Sasiharan v. Secretary of State for the Home Department

SASIHARAN v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal

[1993] Imm AR 253

Hearing Date: 25 November 1992

25 November 1992

Index Terms:

Student -- admitted as visitor -- application for variation of leave as a student -- recognised as a refugee in France -- application for variation of leave refused -- whether in accordance with the rules -- whether grant of leave to enter to appellant, a visa national without a visa, had been outside the rules. HC 251 paras 14, 111: United Nations Convention relating to the status of refugees 1951, Protocol 1967 art 22: European Agreement on the abolition of visas for refugees 1959 arts 1, 4.

Held:

The appellant was a citizen of Sri Lanka, who had been granted refugee status in France. He sought and was given leave to enter the United Kingdom as a visitor. He then applied for variation of leave as a student. That application was refused. An appeal was dismissed by an adjudicator. On appeal to the Tribunal it was argued that the appellant, a visa national, had been admitted originally without a visa: he had accordingly been admitted outside the rules: it followed that the application for variation of leave should also have been determined outside the rules and thus refusal was not mandatory. In the alternative, the footnote to paragraph 14 of HC 251, by its position and nature, did not have the force of an immigration rule. Held 1. The fact that the gloss on paragraph 14 of HC 251 appeared as a footnote did not mean that it had less force as part of the immigration rules. 2. The appellant, because of his refugee status, had been admitted under the provisions of paragraph 14, without a visa, albeit he was a visa national. 3. It followed that the consideration of his application for variation of leave was properly considered under the rules and the refusal, under the rules, was mandatory.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Secretary of State for the Home Department [1992] Imm AR 554.

Counsel:

Miss S Henderson for the appellant; D Wilmott for the respondent PANEL: RE Maddison Esq (Chairman), DM Froome Esq, Miss PG Liverman JP

Judgment One:

THE TRIBUNAL: The appellant is a citizen of Sri Lanka, born on 20 April 1966. He entered the United Kingdom on 24 June 1990: he was granted leave to enter as a visitor for three months, with a prohibition on employment. He then sought variation of leave as a student: that was refused. He appealed: his appeal was dismissed by an adjudicator (Mr EJT Housden) in a determination dated 21 April 1991. On 1 July 1992 he was granted leave to appeal to the Tribunal. The appellant has been recognised by the French government as a refugee. That led to an assertion, in the original grounds of appeal that he could rely on "the spirit of" article 22 of the 1951 Convention and a contention that the Secretary of State had wrongly exercised his discretion under the rules, in not granting the appellant variation of leave to continue his studies in the United Kingdom. Article 22 of the 1951 Convention reads as follows: "1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education. 2. The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships." Sub-paragraph (1) has no application to this case. Sub-paragraph (2) simply requires treatment not less favourable than that accorded to aliens. The conditions under which aliens are granted access to education in the United Kingdom are contained in the immigration rules. We find no basis on which the appellant can claim to enjoy access on more favourable terms than other aliens: his entitlement is that contained in the immigration rules. Paragraph 111 of HC 251 reads: "111. Subject to paragraph 115, a person who is a foreign national or Commonwealth citizen specified in the Appendix who did not enter the United Kingdom with an entry clearance as a student or prospective student should be refused an extension of stay for the purpose of studying." It is well-settled that that paragraph of the rules is mandatory. The Secretary of State, under the rules, had to refuse the application. A request for him to depart from the rules is not a basis on which an appeal to the appellate authorities can succeed. Miss Henderson sought to argue that the appellant had not been admitted under the rules, and no subsequent decision by the Secretary of State was a decision taken under the rules. With great respect we do not agree. The applicant was, by nationality a visa national: in normal circumstances he would not have been admitted without a visa. He was admitted without a visa however, because he was a refugee. It was Miss Henderson's submission that that exceptional treatment took him -- and his case subsequently -- outside the rules. We cannot agree. The relevant paragraph of HC 251 is paragraph 14, which reads: "14. The foreign nationals and Commonwealth citizens specified in the Appendix, stateless persons, and other holders of non-national documents (who are collectively described in these rules as "visa nationals") must produce to the immigration officer a passport or other identity document endorsed with a United Kingdom visa issued for the purpose for which they seek entry, and should be refused leave to enter if they have no such current visa." the dagger appended to "non-national documents", refers to a note at the bottom of the printed page which reads: "But holders of refugee travel documents issued under the 1951 Convention relating to the Status of Refugees by countries which are signatories of the Council of Europe Agreement of 1959 on the Abolition of Visas for Refugees do not require visas if coming on visits of 3 months or less." We agree with Mr Wilmott that the appellant on entry to the United Kingdom was given leave to enter in accordance precisely with that provision of the rules. Miss Henderson sought to persuade us that because the relevant text appeared as a note at the bottom of the page it was not a part of the immigration rules and did not have the status of a rule -- as for example did the body of paragraph 14. That submission we cannot accept. The immigration rules, it is well-recognised, do not have the formality of a statute or a statutory instrument: the statement in the footnote simply incorporates the provisions of article 1 of the 1959 Agreement. That Agreement itself -- by article 4 -- lays down that the Agreement "shall be without prejudice to the laws or regulations governing visits by aliens to the territory of any Contracting party". In those circumstances we conclude that the appellant was admitted under the rules, was admitted as a visitor, and, as the adjudicator found, was accordingly barred under paragraph 111 from subsequently switching to student status. It follows that the decision of the Secretary of State was in accordance with the law and the rules; the appeal cannot succeed. Miss Henderson's amended grounds of appeal read: "1. In reaching his determination the Adjudicator failed to consider: (i) whether or not the Secretary of State exercised his discretion in reaching his decision to refuse to vary leave, or (ii) if discretion was exercised in reaching the decision to refuse to vary leave, whether that discretion should have been exercised differently. 2. The Appellant is a recognised refugee in France. He was granted leave to enter the UK as a visa national but without having obtained prior entry clearance in accordance with the Agreement on the Abolition of Visas for Refugees of 1959 to which the UK and France are parties. Leave to enter was therefore granted in the discretion of the Secretary of State outside the Immigration rules. 3. The Appellant's status was at all times without the Immigration rules. His application was to vary a discretionary leave to enter and did not therefore constitute a request of the Secretary of State to depart from the rules. As such the Appellant's application was or ought to have been considered in the Secretary of State's discretion. The exercise of such discretion is subject to review by the Appellate authorities and should have been so reviewed by the Adjudicator. 4. In the alternative, the Secretary of State in the exercise of his discretion should have considered the new information contained in the letter by the Appellant's solicitors to the Home Office dated 20th November 1991 and prepared a fresh explanatory statement if the refusal of the application was to be maintained." On our findings above these grounds fall away because it is our conclusion that the appellant was admitted under the immigration rules. If we were wrong on that, we would be disinclined in any event, following the unambiguous advice of Watkins LJ in Mumin, to seek to investigate the circumstances in which the Secretary of State did or did not exercise an extra-statutory discretion. It would be discourteous to the Divisional Court as well as imprudent for an inferior tribunal to disregard such clear advice and we would not propose doing so. The appeal is dismissed.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Jane Coker & Co, London, N17
 

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