Aleem v. Secretary of State for the Home Department

ALEEM v SECRETARY OF STATE FOR THE HOME DEPARTMENT

IMMIGRATION APPEAL TRIBUNAL

[1991] Imm AR 360

Hearing Date: 27 February 1991

27 February 1991

Index Terms:

Deportation -- overstayer -- whether Secretary of State had the power to take the decision he had taken -- whether there had been a valid notice of refusal of variation of leave -- admission as husband -- leave to enter for twelve months -- subsequent application by wife for extension of leave of only one year -- granted extension for two years -- no notice of rights of appeal sent with notice of that variation -- whether the grant of extension of two years in the circumstances was "not less favourable" . . . than that which was requested" -- whether it was material that the application had been made not by the appellant himself but by his wife. Immigration Act 1971 (as amended) ss 3(5)(a), 14: HC 169 (as amended by HC 503) paras 46, 47: Immigration Appeals (Notices) Regulations 1984 rr 3(1), 3(3), 4.

Held:

The appellant had been admitted to the United Kingdom as the husband of a woman settled here. He was initially given twelve months' leave. His wife then wrote on his behalf to the Home Office, asking for a further twelve months' leave, stating that she wished to have time "to get to know him well before you issue him with permanent stay". After consideration, the appellant was granted an extension of leave of two years. The marriage broke down and, in the fullness of time the Secretary of State decided to initiate deportation proceedings against the appellant, pursuant to s 3(5)(a) of the 1971 Act (as amended). An appeal was dismissed by an adjudicator. By the time the appeal came before the Tribunal it was common ground that the jurisdiction of the appellate authorities was limited. It was argued by counsel that the notice by which the two years' extension of leave had been given had been invalid. It had not been accompanied by a notice informing the appellant of his rights of appeal: on the facts, the extension of leave granted was not more but less favourable than that which had been sought. If only twelve months had been given instead of two years, then when the matter was reviewed, the marriage might not have broken down and the appellant would have secured indefinite leave. It followed that the notice should have been accompanied by advice on rights of appeal: it was not and hence was invalid. Morover, the application had not been made by the appellant himself and hence the decision was not "taken at the request of the person to whom notice is given", and for that reason likewise, r 4(2) of the Notices Regulations did not apply. Held: 1. Regulation 3 of the Notices Regulations allows for applications to be made either in person or by a representative: it was illogical to seek to distinguish between those two categories in the context of regulation 4(2). 2. The distinction in regulation 4(2) implied by the words "if the decision was taken at the request of the person to whom the notice was given" was a distinction between a decision made on an application and a decision taken by the Secretary of State of his own motion, for example a decision to curtail leave. 3. Regulation 4(2) distinguished between the period granted and the period requested. 4. There was no requirement that the Secretary of State grant indefinite leave to a spouse at the end of twelve or twenty-four months, if he were uncertain of the stability of the marriage. 5. In the event, and bearing in mind the discretionary power of the Secretary of State, it could not be said that the grant of two years instead of one year was less favourable to the appellant. 6. Accordingly the notice was valid and the Secretary of State had the power in law to take the decision he took.

Cases referred to in the Judgment:

Shamusideen Oladehinde v Immigration Appeal Tribunal [1990] 3 WLR 797: [1991] Imm AR 111.

Counsel:

R Scannell for the appellant; D Wilmott for the respondent PANEL: RE Maddison Esq (Chairman), AA Lloyd Esq JP, Major D Francombe

Judgment One:

IMMIGRATION APPEAL TRIBUNAL: The appellant is a citizen of Pakistan, born in 1965. On 22 December 1988 the Secretary of State decided to initiate deportation proceedings against him pursuant to section 3(5)(a) of the 1971 Act, as amended. The Secretary of State had concluded that the appellant was an overstayer. An appeal against that decision was dismissed by an adjudicator (Mr JR Bright) in a determination dated 20 July 1989. The adjudicator granted leave to appeal to the Tribunal. The hearing before the Tribunal has been postponed by consent on a number of occasions, because of the uncertainty in the law until the House of Lords handed down judgment in Oladehinde [1990] 3 WLR 797. Mr Scannell acknowledged that all issues relating to fairness and as to who took the material decision, which had been canvassed before the adjudicator and in the grounds of appeal were no longer matters for the appellate authorities. His argument before us was restricted to one narrow point. Mr Scannell submitted that on the facts which are not in dispute and on a true interpretation on the Notices Regulations 1984, the notice which gave the appellant his last variation of leave was defective: it followed that he was not an overstayer. Mr Wilmott did not dispute that if that were so, then the Secretary of State had no power to take the decision under challenge. The relevant facts may be shortly stated. On 31 October 1985 the appellant was given leave to enter the United Kingdom for 12 months. He had arrived in possession of entry clearance as a husband. At his date of entry the relevant rules were HC 169 (as amended by HC 503) and he was clearly admitted under paragraph 47: that refers to various conditions (in paragraph 46) and lays down that if those conditions be satisfied, then "A passenger holding an entry clearance . . . [as a spouse] . . . should . . . be admitted for an initial period of up to 12 months". On 13 October 1986 a letter was sent to the Home Office by the appellant's wife writing from the matrimonial home, in these terms: "I am enclosing my husbands passport, as his stay is near expiring. I shall be most pleased if you could give him another years stay. I do not wish to have one longer than this as I still wish to get to know him well before you issue him with permanent stay. Hope to hear from you very soon." After consideration of the case (and what factors were taken into account have not been revealed in detail), the appellant was granted further leave to remain until 31 October 1988. That further leave was stamped in his passport on 7 April 1987. Thus he was granted two further years from the date his earlier leave ended, or 18 months from the date of variation. Either way, he received more by way of leave than the letter had requested. It was said by his representative before the adjudicator that in August 1988 the appellant asked his wife to apply for a further extension "but she had not done so". He remained unaware that she had not applied for a variation: she handed his passport to the Home Office: he was arrested in December 1988 and served with notice of intention to deport. Before the adjudicator the appellant's solicitor acknowledged that the marriage has broken down. When it broke down is not in evidence. The explanatory statement however records that the variation of leave was only until October 1988 because of "the volatile nature of the marriage". Mr Scannell's submissions we hope we accurately summarise as follows. Under section 14 of the 1971 Act an applicant has a right of appeal "against any variation of the leave". The appellant accordingly had a right of appeal against the grant of leave to 31 October 1988. Section 18 of the 1971 Act empowers the making of regulations. So far as relevant the section reads: "18(1) The Secretary of State may by regulations provide -- (a) for written notice to be given to a person of any such decision or action taken in respect of him as is appealable under this Part of the Act (whether or not he is on the facts of his case entitled to appeal) or would be so appealable but for the ground on which it is taken; (b) for any such notice to include a statement of the reasons for the decision or action and, where the action is the giving of directions for the removal of any person from the United Kingdom, of the country or territory to which he is to be removed; (c) for any such notice to be accompanied by a statement containing particulars of the rights of appeal available under this Part of this Act and of the procedure by which those rights may be exercised; (d) for the form of any such notice or statement and the way in which a notice is to be or may be given." The relevant regulations made under that section are the Immigration Appeals (Notices) Regulations, 1984. The paragraphs relevant to this appeal are 3(1), 3(3) and 4. It is well to set them out in full: "3(1) Subject to the following provisions of this Regulation, written notice of any decision or action which is appealable (or would be appealable but for the grounds of the decision or action) shall as soon as practicable be given in accordance with the provisions of these Regulations to the person in respect of whom the decision or action was taken.

. . .

3(3) Where any such decision or action as is mentioned in paragraph (1) is taken as a result of an application made or submitted by a person on behalf of another person, or where a person in respect of whom such decision or action is taken (herein referred to as "the applicant") has, subsequent to the making of the application, appointed a person to act on his behalf in connection with the application, the provisions of paragraph (1) shall be deemed to be satisfied if notice in compliance with those provisions is given to the person who made or submitted the application or, as the case may be, to the person appointed to act on behalf of the applicant. 4(1) Subject to the provisions of paragraph (2), any notice given under Regulation 3 shall -- (a) include a statement of the reasons for the decision or action to which it relates; (b) if it relates to the giving of directions for the removal of any person from the United Kingdom to a country or territory specified in the directions, include a statement of that country or territory; and (c) be accompanied by a statement informing the person in respect of whom the decision or action has been taken of: (i) his right of appeal if any and the relevant provisions of the Act; (ii) the manner in which the appeal should be brought and the address to which a notice of appeal should be sent; (iii) the time within which an appeal should be brought; and (iv) the facilities available for advice and assistance in connection therewith. (2) In the case of a notice which relates to any decision to vary the limited leave of a person to enter or remain in the United Kingdom, it shall not be necessary to comply with the requirements of paragraph (1) if the decision was taken at the request of the person to whom notice is given and was not less favourable to him than that which was requested." When the variation of leave, of 18 months or two years, was inserted in the applicant's passport, that "notice" was not accompanied by information as to the appellant's rights of appeal. That is common ground. The reason was that the Secretary of State considered that in the event, the "notice" was one to which 4(2) applied. Mr Scannell contended that 4(2) did not apply. First, because the request was made not by the appellant but by his wife: thus it was not taken "at the request of the person to whom the notice was given" (ie the appellant). Second, in the special circumstances of a variation of leave requested by or on behalf of a spouse, 18 months was less favourable than 12 months. For the Secretary of State Mr Wilmott contended that reading paragraph 4(2) with paragraphs 3(1) and 3(3), there was no substance in Mr Scannell's first point, and taking into account the Secretary of State's discretion and the circumstances under which it was to be exercised, in the grant of variation of leave to spouses, 18 months could not be seen as less favourable than twelve months. Before dealing with these issues we should set out paragraphs 125 of HC 169 (as amended by HC 503) under which the variation of leave was given. It reads: "125. A person who was admitted for a limited period, or given an extension of stay, as the spouse of a person settled here may have the time limit on their stay removed at the end of that period if the Secretary of State is satisfied that the marriage has not been terminated and that each of the parties has the intention of living permanently with the other as his or her spouse." We deal with the first limb of Mr Scannell's argument. Mr Scannell's submission was that if a person made the application for variation of leave on behalf of another, then paragraph 4(2) did not apply. There was thus protection given to the applicant: if the applicant were dissatisfied with what appeared in his passport, then provided with a notice of his rights of appeal, he would know what to do. We disagree. Regulation 3 of the Notices Regulations envisages applications being made by representatives or applicants in person: indeed immigration control and the granting of leave or its refusal would be inoperable systems if representatives could not act on behalf of applicants. It seems to us illogical to introduce then a distinction between the applicant in person and his representative in paragraph 4(2). There is no authority on the meaning of the clause "if the decision was taken at the request of the person to whom the notice was given", but in our view it refers to those cases where a decision is taken as a result of an application, as opposed to a decision taken without any application being made -- such as a decision to deport, or to curtail leave already granted. The second clause "and was not less favourable to him that that which was requested", further limits the class of cases to which the paragraph applies: that is to say, the clause is conjunctive. Only where the decision follows an application by or on behalf of a person and it is no less favourable to him, is it permissible to dispense with information on rights of appeal. Thus an application for a further month's leave as a visitor resulting in the grant of two month's further leave would fall within the class, a grant of only two weeks additional leave would not. The wording within the clause however, in our view, is crystal clear. It contrasts the period which was given by the decision with that which was requested, not with what might have been requested, or what might have been given, or what in some or most other cases usually has been given. Mr Scannell's argument was that in the circumstances of a spouse admitted for 12 months in the first instance, it was the normal expectation that at the end of that twelve months, provided the Secretary of State were satisfied as to the intention of the parties of living together, indefinite leave would be given, where it was not, because the stability and endurance of the marriage was in doubt, then a further period of limited leave was given, but the longer the period of that further limited leave, the less favourable it was to the applicant: there was a longer period in which the marriage might break down. Thus in those circumstances, 18 months was less favourable than 12 months. With that submission likewise we do not agree. The rules provide that the Secretary of State may grant indefinite leave at the end of 12 months if he is satisfied on the quality of the marriage. If he is not, he has then no discretion to grant indefinite leave. He must grant further limited leave, or refuse leave. He is not however bound only once to grant limited leave as variation of leave -- he can grant (and in our experience has granted) in some cases first one and then another period of limited leave after the initial 12 months, where marriages have been continuing to be volatile. Thus this appellant by being in the first instance granted 18 months (or two years, depending on how the period is calculated) was not as it were put at risk for any longer period than if he had been granted 12 months. There is always the hypothetical possibility that if 12 months had been granted then at the precise moment when the next application was considered the marriage would have been temporarily and apparently stable, so that he would have been granted indefinite leave -- but likewise, it might have been in a particularly bad condition, and he might on that re-application have been refused any further leave. We do not think that hypothetical considerations should enter into the matter at all, but if they do, because a hypothesis can be put either way, it cancels itself out. Leaving hypotheses aside, it must, on a commonsense basis be the case that the Secretary of State (rightly as events have shown) considered that he was faced with a marriage that might not survive, but which, in the terms of the application letter, given time, might become soundly based. To give 18 months or two years for that evolution to take place -- and with the extended security it gave to the parties to resolve their difficulties -- cannot be seen reasonably as less favourable than 12 months. We conclude therefore that despite Mr Scannell's attractive arguments, Mr Wilmott's submissions are correct. The notice in question was within paragraph 4(2) of the Notices Regulations, and was a valid notice. On the date when the decision under appeal was taken the appellant was an overstayer: the Secretary of State accordingly had power to take the decision he took.

DISPOSITION:

Appeal dismissed

SOLICITORS:

McGrath & Co, Birmingham

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