband in August 1977 but only obtained the decree absolute in February 1979. They wished to marry but the appellant stated that he could not get a certificate of marriage from the Registrar in Bristol because his visa had expired. He had been offered a place on a PhD course at the University of Stirling but he was unable to take up this offer because of financial problems. He had not approached the Home Office because his common law wife was not divorced and he feared that he might be refused permission to stay. He asked for the sympathetic consideration of his case so that they could be married. During the course of a full inquiry into this application, the appellant was interviewed by an Immigration Officer who asked why he had not mentioned the existence of his future wife when he applied in May 1977 for an extension of stay as a tourist. The appellant replied that he had felt that it was not necessary to mention her as they had, at that time, no definite plans to marry. At the end of his course he had commenced work in a number of Indian restaurants in the Bristol area. After reviewing all the information before him the Secretary of State granted the appellant leave to remain until 21 May 1980 with no restriction on taking employment. The appellant applied to the Home Office for permanent settlement on 29 April 1980 and on 25 June he and his wife were interviewed by a police officer at their home. The appellant said that, despite his qualifications he had been unable to obtain employment in the scientific field but he had been offered a position as a trainee social worker with Dr Barnardo's Homes in West Bromwich commencing on 1 September 1980. He had written to accept the offer and would move to that area with his wife. However, before a decision was taken on the application, the appellant telephoned the Home Office in July 1980 to request the return of his passport as he had been offered a job in Libya and would be leaving the United Kingdom during the first week in September. He was given leave to remain until 14 September 1980. However, the appellant did not depart and on 11 September 1980 he renewed his application for permanent residence. He added that his passport was with the Bangladesh High Commission in London for renewal and this was eventually forwarded to the Home Office by the appellant on 15 December 1980. During the course of later enquiries into the appellant's application it transpired that the appellant and his wife had separated and, when asked if they was any hope of a reconciliation, the appellant's wife had said that although she sympathised with him and believed that he wanted her back, she would never do so. After considering the information before him, the Secretary of State refused the appellant's application for permanent settlement on 16 December 1981.'" On 23 December 1980 the appellant gave notice of appeal. Representations were made on the appellant's behalf but after considering these the Secretary of State maintained his decision. On 21 January 1983 the appeal was dismissed by the adjudicator (Mr W Parker). In the course of his determination the adjudicator commented favourably about the appellant as to his skills as a social worker, but unfavourably first in regard to misleading the police and secondly as to the excuses as to why the appellant went to ground. The adjudicator said that he could not entirely rely upon the oral evidence given by the appellant for there were "several passages where it was motivated by expediency rather than truth". The adjudicator added that in his view the appellant would suffer no exceptional hardship in returning to Bangladesh. If there was no social work available he was qualified in Physics and the skill of a laboratory technician in optics. The appellant's application for leave to appeal to the Tribunal was dismissed on 15 February 1983. On 28 February 1983 the appellant's then solicitors wrote to the Home Office. "As you are aware, we act on behalf of Mr Mohammed Idrish, whose application for leave to appeal to the Immigration Appeal Tribunal was rejected on 15 February 1983. Mr Idrish is aggrieved at the decision of the Tribunal and has instructed us to apply for Legal Aid with a view to applying for a judicial review of this decision by the Divisional Court of the Queen's Bench Division of the High Court. We trust that in the circumstances, until the legal process has been exhausted, Mr Idrish will not be required to leave the United Kingdom." On 17 January 1983 leave to apply for judicial review was granted by Taylor J but the application was refused by Woolf J on 13 October 1983. The appellant appealed to the Court of Appeal but his appeal was dismissed on 5 July 1984. Leave to appeal to the House of Lords was refused by the Court of Appeal. A petition for leave was considered by the House of Lords' appeal committee at an oral hearing but was refused on 8 November 1984. The deportation proceedings On the same day as the House of Lords refused leave to appeal from the decision of the Court of Appeal, the Secretary of State took the decision to make the deportation order against the appellant on the basis that since 28 February 1983 (when the Tribunal refused leave to appeal) the appellant remained in this country "without authority". The appellant appealed against the decision and it was on 16 April 1985 that his appeal was dismissed by the Chief Adjudicator. As we have said in his determination the Chief Adjudicator reviewed the appellant's immigration history. The preliminary point taken before the Chief Adjudicator on behalf of the appellant by Mr Macdonald was that the Secretary of State had no power to deport the appellant as the appellant had not been in the United Kingdom "without authority". The appellant's petition to the House of Lords was dismissed only on the day the decision to make the deportation order was taken. The adjudicator followed the dicta of Lord Denning in the case of R v IAT ex parte Subramaniam [1976] Imm AR 155, stating that:

"the Secretary of State is not precluded from making a decision under Section 3(5)(a) even when the subject of that decision is protected from actual deportation under the provisions contained in Section 14(1) of the Act by virtue of an appeal pending against refusal to vary a leave."

The adjudicator continued: "I also consider that the statutory protection afforded under Section 14(1) only applies when an appellant has an appeal pending under the Act. Accordingly, whilst I recognise that the Secretary of State would not, as a matter of practise, seek to remove a person whose appeal has been dismissed by the statutory appellate authorities if the decision of those authorities is being challenged in the Superior Courts, he is under no legal obligation under the Immigration Act to desist from so doing." The adjudicator heard evidence from the appellant and eigth other witnesses. He also considered a large number of representations which had been made seeking to persuade the Secretary of State to reverse the decision to make a deportation order. The sources and nature of these representations were summarised by the adjudicator in his determination:

"I have subsequently had the opportunity to read these representations which have been conveniently summarised by Mr Macdonald as comprising 41 letters from Members of Parliament, 3 from Members of the House of Lords, 11 letters from clerics and religious organisations, including one from the Bishop of Lichfield referring to the possibility of reconciliation of the appellant with his wife, 3 from social worker organisations, 14 from community and educational organisations, including the Haringey Irish Association and the Union of Turkish Women in Britain, 52 from various branches of NALGO and 11 from other trade unions and trade councils. In addition a number of letters were received from individuals commending the excellent social work undertaken by the appellant particularly with the Sylheti community as well as a number which would seem primarily critical of successive governments restrictive immigration policies. I also have before me a sample of mass petitions organised by NALGO and signed by sa large number of members of the public. Mr Macdonald referred to one such petition containing 1,000 signatures which had been handed to the Minister of State on 24 February 1985 following the NALGO campaign."

The adjudicator set out in some detail the evidence given by the appellant. That evidence was much the same as that given in the earlier proceedings relating to the refusal of leave to remain but the appellant denied misleading the police. As to his marriage the appellant said (as he had said before Mr Parker) that on 3 July 1981 his wife had left him for another man. He said that she had moved back with him for six days in January or February 1982 but that they had both realised that they were better friends if apart. He still wanted his wife back. Both before Mr Parker in 1983 and before the Chief Adjudicator in 1985 the appellant and gave evidence as to the appellant's social work. Mr Parker accepted that the appellant was a good social worker. Before the Chief Adjudicator the appellant gave details of his job at Dr Barnardo's which he had taken in 1980. From 1980 until 1984 he worked at a unit in the High Street, West Bromwich, which provided treatment for young people under care orders. It was a residential home with provisions for accommodation and training. Its aims were to persuade the community to accept the children under the care orders and to provide resources for child care. The appellant's special job was in community relations for, speaking Bengali, Punjabi and Urdu, he could communicate within the community. Due to financial cuts the unit in which he was working closed in August 1984 and he found that in the job to which he was transferred by Dr Barnardo's he had less opportunity to work with families in the community. In March 1985 therefore he moved to the Asian Resource Centre in Handsworth. The appellant pointed out that more than 4,000 Bengali's live within walking distance of the Centre and this provides a situation particularly as the majority of these were male. There is a great deal of work to do in counselling as to rights and in relation to the need to adjust to life in this country. He had not met any other Bengali Social Worker in the last five years. The appellant said that his skills as a Social Worker could be used to greater effect in this country than in Bangladesh. Other witnesses testified to the need filled by tge appellant, both in Birmingham and Bristol, as a skilled Asian Social Worker Speaking Bengali -- particularly where there was a concentration of ethnic minorities. The appeallant's services to Dr Barnardo's were described by the Director of the Centre in West Bromwich where he worked as "very successful -- ongoing" in very difficult work. A colleague said that the appellant understood the cultural background of the people with whom he dealt. A full-time official of NALGO said that NALGO was supporting the appellant -- the appellant was a member of the Union and he (the official) was impressed by the care and patience shown by the appellant in his work. A member of the Management Committee of the Asian Resource Centre gave evidence of the need to recruit a Bengali worker. They had had difficulty in finding Sylheti speaker and the appellant "looked set to satisfy the need". There was an organised and energetic appeal to raise support for the appellant's cause. No doubt many of the representations to which we have referred, are the result of that appeal and many are couched in similar and fairly general terms. However, there is no doubt from these representations that the appellant is held in high regard by those that work with him and those for whom he works. He appears to have a high degree of skill in the social work which he undertakes and to be a specialist in working with Asian communities. Following the Court of Appeal decision in R v IAT ex parte Bakhtaur Singh [1984] Imm AR 217, the adjudicator held that:

". . . it does not therefore fall to me to consider any adverse affects on the community in this country of the appellant's removal to Bangladesh nor, indeed do I face the unenviable task of seeking to balance these with the benefits to be derived to the community in Bangladesh by the return of someone so well qualified in the scientific field and with the acquired skills in social work of the appellant."

However, the Chief Adjudicator recognised that:

" . . . even disregarding those oral and written representations submitted by persons who have no direct knowledge of the appellant's work as a social worker both for Dr Barnardo's and for various organisations for whom he worked in a voluntary capacity, I must recognise that the appellant has achieved a most impressive employment record and that he is held in the highest esteem by his fellow workers and superiors."

After reviewing the factors which he saw as relevant to the appeal (no doubt from the content having HC 169 paragraph 156 in mind) the adjudicator said that he saw little assistance for the appellant in the length of his residence. "I appreciate that the appellant has been resident in this country since May 1976: however the significance of this period is reduced by the fact that he has only been here with leave under the Act from May 1976 to August 1977 and from May 1979 until May 1980, a total of some 27 months. Even if I was to add the 19 months to December 1981, when the appellant was awaiting the Secretary of State's decision on his application for permanent settlement, this would only total some 46 months and I do not consider that I can pay more than scant regard to the time he was awaiting the hearing of his previous appeal and applications to the Superior Courts, still less to the two years he remained here without any leave to remain on marriage despite his previous overstay does not preclude the Secretary of State, or indeed myself, from taking this overstay into consideration as a factor in determining whether deportation is the appropriate course." The chief Adjudicator also saw little assistance for the appellant in his domestic circumstances or any compassionate circumstances. He continued "The appellant has no claim under the Immigration Rules to remain in this country and it would not therefore be fair and consistent to permit him to do so unless I was to find that the relevant compassionate circumstances justified such a departure". He did not feel that such a departure was justified and concluded: I am therefore satisfied tha tthe Secretary of State's decision in the present case is in complete accord with the law and Immigration Rules and, after reviewing the totality of evidence before me, taking into account all relevant circumstances in the case including the factors listed in HC 169, paragraph 156, that the Secretary of State has, on balance of probabilities, exercised his discretion correctly." The contentions before the Tribunal We deal with the case under three headings, following in the main the approach of the parties before us. (i) The liability of the appellant to a decision to make a deportation order against him; (ii) The proper approach to consideration of the justification of such a decsiion on the merits (including the effect of the decision of the court of Appeal in Bakhtaur Singh); (iii) The application of (ii) to the appellant. (i) The liability of the appellant to a decision to make a deportation order The relevant provisions of the Immigration Act 1971 read: "3.(1) Except as otherwise provided by or under this Act, where a person is not patrial -- (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period . . . 3.(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; . . . 3.(5) a person who is not patrial shall be liable to deportation from the United Kingdom -- (a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limtied by the leave: . . . 14.(1) . . . and a variation shall not take effect so long as an appeal is pending under this subsection against the variation, nor shall an appellant be required to leave the United Kingdom by reason of the expiration of his leave so long as his appeal is pending under this subsection against a refusal to enlarge or remove the limit on the duration of the leave. 15.(2) A deportation order shall not be made against a person by virtue of section 3(5) above so long as an appeal may be brought against the decision to make it nor, if such an appeal is duly brought, so long as the appeal is pending . . . 24.(1) A person who is not patrial shall be guilty of an offence punishable on summary conviction with a fine of not more than @200 or with imprisonment for not more than six months, or with both, in any of the following cases: (b) if, having only a limtied leave to enter or remain in the United Kingdom, he knowingly either -- (i) remains beyond the time limted by leave; or (ii) fails to observe a condition of the leave: . . . 33.(4) For purposes of this Act, an appeal under Part II shall, subject to any express provision to the contrary, be treated as pending during the period beginning when notice of appeal is duly given and ending when the appeal is finally determined or withdrawn; and in the case of an appeal to an adjudicator the appeal shall not be treated as finally determined so long as a further appeal can be brought by virtue of section 20 nor, if such an appeal is duly brought, until it is determined or withdrawn." The relevant immigration rule is set out in HC 169, paragraph 158:

"158. Deportation will normally be the proper course where the person has failed to comply with or has contravened a condition or has remained without authorisation. Full account is to be taken of all the relevant circumstances known to the Secretary of State, including those listed in paragraph 156, before a decision is reached."

Section 3(5)(a) -- liability on remaining "beyond the time limited by the leave" In the light of the judgment of the Court of Appeal in Subramaniam Mr Macdonald did not seek to argue before us that the appellant was not liable to deportation once he had remained without leave. Mr Macdonald reserved the point for argument elsewhere but accepted for present purposes after 15 February 1983 the appellant fell within the scope of section 3(5)(a) and was therefore liable to deportation. Mr Macdonald did argue however that the statutory liability was put into practice through the immigration rules (made under section 3(2) and in particular, in respect of an overstayer, HC 169, paragraph 158. Mr Macdonald added that by virtue of section 19 of the Immigration Act 1971 (applied to the Tribunal through section 20) the Tribunal could only support a decision taken in accordance with the Act and the Rules. With respect this argument assumes that which it sets out to establish ie that there is no room for the operation of the Act in a deporation case outside the rules. However, we are of the opinion that, unlike admission taking the immigration control structure as a whole it simply would not make sense to provide for a residual discretion to deport outside the somewhat elaborate framework of the rules. Admission outside the rules is a concession: deportation would render the rules otiose. As the Court of Appeal said in Bakhtaur Singh [1984] Imm AR at page 222:

"Basically, it seems to us what Parliament has done is this. It has not thought it desirable that the Home Secretary should have a general power to deport at his discretion. But it has specified certain cases where it has thought it to be in the public interest that a person should be liable to deportation."

Further it is clear from the reference to the period "without authority" in the notice of decision the Secretary of State was purporting to apply the rules. Mr Gulvin did not argue otherwise. It follows that the issue of the power to make the decision to deport turns on the scope meaning of "without authorisation" in HC paragraph 158. HC 169, paragraph 158 -- remaining "without authorisation" Mr Gulvin argued that the words "without authorisation" meant "without leave" and the Chief Adjudicator appears to have accepted that argument. Mr Macdonald contended that the words bore a wider meaning and included both those who could not be removed from this country because of the statutory protection of either section 14(1) or 15(2) of the Immigration Act and those who were in fact authorised by the Secretary of State to be here. We must approach the question of construction of the rules in the light of the decision of the Court of Appeal in Subramaniam and the equally well-known decision of the House of Lords in R v IAT ex parte Suthendran [1977] Imm AR 44. In Subramaniam the appellant had leave to remain in this country until 30 June 1974. On 19 June 1974 an application was made for an extension of leave but refused on 15 July 1974. Notice of appeal was lodged. Acknowledgement of that Notice included the words "the appellant will not be required to leave the United Kingdom while the appeal is pending". After the expiry of the leave 30 June 1984, further applications were made and on 29 November 1974 the appeal from the refusal made on 19 June 1974 was withdrawn. On 8 December 1975 the Secretary of State decided to make a deportation order by virtue of section 3(5)(a) on the basis that the appellant had remained in the United Kingdom without authority since 26 November 1974 -- the withdrawal of the earlier appeal. At the time of the decision to make the deportation order no decision had been taken on the later applications for leave. It was argued for the appellant that as applications for leave were outstanding at the date of the decision to make the deporation order that decision was invalid because of the provisions of the Immigration Act 1971 section 14(1), conferring right of appeal from refusal of an application. The Court of Appeal held that provision applied only to a person who, at the time of the application, had leave to remain in this country. However, the Court of Appeal also gave its attention to two other important matters of construction both critical to the present case. First Lord Denning (in a passage with which Ormrod and Bridge LJJ agreed) made it clear that once limited leave had expired the Secretary of State may take a decision to deport a person. In the passage relied on by the Chief Adjudicator, Lord Denning said: "So far as the decision to deport is concerned it is quite plain that in the case of a man who has limited leave to remain here, once that leave has expired, there is no reason in law at all why the Secretary of State should not make a decision to deport him. Tht decision to deport him can be made as soon as the limited leave has expired, even though he has previously applied for an extension, and even though the application has afterwards been refused and he appeals against it. The decision to deport can be made. So far as the deportation order itself is concerned, it is different. Section 15(2) makes it plain that a deportation order is not to be made "so long as an appeal may be made against the decision to make it nor, if such an appeal is duly brought, so long as the appeal is pending'." While it is clearly a dictun the Court was re-assembled especially to make the point and as Mr Macdonald no doubt realised we could not possible take any other course than that followed by the Chief Adjudicator and follow the principles adumbrated in the dictum. Secondly, and connected with the linking of the power to decide to deport with the eexpiry of leave, Lord Denning in his judgment (with which Ormrod LJ agreed) dealt with an arguemnt that the Home Office had authorised the appellant's leave. "So much for the Act itself, but there is a point I must mention on the words 'limited leave'. At one time, when the Home Office received an application to extend the time, they acknowledged the aplication and added these words: 'Meanwhile this acknowledgement may be regarded as authority for the holder to remain in the United Kingdom pending decision on an application made for a stay'. That authorisation was held by the Tribunal to be itself a limited leave to remain in this country so that whilst the application was pending the Home Secretary had no power to make a decision to deport. It was so held in the Enorzah case, reported in [1975] Imm AR page 10. In the present case the Home Office did not use that formula. In their acknowledgement of 25 July 1974 they used this formula: 'The appellant will not be required to leave the United Kingdom while the appeal is pending'. It was suggested that this was itself an authorisation to stay, but I cannot so regard it. This acknowledgment followed the words of s 14 itself. It wasd appropriate and correct because the man had applied on 19 June 1974 for an extension whilst his original leave subsisted . . .It merely stated what the Act stated. It was a recital of the statutory protection. It was not an authority to stay." Lord Denning concluded that in the case before him the appellant had remained without authorisation within the then current immigration rules. Thirdly, all three members of the court dealt with the effect of the protection afforded by section 14(1). Ormrod LJ, with whom Lord Denning agreed, said that is should be read as "analogous to a stay which is a common form of proceeding in the normal court structure when an appeal is pending". Bridge LJ said that it was clear that the protection afforded a defence to any prosecution under section 24(1)(b) but equally clear that it formed no grant of a fresh limited leave so as to attract a right of appeal. It seems to us that the Court of Appeal took the firm view that the protection of section 14(1) not only did not imply a grant of leave but did not amount to "authority" so as to prohibit a decision to make a deportation order. In Suthendran the appellant was admitted to this country for 12 months, his leave expiring on 23 July 1974. On that date an application was made for a work permit and was refused. On 13 May 1975 the appellant's appeal was dismissed by an adjudicator and (while his appeal to the Tribunal was pending) on 20 May 1975 a further application for leave was made. On 18 June 1975 this was refused the notice of refusal reading "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 17 July 1975. No further extension of stay will be granted." On 19 June 1975 the appeal from the refusal of the earlier application was dismissed by the Tribunal. By majority the House of Lords held that for a right of appeal to attach under section 14(1) the refusal must be within the period of current leave. To meet the point that the right to appeal could thus depend on the administrative speed of the refusal the Secretary of State made the Immigration (Variation of Leave) Order, 1976 which came into operation on 27 September 1976. By that Order, subject to exceptions, leave is extended to 28 days subsequent to the decision on an application made during the currency of limited leave. The Order therefore both deals with the point of expiry of leave and renders unnecessary the type of permission to remain for "packing up arrangements" granted in Sutherndran. In Suthendran, Lord Russell took the point that the Secretary of State had no power to vary expired leave but had the power to grant leave de novo. He suggested that instead of such "packing up" leave as was granted in that case the purpose of such leave could be met "by indicating that while not giving leave to remain the Secretary of State did not propose for (say) one month to initiate deportation procedures so that the applicant should have time to arrange his affairs". We consider Mr Macdonald's submissions on the power to deport in the light of these decisions and the principles set out in them. (a) "Leave" and "authorisation" In our view, subject to any judicial authority "authorisation" is not to be equated with "leave". It would be curious if such a change in wording had no significance. If anything is clear in the Immigration control structure it is that "leave" bears a technical meaning and we cannot believe that if "leave" was intended the word would not have been used. Further, there are categories of persons whose presence in this country is authorised by statute. So seamen and persons whose presence in this country is authorised by statute. So seamen and air crew may enter the United Kingdom without leave under certain circumstances (Immigration Act 1971 section 8(1) and by statutory instrument the Secretary of State may exempt persons (inter alia) from the requirement of leave to enter (section 8(2)). We do not read anything that was said in either Suthendran or Subramaniam as equating leave with authorisation. In ex parte Bhanji [1977] Imm AR 89 the Court of Appeal expressed the view that the "packing up arrangements such as were granted in Suthendran was "not a leave to remain" but only "an indulgence" extended to the applicant "so that he could pack his bags and make arrangements for his departure". While by section 3(1) of the Immigration Act 1971 leave is necessary for those subject to the Act unless the Act provides otherwise, no such mandatory requirement applies to a person who remains in this country after leave to enter. To us this is entirely sensible for there may be circumstances in which the Secretary of State may in his discretion outside the rules wish to give authority to remain without giving leave from which rights would flow (particularly the right of appeal). It seems to us therefore both as a matter of principle and a matter of authority that the immigration structure contemplates the power in the Secretary of State to permit a person to remain in this country without necessarily granting him leave so to do. (b) Does the protection of section 14(1) against removal amount to "authorisation"? It is clear from the passages in Subramaniam which we have cited that the protection against removal cannot amount to authorisation within the meaning of HC 169 paragraph 158. Just as with the expression of the view that the trigger for the power to make a deportation order is expiry of leave it is not open to us to depart from the view expressed in Subramaniam categorising the statutory protection of section 14(1) as a stay on proceedings only. (c) The scope of the statutory protection against removal In the case before us, it should be recalled, the appellant seeks to apply the statutory protection to the process of judicial review once a judgment of the High Court has granted leave for the application to be made. Mr Macdonald argued that an appeal cannot be "determined" within the meaning of section 14(1) and 33(4) if a court has agreed to hear an application the success of which would mean the setting aside of a decision which "determined" the appeal. As we understood it Mr Macdonald took the view that such protection would attach only at most where an individual had a right to take the proceedings on review or appeal or it leave was required once leave had been granted. Our decision that the statutory protection cannot amount to authorisation renders it strictly unnecessary to decide this point but as it was fully argued and as it would be critical if we were wrong on the authorisation point we deal with it. We agree with the Chief Adjudicator tha the statutory protection extends only to appeals before the appellate authorities under the Immigration Act 1971. On general principles the ability to seek leave for judicial review depends on the "determination" of the process in regard to which the review is sought. There is nothing in the context or the content of the statutory provisions at issue to persuade us that they are intended to refer to other than the appellate process set up under the Act. While therefore, in our opinion, once a decision is set aside by judicial review an appeal is once again pending the appeal remains "determined" until the decision is set aside. Any remedy against an exercise of executiive discretion so as to prevent the access of an individual to the courts would seem to us to depend upon the challenge of the exercise in the courts by way of judicial review. We conclude therefore that the statutory protection against removal contained in section 14(1) does not extend to the period on which, in this case, the Secretary of State relies as being that of the appellant's overstay. (d) "Authorisation" by consent by the Secretary of State Mr Macdonald argued that it is possible for a person to be in this country lawfully without leave but with authorisation if the Secretary of State so permits. It will be apparent from what we have already said that we are inclined to agree. An "indulgence" or an indication that deportation procedures would not be initiated could in our view amount to an authorisation within the meaning of HC 169 paragraph 158. In this case the period at issue starts with the dismissal of the appellant's appeal to the Tribunal on 15 February 1983 and continues to the day of dismissal of his appeal to the House of Lords on 8 November 1984. The appellant's solicitor's letter of 28 February 1983, which we have set out in full above, states "we trust that in the circumstances, until the legal process has been exhausted, Mr Idrish will not be required to leave the United Kingdom". In our view, that letter clearly called for a reply making clear the appellant's immigration status in this country. It is only the Secretary of State who can grant or withhold leave to remain or extend permission to remain and in out opinion, in the light of that letter, there was a duty to state the extent to which (if at all) the appellant's solicitor's request was noted. In our view the Secretary of State could grant leave, extend permission or simply agree that he statutory protection of section 14(1) would continue so that here would be, in the words of Subramaniam, a stay on any deportation proceedings. The Secretary of State did not produce any evidence connected with the letter and it seems to us that on the evidence (or lack of it) that there was no compliance with the duty which in our opinion arose on receipt of the letter. The appellant was left to the inaction of the Secretary of State which we consider to be unsatisfactory. As a consequency we are left with the task of drawing inferences from the facts in the light of the immigration structure. In our view the inference most favourable to the appellant that can be drawn is that the type of protection set out in section 14(1) would continue. The appellant's solicitor's letter was couched in the very terms of section 14 protection. We do not think that the delay of any deportation proceedings until after the House of Lords proceedings can of itself be taken Home Office to mean the granting of authority to remain. Indeed, given the construction of the statutory protection in Subramaniam it makes complete sense for the Secretary of State to allow an appellant to remain to challenge a decision of refusal of leave to remain but in so doing not to be made to grant leave or authorise the presence in this country. It seems to us entirely in keeping with the immigration structure that it be possible for an appellant to remain in this country to challenge the decision of refusal of leave but for the Secretary of State to be able to point to the period during which that challenge is being mounted as a period of being here without leave or authorisation. The public interest in reliance on that period will be a matter for consideration on the merits on the timing of the decision to make a deportation order and other elements, but in our view the immigration structure does contemplate an appellant being lawfully in this country but that his presence is not "authorised" within HC 169 paragraph 158. It seems to us that that was the position in this case. We conclude therefore that the Secretary of State had the power to decide to make a deportation order and we turn to the merits. (ii) The merits -- the approach to be adopted The relevant rules are those set out in HC 169 paragraphs 154, 155, and 156 and 158 which so far as relevant read:

"154. In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstance of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects."

"155. Most of the cases in which deportation may be the appropriate course fall into two main categories. There are, first, those cases which come to notice following a conviction for a criminal offence and in which it is fitting that, because of his conduct, a person should no longer be allowed to remain here: and, second, those cases in which the person is here, or is remaining here, in defiance of the immigration control."

"156. In considering whether to give efffect to the recommendation for deportation made by a court on conviction the Secretary of State will take into account every relevant factor known to him, including: age; length of residence in the United Kingdom; strength of connections with the United Kingdom; personal history, including character, conduct and employment records; domestic circumstances; the nature of the offence of which the person was convicted; previous criminal record; compassionate circumstances; any representations received on the person's behalf. . . ."

"158. Deportation will normally be the proper course where the person has failed to comply with or has contravened a condition or has remained without authorisation. Full account is to be taken of all the relevant circumstances known to the Secretary of State, including those listed in paragraph 156, before a decision is reached."

Both Mr Macdonald and Mr Gulvin agreed that should we disagree with the Chief Adjudicator we should decide the matter. Neither sought remittal. As the appellant's work is in community relations and many of the representations dwell on the value to the community of his work the scope of the decision of the Court of Appeal in R v IAT ex parte Bakhtaur Singh [1984] Imm AR 217 is critical. In that case the Court was concerned with the rules set out in HC 66 which however in numbering and (in respect of public interest and compassionate circumstances in a deportation context) in content are identical with HC 169. In Bakhtaur Singh the appellant was a Sikh music teacher and priest whose leave expired in October 1980. In the latter part of 1982, after being warned that he should leave the country he was convicted of overstaying and sentenced to two months imprisonment but on appeal the recommendation for his deportation was quashed. He was again warned that the should leave and as he did not leave, on 1 February 1983 the Secretary of State decided to make a deportation order against him. The issue for the Court of Appeal was whether the appellate authorities could consider the loss to the Sikh community of the appellant's services either as part of the public interest or as a compassionate circumstance. The court held that it fell within neither but being a question of the impact of the appellant's work upon community relations was a matter of policy for the Secretary of State. The court said: "In our opinion paragraph 154 is concerned with a conflict. That conflict is between the public interest on one side and the compassionate circumstances on the other. The existence of the conflict is indicated by the word 'against'. We agree that one should avoid, in construing this document, an approach based on refined linguistic points. But one cannot disregard ordinary English usage. In our view the word 'against' is a strong indication of a distinction between the public interest and the compassionate circumstances of the case. In the context of the document itself and the statute, we can only interpret the 'public interest' referred to in paragraph 154 as the public interest in favour of deportation and as excluding any consideration of public interest which might be against deportation. The only circumstances which the opening words of paragraph 154 is contemplating as being capable of being against deportation are 'the compassionate circumstances of the case'." In rejecting the argument that community relations were included within compassionate circumstances, the court said:

"In our opinion, the compassionate circumstances referred to in paragraph 154 are those of a personal nature relating to the impact of the deportation upon the applicant himself which arouse compassion. And compassion, we think, is the emotion of being moved by the suffering or distress of another and wishing to relieve it. But it seems to us that it is the personal situation of the applicant himself that one is concerned with."

Thirdly, the court rejected a contention that the impact on community relations was one of the "relevant circumstances" whitin paragraph 158 saying that if that argument were correct it would make the reference to "relevant circumstances" so wide as to include matters of wholly different character from those in paragraph 156. The court continued:

"We do not think that 'relevant circumstances' can be taken as extending to matters unrelated to the personal circumstances of the applicant and his family and persons intimately connected with him. To remove the ambit of the expression from a personal level to a public one is going too far."

In support of the conclusion that compassionate circumstances refer to the personal situation of an applicant the court also referred to paragraph 156 saying that in that paragraph "(dealing with recommendations for deportation by a court) the list of circumstances are, we think, all essentially personal to the applicant." In the light of the decision in Bakhtaur Singh we make the following comments as to our approach. (i) In our view in respect of deportation by virtue of section 3(5)(a) the essence of the decision is that by virtue of the Act and rules "public interest" is the interest reflected in deporting an individual who has overstayed his leave. The decision does not hold that an assessment of public interest is inherently non-justiciable -- and indeed the Tribunal are almost daily called on to make that assessment in the context of decisions to make a deportation order by virtue of section 3(5)(b). Secondly, it does not follow from the decision that it is not for the public interest in respect of the length and nature of the overstaying relied upon as the basis of the decision to deport. (ii) Mr Gulvin argued that we would be treading on dangerous ground in assessing the nature of an overstay. We take the converse view for, it seems to us to be contrary to common sense and the principles of immigration control to assume that the public interest in deportation applies equally regardless of the time or purpose of the overstay. Indeed the Secretary of State often argues (and in our view rightly) that going to ground is a strong reason in favour of deportation. Further the length of an overstay seems clearly relevant to the exercise of a discretion to make a deporation order (see for example the decision of Taylor J in Makhan Singh -- 17 October 1984). Further we disagree with Mr Gulvin if he was arguing (as he dseemed to be arguing) that it was unfair to take into account the period of stay of an individual while pursuing his legal rights of appeal as against a person who does not pursue those rights. It must be remembered first that the pursuit of legal rights requires leave for the pursuit to be taken beyond an adjudicator (and therefore a claim must be taken to have some substance) and secondly, the deportation process directs attention at certain specified factors at the date of decision to make the deportation order necessarily involving the appellant's record prior to and up to that date. These factors may go in favour or against an individual but they cannot be ignored. (iii) It seems to have been common ground in Bakhtaur Singh that the factor at issue was not within those listed in HC 169 paragraph 156. Further it was held not to be capable of being seen as a like factor and therefore within the scope of paragraph 158. The decision therefore has no application in respect of such factors. Mr Gulvin warned us against bringing the question of the impact of the appellant's deportation on the community in through paragraph 156. We agree that it is clear from Bakhtaur Singh that the impact of the appellant's departure on community relations is outside the factors which we can consider as relevant to the decision to make the deportation order. We further agree that the factors to consider must have a personal nexus with the appellant. Subject to the nexus in our view the decision in Bakhtaur Singh no way restricts the consideration of the factors listed in paragraph 156 or any like factor brought in through paragraph 158. In particular we can make no sense of the factors of character, conduct and criminal record save in the context of the individual in our society. We do not accept Mr Gulvin's contention that as a consequence of Bakhtaur Singh we can no longer consider the grade of seriousness of a crime or the benefit or detriment to an appellant of a particular kind of conduct. (iv)The factors listed under paragraph 156 include "compassionate circumstances" and there are, in addition, a number of other factors. Paragraph 158 refers to "other relevant circumstances". Adopting the Bakhtaur Singh approach it would be to disregard the plain language of the rule to see the factors which are in addition to compassionate circumstances as compassionate circumstances. It follows necessarily that the simple "balance" between the public interest and compassionate circumstances expressed in paragraph 154 must be qualified by the factors of paragraph 156 and any other relevant circumstances within paragraph 158. (v) In addressing us on the general approach, Mr Gulvin stressed that the appellant had no claim under the rules to remain. However, the relevance of the facts as to be set against the public interest reflected in deportation of an overstayer necessarily assumes the possibility that a person without leave may not be deported. (vi) According to the rules the public interest dictates that normally overstay calls for deportation. In deciding whether the normal course should follow we weigh the public interest in the appellant's overstay (including the timing of the decision to make the deportation order). Within the bounds set by Bakhtaur Singh we then consider all the factors listed in paragraph 156 and any other relevant circumstances. In so considering these we follow the approach approved by Taylor J in Navsariwalla (26 June 1985) and Sigola (16 October 1984) in that (a) it is mandatory that we take into account the factors listed in paragraph 156 and (b) while accepting that the appellant is an overstayer all other relevant issues are for us to decide whether or not a view has been expressed in the proceedings relating to leave to remain. Having weighed the relevant circumstances against each other (for some may simply support the decision to deport) we set out view of the totality against the public interest reflected in the deportation of an overstayer as it is seen to be in this case. (iii) The application of the law to the facts (i) The public interest The Chief Adjudicator did not refer to the possibility that the public interest may vary depending on the length and nature of the overstay nor did he consider in his conclusion the precise context of the decision to deport in this case. In our view these matters are relevant to the issues before us. The appellant's period of overstay on which the decision to make the deportation is based was wholly that during which he was challenging the decision upon which the overstay depended. In so doing, he was simply exercising his rights conferred by the law. While he was before the appellate authorities he could not be required to leave the country and, more, the Secretary of State does not allege that during that time the appellant remained without authority. It seems clear to us that the Secretary of State decided not to initiate deportation proceedings until the proceedings taken by the appellant in respect of the decision to refuse leave had ended. In Mr Gulvin's words the Secretary of State extended an indulgence to the appellant and thereby in any normal use of language permitted him to remain. As we have said, in our view, the action (or inaction) of the Secretary of State does not on the facts amount to "authorisation" within paragraph 158. However, at the least reliance on the period of indulgence (and no other period) and the period of overstay is relevant to the public interest in the overstay. The explanatory statement in summarising the records states that after refusal of the appellant's appeal by the Tribunal "the appellant had failed to leave the United Kingdom and had continued to remain here without and in defiance of immigration control". In its conclusion the explanatory statement asserts that the Secretary of State took his decision after taking account of all relevant factors "and mindful of the need to maintain a fair and effective immigration control". Such statements reflect the content of HC 169 paragraph 155 and are those commonly to be found in justifying the decision to make a deportation order but their relevance to this case is questionable. First, as a matter of the English language it is hardly true that the appellant remained in this country "in defiance of immigration control" when at all times he was openly challenging the decision to refuse leave, was represented by solicitors who had written to the Secretary of State in respect of his status and no reply had been given. It is difficult to argue that a person remains "in defiance" of a control when the "controller" permits the presence here. Nor is this simply a semantic point for the wording of paragraph 155 shows that the normal case contemplated is of a person who at the least simply stays on after expiry of leave. The fact that during the whole period of overstay the appellant was exercising rights conferred by the very system of control which provides for the need for leave must affect the public interest involved. Further, that involvement is underlined by the fact that the decision to make a deportation order was taken on the very day of the determination of the petition to the House of Lords and thereby no opportunity as offered to the appellant simply to go. Deportation, as has been said many times, is a serious question and it seems to us that where a person is permitted to remain without leave to challenge the refusal of leave the failure to allow any period of voluntary departure again reflects on the public interest in the decision to deport. Finally on this point we have our doubts that on the evidence the decision in this case, taken when it was and in the light of the permission extended to the appellant to remain in this country through the Secretary of State's inaction, was necessary "to maintain a fair and effective immigration control". After summarising the appellant's immigration history, including the legal proceedings in which he was engaged, the explanatory statement records that the Secretary of State was not satisfied "that the appellant had any intention of leaving the United Kingdom voluntarily". While the appellant's disappearance frorm view and overstay from 1977 until 1979 is no doubt a factor in reaching this conclusion, since that date the appellant has been in this country either with leave or with permission. He has been openly involved in public activities and has acted at all times on legal advice. His conduct has been, it may be said, the very converse of going to ground. We have our doubts whether the decision to make a deportation order on the grounds that he had no intention of leaving the United Kingdom voluntarily after the expiry of the legal process and his permitted stay was justified without at least providing him with an opportunity for leaving voluntarily. We conclude therefore that on the facts of this case the public interest in the decision to make the deportation order taken when it was and against the background to which we have referred was not strong. (ii) The factors to be set against the public interest We turn to the factors set out in HC 169 paragraph 156. The appellant's age is neutral and neither party sought to make any point concerning it. We agree with the Chief Adjudicator that the appellant's domestic circumstances are of little assistance to him and we do not see them as a factor in favour or against the normal course taking place. The appellant has no criminal record. Given the decision in Bakhtaur Singh we do not think that compassionate circumstances as such have any part to play in this case. We do not consider the representations made independently for they relate to factors which we now consider separately. Suffice to say that the representations testify to the injustice (as it is seen) of the failure to grant the appellant leave following the separation between him and his wife, to the appellant's valuable social work with ethnic minorities and to his commitment to this country (on the latter two points confirming other evidence). Length of residence The appellant has been here since 1976 and with leave from May 1976 to August 1977, May 1979 to December 1981, with statutory protection from December 1981 to February 1983 and, as we have found, with permission until the date of decision in this case ie 8 November 1984. We disagree with the Chief Adjudicator if he was seeking to differentiate for present purposes between leave granted by the Secretary of State and leave granted by virtue of the Immigration (Variation of Leave) Order 1976. We also pay a little more than the "scant regard" which the Chief Adjudicator paid to the time the appellant spent here while conducting the proceedings in that we think that in considering whether the power to make a deportation should be exercised we are entitled to take into account the appellant's conduct and any commitment to the United Kingdom strengthened during that time. Strength of connections The Chief Adjudicator made no specific reference to this factor but, with respect, we see it as important. The appellant came here as a student, overstayed and was eventually granted 12 months leave on the basis of marriage. Neither the initial purpose of entry nor the marriage (which now seems to be but a shell) provide any connection. It is however common ground that the appellant is integrated into the community and has become a social worker with fairly unique skills. Moreover he operates in a context which it is apparent from any cursory view provided particularly apt opportunities for the skills he developed from 1980 until the date of decision. That development occurred through his voluntary work in Bristol and then through Dr Barnardo's at West Bromwish and has of course been continued in his transfer to the Asian Resource Centre at Handsworth. In our view this commitment provides a strong connection with the United Kingdom. Personal history, including character, conduct and employment record. Again the Chief Adjudicator made no specific reference to these factors save that he accepted that "the appellant has achieved a most impressive employment record and that he is held in the highest esteem by his fellow workers and superiors". That evaluation is based on the evidnece and we agree with it. There is of course an overlap between the factors under this head and those of strength of connections since in this case that strength comes from the appellant's employment. As to the appellant's conduct the Chief Adjudicator recorded Mr Gulvin's submissions referring to the view of the appellant taken by the adjudicator in the refusal of leave proceedings. Unfortunately, however in our view the Chief Adjudicator made no finding of fact as to his view of the appellant or such explanations of his conduct as the appellant advanced. The Chief Adjudicator made no adverse comment as to the appellant's credibility and we therefore must take it that he accepted the appellant's evidence. Nevertheless it is clear that from 1977 to 1979 the appellant deliberately overstayed and made only a long delayed application to regularise his position. Such conduct can only be held against him in considering whether the present decision to make a deportation order as an overstayer is justified. Mr Macdonald placed great stress on the delay in responding to the appellant's application for indefinite leave based on his marriage and it is certainly true that if the application had been decided prior to July 1981 the appellant would have qualified for consideration of indefinite leave. However in our view, in so far as it may be said that the delay resulted in the failure to obtain that leave that delay was not excessive. The background to the delay shows that it was not entirely due to lack of action by the Home Office and any delay after July 1981 could not be said to affect the granting of leave. Conversely, while the application was being considered the appellant had leave to remain and we are entitled, as we said, to take into account his conduct and employment and connections created during that time. Mr Gulvin argued that he "employment record" within paragraph 156 meant simply and only whether the appellant had been a good employee and the nature of the employment is irrelevant. We read the factor rather more widely and we link it with the other factors in this heading. In passing we note that for example in Sigola, Taylor J in holding that the employment of an appellant as an auxiliary nurse should have been given weight by an adjudicator, expressed the view that "long term, humble service and the giving of a good deal of comfort to people at bedside level" were matters for consideration in a deportation context. We refer to that which we have said in relation to the appellant's strength of connections with the United Kingdom. We take into account in the context of consideration of his character and conduct that the appellant has been involved in voluntary and then paid social work in endeavouring to resolve problems of ethnic minorities (particularly the young) and their relationship within out society. To us this is not a factor simply to be acknowledged. It shows a willingness to act positively in connection with and to devote an apparently considerable ability to work of a kind in a geographical area in which the value of such activities is all too painfully obvious. Conclusions We must have regard to the factors known to the Secretary of State at the date of the decision but there is no contention that any evidence before us should be excluded. Insofar as we have referred to matters which have taken place since the date of decision these are simply to complete the narrative and we base our conclusion on the situation as it existed and in the light of the public activities of the appellant known to the Secretary of State on 8 November 1984. In our view, on the totality of the evidence, balancing the public interest reflected in the decision to make a deportation order as it was made in this case against the factors as they exist in this case we do not think that the normal course of deportation should follow. We reach this decision in the light of the nature of the overstay, the timing of the decision to make the deportation order and most importantly the demonstrated commitment of the appellant to work in the United Kingdom particularly geared to the circumstances in the United Kingdom and his conduct and employment record while properly here. The appeal is allowed. This determination was delivered orally on 24 October 1985. On that occasion the appellant was represented by Miss P Grant, Solicitor and the respondent by Mr D Wilmott. On the declaration that the appeal was allowed Miss Grant asked that the Tribunal give a direction that the appellant be granted indefinite leave to remain. We gave our view that the power to give directions was limited to directions to carry out the decision reached. The case before us was concerned solely with the justifiability of the decision on 8 November 1984 to make a deportation order. We could not therefore give the direction requested. Further even if we had the power we would not have exercised it, for the same reason -- that the issue of granting such leave to the appellant was not before us.

DISPOSITION:

Appeal allowed Application for directions refused

SOLICITORS:

Miss P Grant