Amin v. Entry Clearance Officer, Bombay

Amin v Entry Clearance Officer, Bombay

COURT OF APPEAL, CIVIL DIVISION

[1983] 2 AC 818, [1983] 2 All ER 864, [1983] 3 WLR 258

Hearing Date: 5 JUNE 1981

5 JUNE 1981

Index Terms:

Commonwealth immigrant -- Appeal -- Appeal against refusal to issue special voucher admitting United Kingdom passport holder to United Kingdom -- Whether right of appeal from entry clearance officer's decision -- Whether special voucher an 'entry clearance' -- Whether voucher evidence of eligibility for entry -- Immigration Act 1971, ss 13(2), 33(1).

Commonwealth immigrant -- Special voucher scheme -- Sex discrimination -- Refusal to issue special voucher to married woman who was not head of a household -- Whether special voucher scheme unlawful sex discrimination -- Sex Discrimination Act 1975, ss 1, 29(1).

Held:

The appellant, an Asian woman, was a citizen of the United Kingdom and Colonies and the holder of a United Kingdom passport. In 1976 she applied to the entry clearance officer in Bombay, where she lived with her husband who was an Indian citizen, for a special voucher on her own account to enable her to settle in the United Kingdom. The special voucher scheme was a non-statutory scheme under which entry vouchers were issued to Commonwealth citizens who held British passports but who were prevented by the provisions of the Commonwealth Immigrants Act 1968 from entering and settling in the United Kingdom. As a matter of administrative discretion special vouchers were only issued to heads of households who were under pressure to leave their country of residence. The appellant's father, who lived in Tanzania, had previously obtained a special voucher for himself, his wife and his unmarried children but had not included the appellant in his application. The appellant's application was refused on the ground that she was not the head of a household and therefore not eligible to apply for a special voucher. The appellant applied for judicial review of the entry clearance officer's refusal of her application, seeking a declaration that she had a right of appeal to an adjudicator under s 13(2) of the Immigration Act 1971 because a special voucher was 'an entry clearance' as defined in s 33(1) of that Act. The Divisional Court and, on appeal, the Court of Appeal refused to grant judicial review. The appellant appealed to the House of Lords, contending further that in so far as the special voucher scheme discriminated between husbands and wives it was unlawful under ss 1 and 29(1) of the Sex Discrimination Act 1975. Held (Lord Scarman and Lord Brandon dissenting) -- The appeal would be dismissed for the following reasons-- (1) A special voucher was not a 'document which [was] to be taken as evidence of a person's eligibility . . . for entry into the United Kingdom' and therefore not an entry clearance as defined in s 33(1) of the 1971 Act, because the issue of a special voucher depended on the exercise of an administrative discretion rather than on proof of facts establishing eligibility. Since a special voucher was not an entry clearance it followed that a refusal to issue a special voucher was not appealable under s 13(2) of the 1971 Act (see p 870 c to e, p 873 e to g and p 883 c to j, post). (2) Although the special voucher scheme was by its nature discriminatory against women, that discrimination was not unlawful under s 29 of the 1975 Act, because s 29 as a whole applied to the direct provision of facilities and services and not to the mere grant of permission to use those facilities, and the entry clearance officer in Bombay had not been providing a service for would-be immigrants but performing his duty of controlling immigration (see p 871 c e g to j, p 872 e, p 873 e to g and p 883 h j, post) Kassam v Immigration Appeal Tribunal [1980] 2 All ER 330 and Home Office v Commission for Racial Equality [1981] 1 All ER 1042 approved Savjani v IRC [1981] 1 All ER 1121 distinguished. Decision of the Court of Appeal p 866, post, affirming decision of the Divisional Court of the Queen's Bench Division sub nom R v Entry Clearance Officer, Bombay, ex p Amin [1980]2 All ER 837, affirmed.

Notes:

For what constitutes entry clearance, and for the special voucher system, see 4 Halsbury's Laws (4th edn) paras 981, 991. For sex discrimination generally, see 16 ibid para 771: 2. For the Commonwealth Immigrants Act 1968, see 4 Halsbury's Statutes (3rd edn) 60. For the Immigration Act 1971, ss 13, 33, see 41 ibid 34, 52. For the Sex Discrimination Act 1975, ss 1, 29, see 45 ibid 227, 248.

Cases referred to in the Judgment:

Applin v Race Relations Board [1974] 2 All ER 73, [1975] AC 259, [1974] 2 WLR 541, HL. Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223, CA. Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141, [1982] 1 WLR 1155, HL. Home Office v Commission for Racial Equality [1981] 1 All ER 1042, [1982] QB 385, [1981] 2 WLR 703. Kassam v Immigration Appeal Tribunal [1980] 2 All ER 330, [1980] 1 WLR 1037, CA. Savjani v IRC [1981] 1 All ER 1121, [1981] QB 458, [1981] 2 WLR 636, CA.

Introduction:

Appeal Mrs Bhadrabala Arvindbhai Amin appealed against the decision of the Divisional Court of the Queen's Bench Division (Lord Lane CJ, Griffiths and Webster JJ) ( [1980] 2 All ER 837, [1980] 1 WLR 1530) on 30 June 1980 dismissing her application for judicial review of a decision of the respondent, the entry clearance officer at Bombay, that she was not entitled to a special voucher enabling her to enter the United Kingdom and that there was no right of appeal under s 13(2) of the Immigration Act 1971 against the decision. The facts are set out in the opinion of Lord Fraser (see p 866, post).

Counsel:

K S Nathan for the appellant. David Latham for the respondent. PANEL: ORMROD, DUNN LJJ AND WATERHOUSE J

Judgment One:

ORMROD LJ. This is an appeal by the applicant, Mrs Amin, against a decision of the Divisional Court of the Queen's Bench Division given on 30 April 1980 and contained in a judgment by Lord Lane CJ, with whom the other two members of the court, namely Griffiths and Webster JJ, agreed (see [1980] 2 All ER 837, [1980] 1 WLR 1530). We have listened with interest to the submissions of counsel for the appellant in this court which reproduced in substance the submission which he made to the Divisional Court and, while taking the points that he has made, I think it only necessary to say this, that the argument which he seeks to put forward, namely that under the Immigration Act 1971, s 13(2) the applicant in this case has a right of appeal against the refusal to grant her what is called a 'special voucher', is answered shortly. There is no conceivable means by which any form of appellate body could adjudicate on that issue because whether or not a special voucher is granted appears to be (and there are no rules about it) wholly a matter of practice and discretion. All I can say is that I agree with the judgment of Lord Lane CJ and would dismiss this appeal.

Judgment Two:

DUNN LJ. I agree.

Judgment Three:

WATERHOUSE J. I agree.

DISPOSITION:

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

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