Grenda Gillegao v. Secretary of State for the Home Department

GRENDA GILLEGAO v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal

[1989] Imm AR 174

Hearing Date: 8 November 1988

8 November 1988

Index Terms:

Adjudicator -- dismissal of appeal -- request by appellant's representative that a recommendation be made to the Secretary of State to exercise a discretion outside the rules -- whether an adjudicator was precluded from making such a recommendation if the relevant rules contained no reference to compassionate circumstances or a discretion -- whether a refusal to make a recommendation was appealable to the Tribunal -- whether the Tribunal had power to give directions on the making generally of extra-statutory recommendations. Immigration Act 1971 ss 19(1)-(3): Immigration Act 1988 s 5.

Held:

The appellant was a citizen of the Philippines. She had worked as a domestic servant in the United Kingdom, but after four years in such posts an application for extension of leave was refused. On appeal to an adjudicator various arguments based on the immigration rules were advanced on her behalf. None found favour with the adjudicator who dismissed the appeal. He had been invited by the appellant's representative, if all else failed, to make a recommendation in favour of the appellant to the Secretary of State, outside the rules. That he declined to do. In that regard he referred to "the determination in Takeo (5537) where it was not considered appropriate to make a recommendation where the appeal is concerned with rules which do not refer to compassionate circumstances". On appeal to the Tribunal it was argued that the adjudicator erred in his interpretation of Takeo. The provisions of the 1988 Act, which had restricted rights of appeal made it more important that in deserving cases, recommendations should be made: there was a danger of unfairness if different adjudicators adopted widely differing approaches to the making of recommendations: the Tribunal should lay down guidelines to be followed. For the Secretary of State it was argued that issues relating to the making of extra-statutory recommendations were not appealable to the Tribunal. Held: 1. In Takeo the Tribunal had not laid down any general proposition limiting the circumstances in which it might be appropriate to make an extra-statutory recommendation. 2. The Tribunal in any event had no power under the Acts, to give directions to adjudicators on when or how they should make a recommendation when dismissing an appeal. 3. There was no statutory basis on which a failure to make a recommendation alone could ground an appeal to the Tribunal. 4. How and when a recommendation should be made when an appeal was dismissed had to be left to the good sense of adjudicators.

Cases referred to in the Judgment:

Birss v Secretary for Justice [1984] 1 NZLR 513. Lemmington Holdings Ltd v Commissioiner for Inland Revenue [1984] 2 NZLR 214. Kioa and ors v Minister for Immigration and Ethnic Affairs and anr [1988] Australian LR 321. R v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1986] Imm AR 352. R v Immigration Appeal Tribunal ex parte Manshoora Begum [1986] Imm AR 385. Takeo (unreported) (5537)

Counsel:

G Warr for the appellant; A Beasley for the respondent PANEL: RE Maddison Esq (Chiarman), AG Jeevanjee Esq, Miss PG Liverman JP

Judgment One:

THE TRIBUNAL: The appellant is a citizen of the Philippines, born on 20 April 1935. She first arrived in the United Kingdom on 8 August 1980. She came as a domestic servant with an Iranian couple, Mr and Mrs Mozaffari. She was granted leave to enter fror two months with her employers. Subsequently she was employed by another Iranian family, the Rastegars, and then as a housekeeper with a Minister at the United States Embassy. That last employment was covered by leave which expired on 8 November 1984. On 18 October 1984 application was made to the Home Office for her to be granted further leave, she intending to marry a Mr F Kaye in the spring of 1985: in the letter of application it was said that until her marriage she intended to continue to work as a children's nanny. At the date of that application she had left the employment with a member of staff of the United States Embassy: she had, unbeknown to the Home Office, begun work as a nanny with a Mr and Mrs Hoomani. The applciation was inittially refused on 19 September 1985. The application for leave to remain was then refused on different grounds in a revised decision dated 11 December 1986. The first refusal was appealed. After various delays, reviews and the preparation of a supplementary explanatory statement, the appeal, now on the different grounds of refusal was heard by an adjudicator (Mr GS Cobbett). He dismissed it in a determination dated 12 July 1988. On 19 September 1988, after an oral hearing of the application, leave was granted to appeal to the Tribunal. In the course of the extended history of this case, a variety of matters germane to the appellant's immigration history and status have been canvassed. First, it has been said that the application for variation of leave for marriage in October 1984 was also, separately, an application for variation to remain as a nanny which had not been considered. Secondly, and this was the basis of the first refusal (on 19 September 1985), it was asserted that the appellant was entitled, after four years in approved employment, to a grant of indefinite leave. Thirdly, on the basis of what was claimed to be an illegible stamp in her passport, it was asserted that the appellant had in any event secured indefinite leave to remain. Finally, it was submitted that in the events which had happened -- and to those we return below -- there were strong compassionate grounds on which a recommendation should be made to the Secretary of State to exercise a discretion outside the rules -- that is, if all else failed. Mr Warr before us deployed his arguments with his customary skill and elegance. In the event, however, he did not advance those arguments very far except in connection with the last issue. We deal first of all, therefore, with the propositions that relate to the immigration rules. The adjudicator found as a fact that none of the stamps in the appellant's passport was illegible or indeed indistinct in any way such as to allow her to claim indefinite leave by operation of law. We inspected the passport and agree with the adjudicator on that issue. The Home Office has contended that the periods of leave spent as a domestic servant with the Mozaffari and Rastegar families were grants made outside the ambit of the immigration rules: that was also the basis on which she had been employed as a housekeeper with a member of staff of the United States Embassy. The adjudicator considered that that period of employment came within paragraph 33(a) of HC 169. Whatever is regarded as the true basis of that particular period, there can we think be no doubt that her employment as a domestic servant in private households, those of the two Iranian families, was leave granted exceptionally outside the rules. On no view, in our opinion, can she be said to have been in approved or permit-free employment as those terms are used in the immigration rules for four years, so as to attract the provisions of paragraph 133 of HC 169. Her work does not qualify her for settlement after four years as there provided. The letter in which the application for variation of leave was made in October 1984 was in these terms: "My fiancée, Miss Grenda G Gillegao, born 20.4.35 in San Remigio, Philippines, is asking for an extension of landing conditions until the Spring of 1985 when we shall be married. Grenda Gillegao came to this country on 8th August, 1980 and has been granted leave to remain in the United Kingdom on an annual basis. She is currently employed as a nanny by Mrs Hoomani of 17, Frognal Lane NW3 and she proposes to remain in her work with her present family until our marriage. I make this application to you in view of her language difficulties. We would be grateful if the passport and the Aliens Registration Certificate could be returned to Miss Gillegao at 17, Frognal Lane, London, NW3 after they have been processed." The adjudicator concluded that was not an application for leave to remain as a nanny, simply an application for leave to remain for marriage, with an indication of what the appellant intended to do until marriage. The appellant was already employed by Mrs Hoomani, who had engaged her in September 1984 when her post at the Embassy was terminated. Technically the appellant ought not to have taken that new employment without the agreement of the Home Office, but no point has been taken against her on that account: the period of time that elapsed before the application was made was minimal and there is no suggestion in this case we think, of mala fides on the part of the appellant. The supplementary explanatory statement records the approach to that letter as adopted by the Home Office. It reads: "The Secretary of State found that this application was clearly and specifically for an extension of leave to remain until Spring 1985, when the couple would be married. The letter did not, therefore, constitute an application for leave to remain as a nanny but merely informed the Home Office that the appellant had taken employment as a nanny without informing the Home Office. The Secretary of State decided that there was no evidence that the marriage to Mr F Kaye would take place at an early date, and therefore refused the application of 18 October 1984 on 11 December 1986 under paragraph 123 of HC 169." On a careful re-reading of the letter we are in agreement with that view. We think that the letter was written on the genuine assumption that in the light of her previous work, such a temporary occupation would be unexceptionable. At most it would be an application for leave to remain for marriage with employment with the Hoomanis approved. In the events which have happened we do not think that the point is of any importance, but if it is, we would base our view essentially on the fact that the letter deals only with one specific period of time -- the period up to the date of the intended marriage; to that marriage the work to be undertaken was a subordinate and related activity -- evidence perhaps that during the period the appellant would not fall a charge on public funds because she would be able to maintain herself. Certainly when the nature of the principal application is borne in mind, it could not be two different applications in the alternative. The refusal of that application was made on 11 December 1986. In the intervening periods various events occurred. By the date of decision it was quite clear that the marriage was not going to take place. On that basis it seems that the refusal was in accordance with the rules. During that period, however, the appellant's life was radically changed. She was the victim, as a pedestrian, of a serious road traffic accident. That accident occurred on 14 Janaury 1985. She suffered fractures of the left tibia and fibula and right scapula: she had a serious ligamentous injury to the right knee and a head wound which fortunately was superficial. She was in hospital from 14 January to 22 March 1985: she was re-admitted for further surgery and bone grafting in connection with the left tibia in September 1985. Then in March 1985 she had to have a further operation on her right knee, to remove a benign cystic lesion, a result of the original injury to that joint. This was her medical history while the application of October 1984 was under consideration. Mr Beasley said that enquiries in relation to that application were protracted. Mr Kaye was approached but enquiries addressed to him were fruitless. That was not surprising because apparently when the appellant was injured, Mr Kaye broke off the the engagement. Mr Warr told us that the only people who stood by the appellant were Mr and Mrs Hoomani. She was unable, clearly, to perform all her duties with them for a considerable time, but they did not abandon her. It is not surprising that since she recovered, more or less, she has continued to work for them and a strong bond has arisen between them and the appellant. For that reason the adjudicator was urged by Mr Warr to make a recommendation if he found against the appellant on the issues raised in the appeal. That the adjudicator did not do. He ended his determination thus: "As regards compassionate circumstances in this case Mr Heale [the Secretary of State representative before the adjudicator] referred me to the determination in Takeo (5537) where it was not considered appropriate to make a recommendation where the appeal is concerned with rules which do not refer to compassionate circumstances. Accordingly I make no recommendation." Mr Warr was very unhappy about that passage and based on it a number of wide-ranging submissions. The implication, he thought was that some adjudicators might never make recommendations in certain circumstances and others perhaps, in no circumstances at all. He said that it was, it seems, acknowledged Home Office practice always to act on recommendations, or so it had been said on high Parlimentary Authority. The 1988 Act which restricted rights of appeal in deportation cases meant that compassionate circumstances might well never be considered by an adjudicator: if they were to be considered -- and again it was on public record that the intention was that at some point they should be considered, (Editorial: This submission is based on the statements made by The Right Hon Earl Ferrers, Minister of State, the Home Office in the debate on the 1988 Immigration Act in the House of Lords. The background is succinctly and helpfully set out by Professor DC Jackson in his commentary on the 1988 Act in Current Law Statutes Annotated (London, 1988), where full references to the various debates in Hansard will also be found). Then it would be necessary for adjudicator in appropriate cases, to make recommendations on occasions where no discretion was incorported in the rules. If some adjudicators were as a matter of policy, not prepared to make recommendations while others were, unfairness would be built into the appellate system and there would be a significant difference in the effective consequences of an appeal depending upon which adjudicator heard it, irrespective of the merits or facts of the case. He thought that the Tribunal ought to give guidance on the issue, particularly in the light of the 1988 Act. Mr Beasley acknowledged that the statements on the records as to the consideration of compassionate circumstances could lead to complications in some cases. He did not think that the present case was the most suitable for consideration of those matters. If the appellant ever did become the subject of deportation proceedings it seemed prima facie that her case would still attract a right of appeal. In any event, he challenged the supposition that issues relating to recommendations outside the rules were appealable to the Tribunal. Mr Warr, if we understood him correctly sought to establish his case on the general principle of the obligation of appellate authorities to act fairly. That proposition is not of course in dispute. What is uncertain is the extent to which, if at all, that principle of fairness extends to establishing rules for adjudicators making recommendations which by their nature are outside the Immigration Act and the immigration rules. Has the Tribunal any power to do that? In part the issue depends on the meaning of "the law", in section 19(1)(a) of the 1971 Act, which so far as relevant reads: ". . . an adjudicator . . . shall allow the appeal if he considers that the decision or action agianst which the appeal is brought was not in accordance with the law or any immigration rules applicable to the case." The section goes on to indicate that an adjudicator should allow an appeal where the decision or action involved the exercise of a discretion and "that . . . discretion should have been exercised differently". Discretion, in that section is clearly, however, discretion within the rules; that was not disputed before us. Section 19(2) likewise makes that clear, for it reads: "19(2) For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of subsection (1)(a)(ii) no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so." Section 19(3) reads: "19(3) Where an appeal is allowed, the adjudicator shall give such directions for giving effect to the determination as the adjudicator thinks requisite, and may also make recommendations with respect to any other action which the adjudicator considers should be taken in the case under this Act; and, subject to section 20(2) below, it shall be the duty of the Secretary of State and of any officer to whom directions are given under this subsection to comply with them." That section, however, is limited by the words "where an appeal is allowed": the clause in the middle of the sentence "and may also make recommendations with respect to any other action which the adjudicator considers should be taken in the case under this Act" (our emphasis) cannot we think have any reference to cases where the appeal is dismissed and recommendation is made which, it follows, suggests to the Secretary of State that he should depart from the rules. Mr Warr relied on part of the speech of Lord Bridge in Bakhtaur Singh for the proposition that "the law" meant "the law generally": the passage reads: "Mr Laws' argument encounters its final and, to my mind, insurmountable hurdle, in a consideration derived from the general law. On classic Wednesbury principles (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), in exercising his discretion whether to implement a court recommendation for deportation or whether to decide to make a deportation order against an overstayer, the Secretary of State is bound to take account of all relevant considerations. If, therefore, some interest of third parties which is known to the Secretary of State and which would be adversely affected by deportation is in truth relevant to the proper exercise of the discretion, a decision made without taking it into account would in any event be open to challenge by judicial review and consequently would be open, in the case of an overstayer, to appeal under section 19(1) as being "not in accordance with the law" quite apart from the immigration rules. It follows that to construe the rules in the sense for which the appeal tribunal contends would not only conflict with the general law but would also be ineffective to restrict the relevant matters which the appellate authorities may, and indeed must, take into consideration. " We readily accept that that passage contains a difficulty, for we would not expect a statutory tribunal such as the Immigration Appeal Tribunal to be endowed with any general supervisory or Wednesbury jurisdiciton: it would be more normal for such a Tribunal to hve a strictly limited jurisdiction restricted to its statutory powers. That indeed was the view of Simon Brown J in ex parte Manshoora Begum [1986] Imm AR 385 at p 389 when, in striking down part of an immigration rule as unreasonable, he observed of counsel's argument on that issue "it is not one which could have been advanced before the Tribunal. Only the High Court has power under its supervisory jurisdiction to strike down such a provision. The Tribunal, having construed it, had simply to apply it, however unreasonable and unfair they regarded it to be." There is no need to endow the Tribunal with statutory power to give it jurisdiction to ensure that proceedings before adjudictors are conducted fairly, because every judicial body has an obligation to act fairly. That is different from suggesting that the Tribunal has power to direct adjudicators on how they should approach making recommendations outside their statutory powers, even if in consequence and through different approaches by different adjudicators, overall there appears to be some significant variation in practice, with consequent apparent unfairness to appellants. We say "apparent unfairness" because except in the most obvious and clear-cut causes there must inevitably be different views on cases and in any event because no case on precisely the same facts is ever before two adjudicators it can never be said with certainty what would occur if another adjudicator or Tribunal had determined a particular case. Mr Warr deployed his arguments as always with great skill. He buttressed them not only with reference to Bakhtaur Singh but also by drawing our attention to three Commonwealth cases: Birss v Secretary of Justice [1984] 1 NZLR 513, Lemmington Holdings Ltd v Commissioner for Inland Revenue [1984] 2 NZLR 214 and Kioa and ors v Minister for Immigration and Ethnic Affairs and anr [1985] Australian LR 321. With respect we did not find those of assistance in determining the question of the extent of the Tribunal's powers to give directions on the approach to extra-statutory recommendations. Doubtless the issue will be argued in the future as the effect of the 1988 Act is felt: it may be that guidance will be given by the High Court. On our present view, however, we conclude that we have no power to give directions to adjudicators on when or how they should give a recommendation outside the rules when they dismiss an appeal. We would add, however, that on our reading of Takeo (5537), the Tribunal in that case was not laying down a general proposition that where an immigration rule did not contain a discretion or reference to compassionate circumstances, no recommendation should ever be made. If we are right in what we have written above, it had no power to do that even if it were minded to do so. Takeo was as Mr Warr (who was in the case) accepted, very unusual on the facts, and the Tribunal seem to us to be saying no more than that in that case it did not consider it appropriate to make any recommendation. There is no evidence that any adjudicator has made it known that he will never make a recommendation. We cannot envisage circumstances in which judicial officer would be so unwise so as to fetter his discretion in that way and thus bind himself for the future. Within the limits of good sense, however, it seems to us that by its very nature, whether or not an adjudicator, after considering all the circumstances elects to go beyond his strict statutory duty and make a recommendation when he dismisses an appeal, must be left to his discretion. We can see no basis on which a decision not to make a recommendation in a particular case would per se be appealable to the Tribunal, but then in practice it is perhaps unlikely that would be the sole ground put forward as the basis of an application for leave to appeal. Returning to the case of Miss Gillegao we have noted above that in our view the adjudicator came to the correct conclusions on the immmigration rules relevant to the applications she made to the Secretary of State for variation of leave and correctly categorised those applications. The appeal is dismissed. We have nonetheless very considerable sympathy for the appellant. She suffered a very serious accident in which there was no contributory negligence by her. It does not follow that because serious injuries occur there will be serious lasting disabilities, but in this case it is clear that she continues to suffer significantly from the consequences of that accident, quite apart from the sad effect it had on her private life, for it seems that Mr Kaye abandoned all interest in her after she was injured. We think it would be more difficult for her to re-establish herself in the Philippines in the events which have happened. In so far as she has any support it is dervied now from her employer in the United Kingdom. In all the circumstances we would strongly urge the Secretary of State to review the case outside the rules and give the appellant leave to remain.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Sturtivant & Co, London W1.

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