Jacques Edgar Ah-Time v. Secretary of State for the Home Department

Immigration Appeal Tribunal

[1989] Imm AR 340

Hearing Date: 20 December 1988

20 December 1988

Index Terms:

Indefinite leave -- failure of Secretary of State to specify period of leave in letter granting variation of leave -- whether the appellant was to be deemed to have been granted indefinite leave -- whether the letter was a nullity. Immigration Act 1971 (unamended) s 4(1), sch 2 para 6(1): Immigration (Variation of Leave) Order 1976 para 2: HC 169 para 134.

Held:

The appellant was a citizen of the Seychelles who arrived in the United Kingdom as a visitor. He subsequently applied for political asylum. He was granted asylum but the letter advising him of the decision of the Secretary of State in that regard accidentally omitted to state the period of leave initially granted to him as a refugee. Before the Chief Adjudicator it was argued that in consequence of the failure to specify a period of leave, the appellant should be deemed to have secured indefinite leave. The Chief Adjudicator dismissed the appeal, holding that the letter clearly related to a period of limited leave. The argument was repeated before the Tribunal, when the Secretary of State's representative contended that the letter was a nullity, and the appellant's position was governed by the provisions of the 1976 Variation of Leave Order. Held 1. In the light of s 4(1) of the 1971 Act, the Secretary of State was required to give written notice of leave granted. The letter did not comply with section 4(1) and could not be held to be a grant of limited leave. The letter was a nullity. 2. There were no provisions in the Act analagous to paragraph 6(1) of the second schedule (dealing with leave to enter) which applied to subsequent variations of leave. Thus Tolba had no application to the case and it could not be argued that there was a deemed grant of indefinite leave. 3. The appellant's position during the material period was covered by the provisions of the Variation of Leave Order. 4. Obiter, if on the facts the appellant had not been covered by the provisions of that Order, the letter in question, following Idrish, would have been an authorisation by the Secretary of State for the appellant to remain in the United Kingdom.

Cases referred to in the Judgment:

Secretary of State for the Home Department v Youssef Saleh Mansour [1985] Imm AR 1. Muhammad Idrish v Secretary of State for the Home Department [1985] Imm AR 155. R v Secretary of State for the Home Department ex parte Tolba and ors [1988] Imm AR 78.

Counsel:

K Drabu of the United Kingdom Immigrants Advisory Service for the appellant; A Cunningham for the respondent PANEL: Professor DC Jackson (Vice-President), Mrs AJF Cross de Chavannes JP, Miss MF Applebey CBE JP

Judgment One:

THE TRIBUNAL: The appellant, a citizen of the Seychelles, appeals against a decision of the chief Adjudicator (Mr M Patey MBE) dismissing his appeal against the refusal by the Secretary of State to grant him indefinite leave. The case involves a short but important point on the consequences of a failure to specify the duration of leave in a letter purporting to grant leave to a certain date to a person already in this country. The facts are not in dispute. The appellant arrived in this country on 17 February 1985 and was granted leave to enter for one month presumably as a visitor. On 21 February 1985 the appellant requested asylum and on 13 August 1985 he was recognised as a refugee. It was the notification of this recognition which has caused the uncertainty. The appellant was sent a form letter (GEN 23) informing him that he had been recognised as a refugee. A part of the letter referring to the need to report to the local police was deleted. The letter (without the deletions) reads: "Dear Mr Ah-Time I am pleased to inform you that you have now been recognised as a refugee in the United Kingdom under the United Nations Convention Relating to the Status of Refugees of 28 July 1951 and the Protocol of 1967 thereto and have been granted asylum in the United Kingdom. As a result of this decision it has been decided to grant you leave to remain until . . . It is not our practice to endorse detailed conditions of stay in the passports of persons who have been recognised as refugees. You may regard this letter as your authority to remain in the United Kingdom and you should therefore keep it. Provided that your circumstances remain unchanged, there are unlikely to be any difficulties in granting you further leave to remain to complete the qualifying period (usually 4 years) before indefinite leave to remain can be considered. You are not required to obtain the permission of the Department of Employment or of the Home Office before taking employment, either paid or unpaid, in the United Kingdom. Advice about jobs and training for jobs is provided by the Manpower Services Commission through job centres and employment offices. If you fulfil the normal eligibility and suitability conditions of the Government-sponsored training schemes, you may apply for support. You are free to set up in business, subject to any general regulations governing the business or professional activities concerned. You are eligible to use the National Health Service and social and other services provided by the Local Authorities. You should show this letter if there is any query about your eligibility to use these services. If you satisfy the appropriate qualifying conditions you are entitled to Social Security Benefit (including supplementary benefit), to local education authority mandatory student awards for degree and other designated courses, and to be charged at the recommended home rate of tuition fee for courses of further and higher education in the normal way. Advice may be obtained from the local social security office on social security benefits; from the British Refugee Council, Bondway, London SW9 (01-582-6922) on other aspects of welfare services; and from Citizens Advice Bureaux on general questions. Use of your national passport to travel outside the United Kingdom could prejudice your status as a refugee. A refugee who wishes to travel abroad should apply for a Home Office travel document to the Travel Document Section of the Home Office, Immigration and Nationality Department, Lunar House, (telephone number: 01-686-0333 extension 2345). Yours sincerely" On 6 January 1986 in response to a request from the United Kingdom Immigrants Advisory Service as to the leave granted to the appellant, the Home Office wrote: ". . . Mr Ah-Time was granted leave to remain as a refugee on 13 August 1985, as set out on form Gen 23. As you know it is normal policy to grant leave as a refugee for an initial period of 12 months. Unfortunately, on the letter to Mr Ah-Time the date to which he has leave to remain was omitted, but he has in fact been granted leave to remain until 13 September 1986, with no restriction on his freedom to take employment. Paragraph 2 of the form Gen 23 indicates that this is an initial recognition as a refugee for a limited period, and that further leave to remain on that basis should be applied for before Mr Ah-Time would qualify for indefinite leave to remain . . ." On 21 November 1986 the Home Office sent to the appellant a letter similar to that of 13 August 1985, specifying that the appellant continued to be recognised as a refugee and that leave had been granted until 13 September 1989. The only issue argued before us was whether, because of the omission from the letter of 13 August 1985 of the date until which leave was granted, the appellant was granted indefinite leave. On this matter the Chief Adjudicator said: "The question remains whether the typographical error in the respondent's letter of 13 August 1985 omitting the period for which the present appellant was granted limited leave in itself afforded him indefinite leave to remain here. In determining this issue I have had the benefit not only of the Tribunal's determination in Mansour, cited, but also the later judgments of the Divisional Court in Tolba ao [1988] Imm AR 78; I must accept the respondent's contention that the terminology employed in the letter of 13 August 1985, in particular the sentence in the second paragraph: "Provided that your circumstances remain unchanged, there are unlikely to be any difficulties in granting you further leave to remain to complete the qualifying period (usually 4 years) before indefinite leave to remain can be considered." makes it abundantly clear that only a limited leave had been granted to the appellant. This would seem to have been recognised by the appellant and his representatives in the subsequent applications for the appellant to be granted further leave as a refugee and, latterly, indefinite leave to remain". Mr Drabu argued (as has been the case for the appellant all along) that leave could be only of two kinds -- limited or indefinite. The letter made it clear that the Secretary of State was granting leave and the failure to specify the duration of the limited leave meant necessarily that indefinite leave was thereby granted. For this proposition, Mr Drabu referred us to the well-known judgment of Kennedy J in R V Secretary of State ex parte Tolba and Others [1988] Imm AR 78 and the Tribunal decision in Mansour [1985] Imm AR 1 considered by Kennedy J in his judgment. There is no disagreement that it follows from those cases that if no stamp is placed on the passport from which any duration of leave can be ascertained, it cannot be said that the entrant has limited leave. Mr Cunningham did not seek to challenge the consequences of a stamp in a passport illegible as to duration but sought to distinguish the present case, in that the point at issue is not leave to enter but leave to remain. Mr Cunningham did not ask us however to uphold the Chief Adjudicator's construction of the letter but contended that the letter was a nullity. It followed, said Mr Cunningham, that the appellant's application for asylum made on 21 February 1985 had not been answered and by virtue of the Variation of Leave Order 1976, the leave current when the appellant applied for asylum continued. It would follow from Mr Cunningham's construction that the appellant would remain in this country as a visitor with employment prohibited until the letter of 13 September 1986 granting him "refugee" leave. It is as well to set out the relevant legislative provisions. These are contained in the Immigration Act 1971 section 4(1) and Schedule 2 paragraph 6(1) as it was prior to amendment by the Immigration Act 1988: "4(1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State; and, unless otherwise allowed by this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument". "Schedule 2 6(1) Subject to sub-paragraph (3) below, where a person examined by an immigration officer under paragraph 2 above is to be given a limited leave to enter the United Kingdom or is to be refused leave, the notice giving or refusing leave shall be given not later than twelve hours after the conclusion of his examination (including any further examination) in pursuance of that paragraph; and if notice giving or refusing leave is not given him before the end of those twelve hours, he shall (if not patrial) be deemed to have been given indefinite leave to enter the United Kingdom and the immigration officer shall as soon as may be give him written notice of that leave". It is common ground that the grant of limited leave requires written notice of its duration pursuant to section 4(1). In this case there is no question as to whether or not the duration can be implied from the document granting the leave. The duration is simply not specified. We cannot therefore, with respect, agree with the Chief Adjudicator that the letter of 13 August 1985 was a grant of limited leave. No doubt that is what is intended and no doubt it can be seen from the letter that indefinite leave was not being contemplated. Nevertheless, in our view, it cannot possibly be said that the letter complies with the requirement of section 4(1) of the Act. It follows that there is no grant of limited leave and we did not understand Mr Cunningham to contend that there was such a grant. We agree with Mr Cunningham that the conclusion to be drawn from this differs according to whether the omission occurs in the granting of leave to enter or leave to remain. In respect of leave to enter, paragraph 6(1) provides that where written notice of limited leave was not given within the required time, indefinite leave is deemed to have been granted. No such provision appears relevant to leave to remain. It seems to us necessarily to follow therefore that the letter granting the leave does not comply with section 4(1) and therefore the Secretary of State has not exercised his power to grant leave in the mandatory statutory way. The conclusion that the failure to exercise the power to grant limited leave according to the statute does not result in indefinite leave is underlined by the clear indication in the letter that indefinite leave is a matter for later consideration. Whether a document amounts to the grant of indefinite leave will be matter for construction in each case -- but it will not follow necessarily from the failure to specify duration. We were worried that this conclusion (which seems to us to be inescapable) would lead to the penalising of an applicant through no fault of his own but through the failure of the Secretary of State to comply with a duty imposed on him by statute. If the grant of leave was a nullity, it could mean that an applicant either had no leave or at least that conditions of earlier leave continued to apply. In the present case, as we read it, the appellant's initial leave prohibited him from taking employment but the "refugee" leave which the Secretary of State purported to grant on 13 August 1985 allowed him to take employment. His status also allowed him to take advantage of social and other services, a use to which the visitor would not be entitled. In our view, such potential difficulties are not likely to be overcome through any use of the doctrine of estoppel for it would be difficult to argue that the Secretary of State had power to waive any statutory procedural requirement even if the letter could be construed as such a waiver. We think the answer to the difficulty lies in the letter itself. Although the grant of leave is a nullity, it does not follow that the letter has no effect. First, it is a recognition that the appellant is a refugee and has been granted asylum in the United Kingdom. Therefore he is entitled to the benefits of the refugee Convention to which the letter refers. Secondly, it is expressly stated that the appellant does not need the permission of the Department of Employment or the Home Office to engage in employment or set up in business. Finally, as we have said, the letter indicates that the appellant is entitled to the use of the National Health Service and social and other services. It does not seem to us that the omission of the duration of the leave has any effect on the rest of the letter. In the appellant's case, he was a person in this country with current leave at the date of his application and therefore, as Mr Cunningham said, by virtue of the Variation of Leave Order 1976 that leave would continue until 28 days after the decision on his application. The leave under the Order is a continuation of his leave granted on entry and it is open to the Secretary of State to vary that leave while it is in existence. This we think was the effect of the letter -- to vary the leave granted on entry in respect of the conditions imposed on that leave but not in respect of its duration. In the case of an applicant who applied for asylum after his leave had expired, it seems to us that the letter would amount to an "authorisation" by the Secretary of State to remain in this country (see Idrish [1985] Imm AR 155 at page 168). Again therefore the result would be that the letter would have force in every aspect except the granting of leave.It follows therefore that the appellant was not granted indefinite leave by the letter of 13 August 1985. The appeal is dismissed.

DISPOSITION:

Appeal dismissed

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