Amratlal Dahyabhai Patel and Others v. Chief Immigration Officer, London (Heathrow) Airport and Secretary of State for the Home Department

Court of Appeal (Civil Division)

 

[1977] Imm AR 116

Hearing Date: 7 July 1977

7 July 1977

Index Terms:

Immigration rules -- Rules for Control on Entry, and rules for Control after Entry -- Status of those immigration rules -- Whether rules in the nature of delegated legislation -- Whether strict rules of law or just rules of practice for guidance in the administration of the Immigration Act 1971 -- Whether compliance with the rules must be shown in appeals to adjudicators -- Immigration Act 1971, s 3(2), s 19 -- HC 79 (HC 80, 81, 82 et al).

Held:

This case came before the Court of Appeal on applications for leave to move for Orders of Certiorari and Mandamus. In issue was the question whether a father and his two (minor) daughters were genuinely seeking entry as visitors under para 15 of the Immigration Rules for Control on Entry, HC 79. On the facts, involving other members of their family already settled in this country, the immigration officer had not been satisfied that only a visit was intended and he had refused leave to enter. When considering whether the immigration officer had acted properly the court considered, inter alia, the status of the Immigration Rules. The following observations are taken from the judgments of STEPHENSON & ROSKILL LJJ.

Counsel:

K. S. Nathan for the applicants. Harry Woolf for the respondents. PANEL: Stephenson, Roskill and Waller LJJ

Judgment One:

STEPHENSON LJ: "... I take first the point which counsel for the applicants took last,... that on the facts of this case the immigration officer ought to have been satisfied that the applicants were coming for a visit of one month, and was wrong, therefore, to refuse them leave to enter on the ground that he was not so satisfied. The relevant paragraph of the Immigration Rules is para 15 of HC 79, which is the 'Statement of Immigration Rules for Control on Entry of Commonwealth Citizens', laid before Parliament on 25 January 1979 under s 3(2) of the Immigration Act 1971. [After reading para 15 of HC 79 STEPHENSON LJ continued]: There is no financial question involved here, but the first question to which the immigration officer had to address his mind under those rules (para 15 of HC 79) was, in the case of each of these three applicants, the father and the two daughters. Was he or she "genuinely seeking entry for the period of the visit" -- that is for a period of a month -- "as stated by him"? That was one of the matters, the first of the matters, which he had to consider, and if he was not so satisfied, it was his duty to do what he did, and refuse them leave to enter. The status of these Immigration Rules has been recently considered by this Court in the case of Hosenball. n1 They are not, as ROSKILL LJ had at one time thought, "delegated legislation". n2 n1 R v Secretary of State for the Home Department, ex p Hosenball, [1977] 1 WLR 766; [1977] 3 All ER 452. n2 In R v Chief Immigration Officer, London (Heathrow) Airport, ex p Salamat Bibi, [1976] 3 All ER 843 at p 848; [1976] 1 WLR 979 at p 984.

"They are not rules of law" (said LORD DENNING MR). n3 "They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the Immigration Act 1971. They can be, and often are, prayed in aid by applicants before the courts in immigration cases. To some extent the courts must have regard to them because there are provisions in the Act itself, particularly in s 19, which show that in appeals to an adjudicator, if the immigration rules have not been complied with, then the appeal is to be allowed. In addition, the courts always have regard to those rules, not only in matters where there is a question whether the officers have acted fairly. But they are not rules in the nature of delegated legislation so as to amount to strict rules of law."

n3 In Hosenball's Case, [1977] 1 WLR at p 780; [1977] 3 All ER at p 459. That is really only, I think, elaborating what is said in s 3(2) of the Immigration Act itself, which empowers the Secretary of State to

"lay before Parliament statements of the rules... laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances;..."

Judgment Two:

ROSKILL LJ: I entirely agree that the applications should be refused for the reasons STEPHENSON LJ has given, and I only add to his judgment on one point. In his argument yesterday afternoon counsel for the applicants sought to rely upon an observation of mine regarding the status of the Immigration Rules in R v Chief Immigration Officer, London (Heathrow) Airport, ex p Salamat Bibi, n4 an observation to which STEPHENSON LJ referred in his judgment. That view which I tentatively there expressed was disapproved by all three members of this Court in Hosenball, n5 the MASTER OF THE ROLLS, LANE LJ and CUMMINGBRUCE LJ. Those observations had a tenuous life, which must now be deemed to have come to its end. n4 [1976] 1 WLR 979, at p 984; [1976] 3 All ER 843, at p 848. n5 [1977] 1 WLR 766; [1977] 3 All ER 452.

DISPOSITION:

Applications Refused.

SOLICITORS:

Radia & Co; Treasury Solicitor.