R v. Immigration Appeal Tribunal, Ex parte Subramaniam

R v Immigration Appeal Tribunal, ex parte Subramaniam

COURT OF APPEAL, CIVIL DIVISION

[1977] QB 190, [1976] 3 All ER 604, [1976] 3 WLR 630, 140 JP 671

Hearing Date: 21st, 24th, 27th MAY 1976

24 MAY 1976

Index Terms:

Immigration - Deportation - Expiration of leave to remain in United Kingdom - Variation of leave - Refusal of application to vary leave - Appeal pending - Applicant not to be deported so long as appeal pending - Applicant who has a limited leave to enter or remain in the United Kingdom - Applicant's leave having expired before application made for further period of leave - Whether applicant immune from deportation until application determined and appeal procedure exhausted - Immigration Act 1971, ss 3(5)(a), 14(1).

Held:

In January 1970 the applicant, a non-patrial, obtained limited leave to remain in the United Kingdom as a student for a period which, after extensions had been granted, was due to expire on 30th June 1974. On 19th June his employers applied on his behalf for a work permit to be issued to him, but that application was refused. In July the applicant lodged an appeal against that refusal. On 19th November he applied for a further extension of the period of his leave to remain in the United Kingdom which had expired on 30th June and on 26th November he withdrew his appeal against the refusal of a work permit. In January 1975, whilst the application for an extension was still pending, the Home Secretary, pursuant to his powers under s 3(5) a of the Immigration Act 1971, notified the applicant of his decision to deport him. The applicant appealed against the notice but the Immigration Appeal Tribunal upheld the Home Secretary's decision. The applicant thereupon applied for an order of certiorari to quash the tribunal's decision, contending that, under s 14(1) b of the 1971 Act, as a person who had had a limited leave to remain in the United Kingdom, he could not be required to leave the United Kingdom by reason of the expiration of his leave until, in the event of a refusal of his pending application for an extension of leave, the appeal procedure had been exhausted. a Section 3(5), so far as material, is set out at p 606 g, post b Section 14(1) is set out at p 606 j to p 607 a, post Held - The words 'a person who has a limited leave under this Act' in s 14(1) did not include a person, such as the applicant, who had had a limited leave but whose leave had expired before he made a further application for the leave to be extended. Since the applicant's leave had expired in June 1974 and his protection under s 14(1) had come to an end when he withdrew his appeal against the refusal of a work permit on 26th November, it followed that the Home Secretary's decision to deport him in January 1975 was valid and the application for certiorari would be dismissed (see p 607 g to p 608 a and e to g, p 609 a b f and g and p 610 c to f, post). Per Curiam. Where a person who has leave to remain in the United Kingdom for a limited period applies for an extension before the period has expired, he is entitled to the protection of s 14(1) of the 1971 Act so long as an appeal against the refusal of the application is pending even though the period of leave had expired before the decision to refuse the application was made (see p 607 e to g and p 609 a and b, post). Decision of the Divisional Court of the Queen's Bench Division [1976] 1 All ER 915 affirmed.

Notes:

This decision was approved by the House of Lords in Suthendran v Immigration Appeal Tribunal p 611, post, but on the more general ground, that, to secure the protection of s 14(1) of the 1971 Act, the applicant must lodge his appeal against the refusal of an extension of leave before the period of his existing leave has expired.

Cases referred to in the Judgment:

Secretary of State for the Home Department v Enorzah [1975] Imm AR 10.

Cases cited in the Judgment:

Boal Quay Wharfingers Ltd v King's Lynn Conservancy Board [1971] 3 All ER 597, [1971] 1 WLR 1558, CA. Kronprinz (Cargo Owners) v Kronprinz (Owners), The Ardandhu (1887) 12 App Cas 256, 56 LJP 49, HL. Singh (Gurdev) v The Queen [1974] 1 All ER 26, [1973] 1 WLR 1444, DC.

Introduction:

Appeal. This was an appeal by Kunaseelan Subramaniam against a decision of the Divisional Court of the Queen's Bench Division n1 (Lord Widgery CJ, Kilner Brown and Watkins JJ) given on 25th February 1976, dismissing the appellant's application for an order of certiorari to quash the determination of the Immigration Appeal Tribunal dated 17th October 1975 dismissing the appellant's appeal against the determination of an adjudicator who had dismissed the appellant's appeal against a notice given by the Secretary of State for the Home Department on 8th January 1975 that he was going to make a deportation order in respect of the appellant. The facts are set out in the judgment of Lord Denning MR. n1 [1976] 1 All ER 915

Counsel:

K S Nathan for the appellant. Harry Woolf for the respondents.

Judgment-READ:

24th May. 27th May. The following judgments were delivered. PANEL: LORD DENNING MR, ORMROD AND BRIDGE LJJ

Judgment One:

LORD DENNING MR. At the background of this case there is this important point: if a Commonwealth citizen comes here and remains ordinarily resident here for five years he gets a right to stay here. Once the five years have elapsed he is not liable to be deported: see s 7(1)(b) and (2) of the Immigration Act 1971. Here we have the appellant, Mr Subramaniam, from Sri Lanka which is within the Commonwealth. He is now 34 years of age. He came here on 18th January 1970 when he was 29. On 8th December 1975, when he had been here four years and ten months, a deportation order was made against him. He now says that this was invalid. If it is invalid, he will have been here five years and have acquire a right to remain. To decide the case it is necessary to see whether Mr Subramaniam had any, and if so what, leave to remain in this country. He came originally in January 1970. He had a certificate of entry as a student. He wanted to become an accountant. He was given leave to be here for 12 months to study. After six months he failed his first examination. Instead of studying longer at that time he took paid employment with an electrical company. He worked in their accountancy department, and thus gained practical experience. So much so that he was afterwards given leave to stay as a trainee in order to get a total of three years' experience. These three years expired in September 1973. He had, even then, not managed to pass the examinations. So he was given a further extension of leave. The latest of these extensions was due to expire on 30th June 1974. Shortly before that date, on 19th June, his employers, who thought well of him, asked that he be given, not a student permit, but a work permit to take up full-time employment with them. The Home Office, however, refused a work permit. On 24th July he gave notice of appeal to an adjudicator against that refusal. On 25th July the Home Office acknowledged receipt of the notice of appeal. The acknowledgment contained these words in common form: 'The appellant will not be required to leave the United Kingdom while the appeal is pending.' Anticipating that his appeal would fail and he would not get a work permit, Mr Subramaniam hoped to do better as a student. He went back to his student plans. He got a place as a full-time student at the Gwent College in Wales with the object of taking the examinations in May 1975. To this end he took steps to withdraw his appeal for a work permit and instead to apply to stay as a student. On 19th November 1974 his employers, on his behalf, applied for an extension of stay as a student, and on 27th November he withdrew his appeal for a work permit. On this withdrawal the adjudicator gave a favourable report on him, saying: 'I have formed the view that the appellant's attitude is basically an honest one and that he has a genuine wish to complete a course of study at the Gwent College of Technology...' On 11th December Mr Subramaniam, on his own behalf, applied for an extension of his leave so as to complete his course of studies. He enclosed his passport. The Home Office on the next day, 12th December, acknowledged the documents, simply adding that the matter was receiving attention and that the documents would be returned as soon as possible. Stopping there, it appears that his last extension expired on 30th June and yet he was here and applying for leave to remain. The Home Office must have noticed this. They must have noticed that the man had been here four years, and that the five years were mounting up. They took the view that Mr Subramaniam had overstayed his leave to remain and was liable to deportation. So the Home Secretary decided to make a deportation order against him. It should be noticed that this was not a deportation order itself but only a decision to make such an order, against which he had a right of appeal before any order was made. On 8th January 1975 the Home Office gave him notice of the decision. He appealed against the decision to an adjudicator. On 12th May the adjudicator dismissed his appeal. He appealed to the tribunal, but before his appeal was heard he took his examinations. To his great joy, he passed at last. In August 1975 he got the news. So his great object in coming to England had been achieved. But he did not want to be deported. He had no leave to remain but he stayed here and pursued his appeal before the tribunal against the decision to deport. On 17th October the tribunal dismissed his appeal. So there was no bar at all to the making of a deportation order. The five years were drawing to an end. On 8th December 1975 the Home Secretary made a deportation order against him. The order was made under s 3(5)(a) of the Immigration Act 1971, which says:

'A person who is not patrial shall be liable to deportation from the United Kingdom -- (a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave...'

On 8th January 1976 Mr Subramaniam applied to the Divisional Court n1 to quash the decision of the tribunal. Counsel for Mr Subramaniam said that, although his latest extension of leave expired on 30th June 1974, nevertheless he, afterwards, in November or December 1974 applied for leave to remain and that he was given protection from deportation by s 14(1) of the 1971 Act. The Divisional Court refused to quash the deportation order. He now appears in this court. n1 [1976] 1 All ER 915, [1976] 3 WLR 630 The case raises an important question on the true interpretation of s 14(1) of the 1971 Act. It says:

'Subject to the provisions of this Part of this Act, a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any variation of the leave (whether as regards duration or conditions), or against any refusal to vary it; and a variation shall not take effect so long as an appeal is pending under this subsection against the variation, nor shall an appellant be required to leave the United Kingdom by reason of the expiration of his leave so long as his appeal is pending under this subsection against a refusal to enlarge or remove the limit on the duration of the leave.'

It appears that, before 25th February 1976 (when the Divisional Court n1 gave their decision), all concerned in the administration of the Act, that is to say the Home Office, the adjudicators and the tribunal, had interpreted that section in this way. Suppose a man was granted leave to enter as a student for 12 months. He could apply for an extension either before or after the 12 months had expired. Let us suppose that he applied a week or so after the 12 months had expired. If the Home Office refused him an extension, he could appeal to the adjudicator, and thereupon he could not be required to leave so long as his appeal was pending. Now let us suppose that his appeal was rejected by the first adjudicator. He could then make a second application for an extension of his leave, giving a different reason for the extension; and if this was refused he could again a second time appeal to a second adjudicator; and again he could not be required to leave so long as the second appeal was pending. So much so that a man could make one application after another for an extension and could remain here indefinitely while each successive application was considered and rejected. In due course he would have been here for five years and thus get a right to remain here forever. This construction of the section was open to such grave abuse that the Divisional Court n1 rejected it. I think they were quite right in so doing. n1 [1976] 1 All ER 915, [1976] 3 WLR 630 Counsel for the respondents submitted another interpretation, which was this. Suppose a man was granted leave to enter for 12 months and he applied for an extension one week before the 12 months expired, but the Home Office took four weeks to consider it so that their refusal was made after the 12 months had expired. Counsel for the respondents submitted that the man could not appeal at all against that refusal because his only right of appeal was during the original 12 months' leave. The words of the section are: '... a person who has a limited leave... may appeal against any refusal'. Counsel for the respondents said that his appeal must be lodged while he still has leave to remain. So that if a refusal was given after his leave had expired, he was not within the section and could not appeal. The Divisional Court n2 seem to have accepted that submission, but I am afraid I cannot accept it. The man's right of appeal would depend on the length of time which the Home Office took to consider his case. By taking their normal time, let us say two or three months, they could deprive him of his right of appeal altogether. That cannot be the right approach. It is well settled that, in legal proceedings, no one is to be prejudiced by the delay of the court or its officers. n2 [1976] 1 All ER 915 at 918, 919, [1976] 3 WLR 630 at 632, 633 Eventually it fell to Bridege LJ to suggest the right interpretation. He suggested that s 14(1) should run in this way: 'A person who at the time of applying for a variation has a limited leave...' On this interpretation a man who wishes to get an extension of time must make his application during the time whilst he is lawfully here by leave. Suppose a man is granted leave to enter as a student for 12 months and he wants an extension, he should make his application within those 12 months. Let us suppose that he makes it only one week before the 12 months expire. Then, after waiting some time, say four weeks, he is granted an extension. All well and good. He can stay during the extension. But suppose that after waiting the four weeks, he was refused an extension. He can appeal to the adjudicator from the refusal. In this case he is protected by s 14(1) and he cannot be required to leave whilst his appeal is pending and until it is determined. So he is secure pending the appeal. In contrast, let us suppose that he makes his application one week after the 12 months expire. In that case, he does not come within the protection of s 4(1) at all. The Home Office may, in their discretion, consider the application even though it was made later; and either grant it or refuse it. If they refuse it, the man has no right of appeal to an adjudicator against that refusal. He can be required to leave, on the simple ground that his original leave has expired. But there is this safeguard provided for him. Before a deportation order is made, the Home Secretary must notify him that he has decided to make it, and then he can appeal against that decision to an adjudicator under s 15(1)(a) of the 1971 Act. On that appeal the merits of his case will be considered just as fully as if he had made his application within the 12 months and had been refused. So no injustice at all will be done to him. In this way all the drawbacks of the other interpretations will be avoided. It seems to me that Bridge LJ's suggestion is right and that the court should accept it. So much for the 1971 Act itself, but there is a point I must mention on the words 'limited leave'. At one time, when the Home Office received an application to extend the time, they acknowledged the application and added these words: 'Meanwhile this acknowledgement may be regarded as authority for the holder to remain in the United Kingdom pending decision on any application made for an extension of stay.' That authorisation was held by the tribunal to be itself a limited leave to remain in this country so that whilst the application was pending the Home Secretary had no power to make a decision to deport. It was so held in Secretary of State for the Home Department v Enorzah n1. n1 [1975] Imm AR 10 In the present case the Home Office did not use that formula. In their acknowledgement of 25th July 1974 they used this formula: 'The appellant will not be required to leave the United Kingdom while the appeal is pending.' It was suggested that this was itself an authorisation to stay, but I cannot so regard it. This acknowledgement followed the words of s 14 itself. It was appropriate and correct because the man had applied on 19th June 1974 for an extension whilst his original leave subsisted. It merely stated what the Act stated. It was a recital of the statutory protection. It was not an authority to stay. The case runs therefore in this way. This man had leave only to remain until 30th June 1974. His application for a work permit was made before that date, but it was withdrawn on 27th November 1974. His applications on 19th November 1974 and 11th December 1974 (to stay as a student) were made after his leave had expired. They were too late. He had no right of appeal from the refusal of them to the adjudicator. Afterwards the Home Secretary on 8th January 1975 made a decision to deport him. He had a right of appeal from that decision to deport him, and he exercised it. It was refused by the adjudicator and by the tribunal. There is no ground whatever for saying that their decision was erroneous. On the contrary it was quite right. Some reference was made to the Immigration Rules n2 relating to Commonwealth citizens. Paragraph 39 says that most of the cases of deportation are those which concern a criminal offence or when a man is staying in defiance of the immigration control. But those are not exhaustive. Paragraph 42 says that deportation will normally be the proper course when a man has remained without authorisation. That is this case. n2 Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (HC 437), laid before Parliament on 16th October 1973 under s 3(2) of the Immigration Act 1971 In conclusion I will only say this. This man was given leave to enter as a student in 1970. By August 1975 he had passed all his examinations. He had achieved the very purpose for which he was allowed to enter. He has no legitimate complaint. He is now required to leave, and it is most important that he should be made to leave. The Home Secretary was quite right to make the deportation order when he did; because if he had not done so, this man might have claimed that he had been here five years and that he was entitled to stay. That would be a grave abuse of our immigration control. I would dismiss the appeal.

Judgment Two:

ORMROD LJ. I agree and would only add one thing, and that is that the second half of s 14(1) to my mind should be read as analogous to a stay which is a common form of proceeding in the normal court structure when an appeal is pending. Otherwise I agree that this appeal should be dismissed.

Judgment Three:

BRIDGE LJ. I also agree. The machinery of the Immigration Act 1971 provides for appeals against decisions of immigration officers and the Secretary of State in distinct classes of case. First, under s 13 there is an appeal against a refusal of leave to enter. Secondly, under s 14 there is an appeal against a decision to vary or a refusal to vary the conditions attaching to any existing limited leave to be in this country. Thirdly, s 15 provides appeals in respect of deportation orders. Sections 16 and 17 are not relevant for the present purposes, but they provide for various appeals relating to directions for the removal of a person from this country. It is significant in the present context to observe the limitation on the right to appeal against a refusal of leave to enter. Section 13(3) provides that a person shall not be entitled to appeal against a refusal of leave to enter so long as he is in the United Kingdom except in certain defined cases. The principal category of appeal with which we are concerned is the appeal against conditions under s 14. By s 14(1):

'Subject to the provisions of this Part of this Act, a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any variation of the leave... or against any refusal to vary it...'

To see what that involves one must turn back to s 3(1)(b) which indicates:

'[A person] may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c) if he is given a limited leave to enter or remain in the United Kingdom, it may be given subject to conditions...'

Reading s 14(1) together with s 3(1)(b) and (c) , it seems to me that s 14 presupposes before there can be any appeal against a variation of the terms of the limited leave or a refusal to vary it that there will have been an application either to vary the conditions or, what comes to the same thing, to extend the period of a limited leave. It is clear to my mind that such an application must be made while the limited leave is still subsisting. Once a limited leave to enter has expired, there is nothing left to which an application to vary can sensibly relate. Accordingly it follows, in my judgment, that an immigrant who allows the period of his limited leave to expire without making an application to vary it, but applies after his limited leave has expired for permission to remain in this country, has not right of appeal against a refusal of that application. If, having let his limited leave expire without seeking a variation, he remains in this country knowingly, then he is committing a criminal offence under s 24(1)(b). Siminarly from the moment when the limited leave expires he is subject to deportation under s 3(5). Of course, if he waits until the decision to deport is made, then he has his full rights of appeal against the decision made under s 15(1)(a). The question then arises, what is the extent of the protection afforded by the words in s 14(1): '... nor shall an appellant be required to leave the United Kingdom by reason of the expiration of his leave.' Clearly, in my judgment, those words must, so long as the protection obtains, afford a defence to any one under s 24(1)(b). Similarly, I think that, so long as the protection under s 14(1) is applicable, it would not be right for the Secretary of State to make a decision to deport. The date of the decision to deport is the all-important date for the purposes of the status of irremovability which can be acquired by five years' residence under s 7. But if one looks at s 3(5) it provides:

'A person... shall be liable to deportation from the United Kingdom -- (a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave...'

It seems to me wrong to say that a person remaining beyond the time limited brings that provision into force if by another provision of the Act he is for the time being not required to leave. But the one protection which the words 'nor shall an appellant be required to leave' cannot possibly afford is the protection equivalent to the grant of a fresh limited leave which would operate to set the machinery of s 14 in motion all over again if an appellant chose to make a fresh application whilst his first appeal was still pending. That construction, as Lord Denning MR has pointed out, would lead to applications and appeals ad infinitum continuing the protection under s 14(1) which would enable any ingenious operator of the machinery to acquire in due course the status of irremovability under s 7. The result in this case is clear. The appellant was given limited leave which expired on 30th June 1974. Before that date his employers had applied for a work permit, and counsel for the respondents sensibly accepts by necessary implication that that application must be understood as an application for an extension of the period of the leave. The application was refused. He appealed against it. On 25th July 1974 the Home Office gave him notice that he would not be required to leave the United Kingdom while the appeal was pending. That was no more than to inform him of his statutory protection under s 14(1). He enjoyed that protection so long as his appeal was pending. His appeal ceased to be pending when it was withdrawn on 26th November 1974. It is of no materiality and provides him with no protection that the further application which he made for permission was made before that date on 19th November. It follows that when the Secretary of State made a decision to deport him on 8th January 1975 that was a valid decision to deport. The appellant exercised his right to appeal against it. The appeal went through the whole machinery -- through the adjudicator, and then through the Immigration Appeals Tribunal, who rightly dismissed the appeal. No error of law appears on the face of their records. There is no ground for certiorari. The application in the Divisional Court was rightly dismissed, and I would also dismiss this appeal.

Judgment Four:

LORD DENNING MR. In the course of the judgment it appealed that there might be some difference of opinion in the court on a point which did not arise for decision. We have had it mentioned to us today. In order that there should be no misunderstanding at all it is necessary to distinguish between a decision to deport a man -- that comes first -- and the actual deportation order -- that comes second. So far as the decision to deport is concerned it is quite plain that in the case of a man who has limited leave to remain here, once that leave has expired, there is no reason in law at all why the Secretary of State should not make a decision to deport him. That decision to deport him can be made as soon as that limited leave has expired, even though he has previously applied for an extension, and even though the application has afterwards been refused and he appeals against it. The decision to deport can be made. So far as the deportation order itself is concerned, it is different. Section 15(2) makes it plain that a deportation order is not to be made so long as an appeal may be made against the decision to make it, or, if an appeal is duly brought, so long as the appeal is pending. But it seems to me that although the power to make a deportation order itself is limited by s 15(2), there is no limit whatever on the power of the Secretary of State to make a decision to deport. Under the rules he has to give notice of the decision to the man and he can then appeal against that decision. As a matter of practice, an appeal against a decision to make a deportation order and an appeal against a refusal to vary can be brought on at the same time. So the procedure works no injustice at all. As Ormrod LJ said in the course of the case, s 14 only operates as a stay of the deportation order, not as a stayof a decision to deport. I hope in view of this the situation will be clear.

Judgment Five:

ORMROD LJ. I agree and have nothing to add.

Judgment Six:

BRIDGE LJ. I stand in a respectable judicial tradition in keeping a white sheet in my wardrobe and I gladly wear it this morning. Counsel for the respondents' argument, together with Lord Denning MR's observations in the course of the argument, have persuaded me that my obiter dictum, which gave rise to the mention of this case this morning, was wrong, and I entirely agree with the reasoning of Lord Denning MR.

DISPOSITION:

Appeal dismissed. Leave to appeal to the House of Lords refused.

SOLICITORS:

Monica Paranahetty, Kenton (for the appellant); Treasury Solicitor.

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