Naved Masud v. Secretary of State for the Home Department

Naved Masud v Secretary of State for the Home Department

Immigration Appeal Tribunal

[1989] Imm AR 538

Hearing Date: 8 June 1989

8 June 1989

Index Terms:

Work permit -- application for extension -- sent by employer to Department of Employment and not to Home Office -- applicant's limited leave had expired by date application received by Home Office -- application refused with no right to appeal -- Secretary of State subsequently initiated deportation proceedings against the appellant -- whether there was a timeous application for variation of leave to the Department of Employment -- whether that application not decided, so as to preclude deportation proceedings. Immigration Act 1971 ss 3, 14: Immigration Act 1988 s 5: HC 169 para 116.

Jurisdiction -- appellate authorities -- whether the appellate authorities had power to over-ride the provision of the Acts and the rules where an appellant's predicament was brought about solely by the delict of his agent.

Held:

The appellant was a citizen of Pakistan who had been granted a work permit valid until 31 December 1985: he was trainee accountant. Application for an extension of the permit was made in time by his employers. The application however was made to the Department of Employment and not as required (and stated on the relevant forms), to the Home Office. When application was made to the Home Office it was refused: by the time that application was made the appellant's leave had expired and the refusal attracted no right of appeal. He did not leave the United Kingdom. In due course the Secretary of State initiated deportation proceedings against the appellant as an overstayer. In that regard his rights of appeal were restricted by s 5 of the 1988 Act. An appeal against the notice of deportation was dismissed by an adjudicator. Before him and before the Tribunal it was argued that although the application should have been made to the Home Office nevertheless the application to the Department of Employment was one validly made within the appellant's current leave: it should therefore be decided and would attract a right of appeal if refused. There was an application outstanding and in those circumstances the Secretary of State had no power in law to initiate deportation proceedings. In any event, following Al-Mehdawi the appellant should not be prejudiced by the errors of his employers. Held: 1. Although in such cases the Department of Employment were carrying out an immigration function, the decision maker, following Pearson, was the Secretary of State for the Home Department. There was no compelling distinction between the decision maker and the person to whom application could be made. 2. There was thus no valid application made within the period of the appellant's leave. No application was therefore outstanding at the date on which the Secretary of State decided to initiate deportation proceedings. It followed he had the power in law to initiate those proceedings. 3. The appellate authorities had no power to override the provisions of the Act or the rules so as to remedy prejudice suffered by an appellant by the negligence of others.

Cases referred to in the Judgment:

Pearson v Immigration Appeal Tribunal [1978] Imm AR 212. Bernstein v Immigration Appeal Tribunal and Department of Employment [1988] Imm AR 449. Secretary of State for the Home Department v Al-Mehdawi [1989] Imm AR 125.

Counsel:

R Scannell for the appellant; D Wilmott for the respondent PANEL: DL Neve Esq (Chairman), Mrs A Weitzman JP, RE Hunte Esq JP

Judgment One:

THE TRIBUNAL: The appellant is a citizen of Pakistan, who appeals to the Tribunal against the determination of an adjudicator (Mr JS Brodwell) dismissing his appeal against his decision of the Secretary of State to make a deportation order against him under section 3(5)(a) of the Immigration Act 1971. There is really no dispute as to the facts of this case. The appellant was granted leave to enter this country for six months as a visitor on 18 July 1982. He was subsequently granted extensions of his permitted leave to enable him to remain in this country as a trainee accountant until 31 December 1985. On 17 December 1985 his employers, Price Waterhouse and Company, wrote to the Department of Employment as follows: "I understand that Mr Masud's work permit expires on 31 December 1985. I confirm that he sat the PEI examinations on 5, 6, and 7 December 1985, the results of which are expected to be published towards the end of January 1986. In the circumstances, perhaps you would be kind enough to confirm your approval to extend Mr Masud's permit until say mid February. This will provide us with enough time to consider the position were he to be referred in one paper. I enclose Mr Masud's passport and certificate of registration." By letter dated 20 December 1985 the Department of Employment replied as follows: "I am returning herewith Mr Naved Masud's passport which you recently sent to us in connection with the application for training/extension of training. The Department does not require passports for this purpose. Please forward the passport, employment certificate and police registration certificate with a covering letter to the Home Office, Immigration and Nationality Department, Lunar House, Wellesley Road, Croydon CR9 2 By. This procedure is outlined in paragraph 10 on the reverse of the work permit." Paragraph 10 reads as follows: "Permit holders wishing to continue in employment beyond the terminal date of the period for which leave to enter has been granted by the Immigration Officer, should make application about one month before such date to the Under-Secretary of State, Home Office, Lunar House, Wellesley Road, Croydon CR9 2 By, marking the envelope in the bottom left-hand corner "Work Permit". Permit holders should forward their permit, passport and in the case of foreign nationals their Police Certificate of Registration with the application. The application should also be accompanied by a supporting letter from the employer." The letter quoted above of 20 December was unfortunately damaged in the post and did not reach Price Waterhouse until 23 January 1986. Thereafter Price Waterhouse made application -- as they should have done in the first place -- to the Home Office, but of course by that time the appellant's limited leave to be here had expired and he consequently had no right of appeal against any refusal. The application was in fact refused on 16 June 1986. A further application for an extension was made but was refused on 23 June 1987, again without any right of appeal. The appellant did not leave the country and the Secretary of State consequently, on 21 October 1988, made the decision to deport him against which he appealed to Mr Brodwell. His right of appeal was restricted, by virtue of section 5 of the Immigration Act 1988, to the ground that on the facts of his case there was in law no power to make the deportation order for the reasons stated in the Notice of Decision. It was argued before Mr Brodwell that an application for an extension of the appellant's stay had been made, albeit to the Department of Employment, within the appellant's limited leave to be here, and before such an application had been determined a deportation order could not be made. However the adjudicator found that as the application had been made to the wrong Government department it was not a valid application and the later application which was received by the Home Office was out of time, being received after the expiry of the appellant's limited leave. It was also urged before the adjudicator that the failure to lodge the application in time was due to no fault of the appellant himself but of his employers. The fault of his employers should not be held against the appellant and thus the application should have been regarded as having been lodged in time. The case of Al-Mehdawi [1989] Imm AR 125 was quoted in support of this argument. Mr Brodwell also rejected this submission, but found that even if he were to accept it, it could not avail the appellant because "looking at the state of the law and the state of the facts at the date of the deportation order and for that matter, at the date of this hearing, there was no legal bar to the Secretary of State making the deportation order. On that basis, there is no substance in the allegation that on the facts of the case there was in law no power to make the deportation order and therefore by virtue of Section 5 the appeal must fail". However he granted leave to appeal to the Tribunal. Upon the appeal coming before us two grounds of appeal have been filed. They are: "1 The Adjudicator failed to accept that an application for leave to remain in the UK which was sent by error to the Department of Employment (instead of the Home Office) should still entitle the Appellant to a right of appeal. Failure to grant that right of appeal represents a reason in law preventing the Home Office from making a deportation order. 2 The sending of the letter of request for an extension to the wrong government office -- the same having been sent by the Appellant's employer -- created a flaw in the decision making process which should not have been permitted to prejudice the Appellant's immigration position." Mr Scannell informed us that he relied principally upon the first of these grounds. We were referred to the case of Pearson [1978] Imm AR 212. In that case an Australian girl who had been admitted as a visitor wished to be allowed to take employment. Her application had not been approved by the Department of Employment and had consequently been refused by the Secretary of State for the Home Office under paragraph 5 of HC 80. The appellant sought to mount her appeal, inter alia, upon the ground that the Secretary of State should have exercised his discretion differently and that the Secretary of State in her case was the Secretary of State for Employment. However the Court of Appeal (at page 223) held "We have no doubt that it is the Home Secretary to whom Parliament in the Immigration Act 1971 gave control of immigration, and in particular the power conferred by s 4(1). We have no doubt also that it was his decision of 7 July 1976 which the applicant was challenging. It was based on the decision of the Department of Employment which she would have liked to have reversed. But it did not, and does not, matter to her whether that Department reverses its own decision or whether the Home Secretary overrides it. If she could stay and work without a work permit, or if the Home Office could grant her one in spite of the refusal of the Department of Employment or indeed if the adjudicator could do so -- she would be equally happy. But the statute gives the Home Secretary the last word and it was that which she wanted the adjudicator to review." Mr Scannell seeks to distinguish the Pearson case from the instant case because, although he concedes that the appellant's application had to be determined by the Home Secretary's department (the point at issue in the Pearson case), he argues that this does not connote that such an application has to be made to him. He points out that the Employment department is effectively the department which makes the decision and therefore logically it is the department to which one would expect application to be made. He draws an analogy with entry clearance officers who are employed by the Foreign Office and to whom applications for entry clearance are made. He also drew our attention to the case of Bernstein [1988] Imm AR 449 in which the Court of Appeal held that in administering the work permit system the Department of Employment is carrying out an immigration function. We have considered Mr Scannell's submissions in this regard. We appreciate that, as the Court of Appeal found, the Department of Employment are performing an immigration function in cases such as this. However we part company from Mr Scannell when he invites us to find that the Department of Employment are effectively decision makers in cases such as this. As the Court of Appeal found in Pearson "it did not, and does not, matter . . . whether that Department (the Department of Employment) reverses its own decision or whether the Home Secretary overrides it . . . the statute gives the Home Secretary the last word . . ." We do not find the distinction between the person who makes the decision (as in Pearson) and the person to whom application can be made to be a compelling distinction. If it is, it rather militates against the appellant because until an application is received by the proper Secretary of State it cannot even begin to be considered. For these reasons we agree with the adjudicator's finding that no valid application was made within the time permitted by the Procedure Rules, and accordingly that there was no application pending such as would render a decision to make a deportation order unlawful or of no effect. Finally, with regard to the Al-Mehdawi point to the effect that the appellant should not suffer from the negilgence of his agents when he himself is free from blame, this Tribunal is a creature of statute and the only jurisdiction which we possess is that conferred upon us by the Immigration Acts and the Procedure Rules. Unless any particular rule or rules is or are found to be ultra vires the Act our jurisdiction is limited by them. Thus whilst the Court of Appeal -- or indeed the Divisional Court -- can grant relief in cases such as Al-Mehdawi the Tribunal has no jurisdiction to do so. We do not particularly regret that this is so in this case because we note that two subsequent applications by the appellant were considered by the Secretary of State and refused. For these reasons this appeal is dismissed.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Howard Cohen & Co, Leeds, for the appellant

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