Somasundaram and Others v. Entry Clearance Officer, Colombo

Somasundaram and Others v Entry Clearance Officer, Colombo

Immigration Appeal Tribunal

[1990] Imm AR 16

Hearing Date: 9 August 1989

9 August 1989

Index Terms:

Jurisdiction -- appellate authorities -- application for entry clearance refused -- applicants' cases fell outside the provisions of the rules -- whether appellate authorities had jurisdiction to review the decision -- the distinction to be drawn between cases that come within the 'on entry' rules and cases that come within the 'after entry' rules. Immigration Act 1971 ss 14(1), 19, 20: HC 169 (as amended) paras 48, 50, 76.

Settlement -- leave to remain exceptionally outside the rules -- whether a person so permitted to remain is to be regarded as admitted for settlement.

Held:

The appellants were the wife and children of a Tamil, of Sri Lankan nationality: he had been given exceptional leave to remain in the United Kingdom. They applied for entry clearance to join him. The application was refused. The entry clearance officer stated that there was no provision in the rules for their admission. The decision was appealed. The adjudicator held that he had no jurisdiction to review the refusal of the Secretary of State to exercise his extra-statutory discretion. His dismissal of the appeals on that basis was appealed, and it was argued inter alia that the appellants could qualify under the rules and the Secretary of State's decision was not in accordance with the law because he had not taken account of the European Convention on Human Rights. Held: 1. The appellate authorities had jurisdiction to review the exercise of discretion where there was no applicable immigration rule. It did not however have jurisdiction to review a refusal to depart from an immigration rule, that being excluded by s 19(2) of the 1971 Act. 2. Under paragraph 76 of HC 169 (as amended) persons were to be refused leave to enter if they did not qualify under the provisions of the rules. Thus in 'on entry' cases, refusal to admit outside the rules was necessarily refusal to depart from the rules. Such cases were within s 19(2) of the Act. There was no parallel provision for 'after entry' cases. 3. Contrary to counsel's submissions, the sponsor could not be held to have been admitted for settlement when given exceptional leave to remain. Thus his dependents had no claim to admission under paragraphs 48 and 50 of HC 169 (as amended). 4. There was no evidence that in his consideration of the case the Secretary of State had failed to give any consideration to the European Convention on Human Rights and thus no evidence that the decision was "not in accordance with the law" as specified in s 19(1)(a) of the 1971 Act, on the assumption that the matter was relevant. 5. The appeals would accordingly be dismissed.

Cases referred to in the Judgment:

Lars Olaf Wirdestedt v Secretary of State for the Home Department (unreported, CA, 6 December 1984). Surendra Chundawadra v Immigration Appeal Tribunal [1988] Imm AR 161. Dzexter (unreported) (4980). Bagai (unreported) (5473). Rahman (unreported) (6314).

Counsel:

Miss F Webber for the appellants; A Gammons for the respondent PANEL: DL Neve Esq (President) GW Farmer Esq (Vice-President), Professor DC Jackson (Vice-President) Judgment By-1: DL NEVE ESQ (P)

Judgment One:

DL NEVE ESQ (P): (Reading the Determination of the Tribunal). The appellants are citizens of Sri Lanka. They appeal to the Tribunal against the determination of the Chief Adjudicator (Mr M Patey, MBE) dismissing their appeal against the refusal of the entry clearance officer in Colombo to grant them entry clearance. They applied for entry clearance to enable them to join Mr Somasundaram Sivapathasundaram for settlement in this country. He is the husband of the first appellant and the father of the remaining four. Mr Somasundaram Sivapathasundaram had been admitted to this country in May 1985 and had been given exceptional leave to remain here as he was a Tamil. The appellants made their application on 29 May 1986 and it was refused on 20 May 1987 in the following terms: "You have applied for visas with a view to admission to the United Kingdom as the dependants of Mr Somasundaram Sirapethasundaram who has leave to enter the United Kingdom on an exceptional basis, but there is no provision for this under the Immigration Rules. Moreover the Secretary of State is not satisfied that you are suffering any exceptional hardship which might allow your applications to be considered outside the Immigration Rules." When the appeal went before the adjudicator there was no dispute as to the facts. Counsel for the appellants submitted that the adjudicator had jurisdiction to review the entry clearance officers's decision, and urged him to do so in view of the claimed suffering undergone by the appellants. The Home Office presenting officer submitted that the adjudicator's jurisdiction was limited to determining whether or not the appellants qualified for admission within the immigration rules. He submitted that they did not do so, and that the adjudicator's jurisdiction was therefore limited to the possibility of making a recommendation to the Secretary of State in the appellants' favour. It was conceded by the appellants' counsel before the adjudicator that the appellants' applications did not fall for consideration under any immigration rule, but it was claimed that the adjudicator had jurisdiction to review the entry clearance officer's decision, and the case of Dzexter (4980) was quoted in support of this claim. Dzexter was a case involving persons who were already in this country and who had been granted exceptional leave to remain, but not under any immigration rule. The Tribunal held that they had a right of appeal conferred upon them by section 14(1) of the Immigration Act 1971. Mr Patey distinguished the case of Dzexter and records in his determination: "I appreciate the ratio of the Tribunal's determination in Dzexter, cited, but I am of the opinion that the present case is distinguishable in certain fundamental respects. In that case the previous Adjudicator, incidentally myself, having allowed the appeal against a decision to deport under section 3(5)(a) of the Act, made a direction under section 19(3) that the appellants be granted leave to remain for a further 12 months. The Secretary of State did not appeal against my determination and was therefore required by law to comply with my direction; accordingly in that case he was not exercising any discretion in favour of the appellants outwith or, indeed, "inwith" if there is such an expression, the law and immigration rules. The Act and immigration rules specify the categories of persons resident in this country who may be joined by their dependent relatives. Any dependent not falling within those categories is inadmissible under the immigration rules and should an immigration officer give leave to such a person to enter the United Kingdom he would be acting in contravention of those rules. It is generally acknowledged that the Secretary of State has an extra-statutory discretion to act outside the published immigration rules and authorise any person who does not so qualify for admission to be given entry. I cannot accept Counsel's contention that the Secretary of State's refusal to exercise his extra-statutory discretion outside the immigration rules is judiciable before the Immigration Appeals Authority. In these circumstances I must find that the respondent's decision is in complete accord with the law and immigration rules and these five appeals must be dismissed." The appellants' appeal is from a refusal of entry clearance and hence, the appeal falls within section 13(2) of the Immigration Act 1971. The powers of the appellate authorities on review are set out in section 19 of the Act (adapted to the Tribunal by section 29). So far as relevant, sections 19(1) and (2) read: "19(1) subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act -- (a) shall allow the appeal if he considers -- (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal. (2) . . . 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." With respect, we cannot agree with the Chief Adjudicator that these provisions exclude jurisdiction of the appellate authorities in respect of decisions taken outside the immigration rules -- the only exclusion is that expressed in section 19(2). Neither can we agree that Dzexter does not stand for the proposition that where there is no applicable rule, there is jurisdiction to review the exercise of discretion (see also Rahman (6314)). In Dzexter the decision under appeal was not the question of granting of leave following the direction (as the Chief Adjudicator seems to have thought) but the extension of that leave. It is to be noted that in Dzexter the Tribunal followed the clear expression in the Court of Appeal in Wirdestedt (6 December 1984) that if there was no rule applicable section 19(2) would have no application. If that exclusion has no application it seems to us that the appellate authorities have jurisdiction. On the other hand, if the decision in substance is the refusal to depart from a rule, the appellate authority's jurisdiction is excluded by section 19(2). Miss Webber accepted that this being an "on entry" case, HC 169 paragraph 76 applies. So far as relevant that rule reads: "76. A passenger who does not qualify for admission under the foregoing provisions of these rules is to be refused leave to enter . . . " The Chief Adjudicator's attention was not drawn to this rule. The rule (which is not reflected in the "after entry" rules) means that in an "on entry" case, refusal to admit outside the rules is necessarily refusal to depart from the rules (see eg Bagai (5473)). Faced with paragraph 76, Miss Webber first argued that (contrary to submissions hitherto made) the decision was within the rules. In her submission the Tribunal should take judicial notice that persons who have been in this country for a certain period of time may be granted indefinite leave to remain. The sponsor had been granted (albeit exceptionally) leave to remain and as such could properly be considered as somebody who had been admitted with a view to settlement. His dependants therefore, in her submission, qualified for admission under paragraphs 48 and 50 of HC 169 (as amended). As to this, Mr Gammons pointed out that by no stretch of the imagination could it be held that the sponsor had been granted admission with a view to settlement. He had been granted temporary admission outwith the rules (as had indeed been admitted before the adjudicator) in order to see how the situation in Sri Lanka developed. In our view the evidence comes nowhere near supporting the contention that the sponsor was granted leave to remain with a view to settlement -- if anything rather the reverse. It was conceded before the adjudicator that he had been granted leave to remain outwith the rules, and in our view this was obviously for a temporary purpose. This disposes of Miss Webber's first submission. Miss Webber submits secondly that we have jurisdiction to allow the appeal because section 19(1)(a)(i) of the Act empowers us to do so if the decision or action against which the appeal is brought was not in accordance with the law. Miss Webber argued that the decision under appeal was not in accordance with the law as the Secretary of State had failed to have regard to article 8 of the European Convention on Human Rights when exercising his discretion. That article, as is well-known, deals with respect for family life and, said Miss Webber, is clearly aimed at family unity. As Miss Webber further said, where criteria in immigration issues are clearly set out in English law, there is no power to refer to the Convention on Human Rights or any other Convention (see R v IAT ex parte Chundawadra [1988] Imm AR 161). However there may be consideration of Conventions in the exercise discretion (see Rahman (6314)). On the basis that the European Rights Convention and the principle of article 8 is relevant, unlike the case of Rahman there is no evidence that either the principle or the Convention was not fully considered by the Secretary of State. The weight to be given to the factor of family unity in the exercise of the discretion is, as we have said, a matter which is not reviewable. The appeal of each appellant is consequently dismissed.

DISPOSITION:

Appeals dismissed

SOLICITORS:

For the appellants: Winstanley-Burgess London EC1.