Cheema v. Secretary of State for the Home Department

Cheema v Secretary of State for the Home Department (TH/76090/81)

Court of Appeal (Civil Division)

[1982] Imm AR 46

Hearing Date: 2 July 1982

2 July 1982

Index Terms:

Preliminary issue - Application out if time - Whether due to delay by solicitor in submitting - Whether such delay by solicitor "special circumstances" - Immigration Appeals (Procedure) Rules 1972, r 11(4).

Evidence - Whether respondent's conclusion that no application was made within time was reasonable.

Held:

The appellant, a Pakistani student in the United Kingdom, had his permitted stay extended to 31 July 1979. In May 1979 he married a Pakistani girl settled here, and on 11 April 1980 solicitors applied to the Home Office for both husband and wife to be allowed to stay as permanent residents. In subsequent correspondence the solicitors claimed that they had written to the Home Office in May 1979-well within time-but that the carbon copy of the letter had been lost as a result of burglaries at their office. Ralph Gibson J, from whose judgment dismissing on 11 June 1981 the appellant's application for judicial review the present appeal arose, came to the conclusion that there was ample evidence for the Secretary of State to have reasonably come to the conclusion that no application was made before 31 July 1979. Held: (i) Mistakes by solicitors can be special circumstances within the meaning of the Immigration Appeals (Procedure) Rules 1972, r 11(4). (ii) It was not possible to say that there was no material upon which the Secretary of State could reach the conclusion that no application on behalf of the appellant was made before 31.7.1979.

Cases referred to in the Judgment:

Mehta v Secretary of State for the Home Department [1975] All E.R. 1084. [1976] Imm. A.R. 38 Gatti v Shoosmith [1939] 3 All E.R. 916

Counsel:

G Yazdani for the Appellant; A Collins for the Respondent.

PANEL:

Lord Lane CJ, O'Connor and Kerr LJJ Judgment By-1: O'CONNOR LJ

Judgment One:

O'CONNOR LJ: This is an appeal from a decision of Mr. Justice Ralph Gibson sitting as a Divisional Court on 11th June, 1981 when he dismissed the applicant's application for judicial review brought by leave of Mr. Justice McNeill. The facts giving rise to this case were that the applicant Mr. Cheema came to this country quite properly as a student in 1977. He was granted leave to come in for 12 months. He applied for leave in time to extend his period in this country, and in October 1978 he made application to stay here intending, he said, to study for some diploma in Chartered Accountancy or in accountancy and it was likely that would be here for some five years. That was investigated. It was found that he was entered as a student at Nene College, and in due course in April 1979 his leave was extended to 31st July, 1979, the end of the academic year. In the ordinary course of events he would have applied before 31st July, 1979 to stay on and that would have been considered no doubt in the light of what the position then was, whether he was still at the college and so forth. But in May 1979 he married a Pakistani girl who was settled in this country, and the effect of that was that under the legislation then in force and the rules then in force he would have been entitled, had he applied to the Home Secretary in time, to stay here and he would have been given a year's leave, having married a person who was settled here, and, subject to the rule that the marriage was still subsisting a year later, he would have been given permanent residence in this country. That being the position, it is said on his behalf that on 18th May he went to his solicitor, a Mr. De Beaufort, in Bristol and handed to the solicitor his passport, two passports of his wife and the marriage certificate and instructed him to make the necessary application to the Secretary of State. There matters stood until 11th April, 1980, and on 11th April, 1980 the solicitor wrote to the Home Office in these terms: "Re Mohammad Afzal Cheema and Fehmeeda Cheema (nee Manzur) In respect of this matter we write on behalf of instructions given to us by Mr. Mohammad Afzal Cheema a photocopy of whose Passport we are now pleased to enclose, from which you will note that he entered the United Kingdom on the 29th March 1979 under conditions as per photocopy of Page 10 of his Passport No. AFC67417. "Since his entry into the U.K. on the date mentioned above he married Miss Fehmeeda on the 15th May 1979 as per certified copy of the Marriage Certificate.

"The purpose of this letter is to ask you for confirmation in writing that both Mr. Cheema and his new wife Mrs. Cheema, formerly Manzur, will be allowed to remain in this country as permanent residents."

That was the application that the Home Office received, and by April 1980 the applicant was hopelessly out of time and there was no question of him making any application under the rules old or new. The matter thereafter became a question for the exercise of the Secretary of State's compassionate discretion should he choose to do so. The solicitors then began a correspondence with the Home Office to the effect that they had in fact written a letter in May 1979 will within time; the carbon of that letter had been lost because the solicitors' office had been subjected to a number of burglaries; the Home Office for its part could not find any letter of May 1979, and as a result of representations made more than one detailed search was made. The first issue was whether the Secretary of State could reasonably come to the conclusion that no application was made before 31st July, 1979. The learned judge came to the conclusion that there was ample evidence on which the Secretary of State could reach that conclusion, and for my part I agree. It seems to me that it stood out a mile that no letter was ever written by the solicitors. Before the applicant swore an affidavit in these proceedings in February 1981 the existence of a receipt which is exhibited to that affidavit simply was not known to the Secretary of State or indeed, as far as one can see, to anybody else. That purported to be a manuscript receipt dated 18th May, 1979 on the solicitors' notepaper: "Received of Mr. Sahi the folloing", and then there were two passports of Mrs. Cheema, one passport of the applicant and the marriage certificate. It is signed "De Beaufort & Co.". We do not know in whose handwriting it is. Mr. Sahi is an uncle, and it is plain that he went, when all this trouble came, to his Member of Parliament, who wrote on behalf of the applicant, and the Secretary of State in due course replied to that letter. When one looks at all the correspondence in this case it seems to me that, as I have said, there were ample grounds on which the Secretary of State could come to the conclusion that no application was made. What then is the position where the Secretary of State is being asked to exercise a compassionate discretion on the ground, it was said, that the mistake here was the mistake of the solicitor? In the first place he can only act on the material which is placed before him, and it will be seen that the receipt did not form part of that material. Reliance was placed by counsel for the applicant on the decision of this court in Mehta v Secretary of State for the Home Department [1975] 2 All E R 1084, [1975] 1 WLR 1987 In that case the applicant was a Tanzanian student, and what had gone wrong there was that a notice of appeal had not been given within the 14 days' time limit for an appeal to the adjudicator. The circumstances were that there had been a series of mistakes and errors. The Department itself had not answered letters. It had made a previous mistake which it acknowledged, and the solicitor who had written a letter during the 14 days had not got a reply because that was an error of the Department, and thus it was that it was out of time. The adjudicator held that he could not look at circumstances outside the four walls of the application to him and could not consider the merits of the case which were very powerful. This court came to the opposite conclusion, and the relevant passage in the judgment of the Master of the Rolls at page 1088 [1975] 2 All ER reads as follows: "One of the special circumstances here was the fact that the omission was the mistake of Miss Mehta's solicitors. It was said that the mistake of her solicitors could not amount to 'special circumstances' within r.11. I do not agree. In applying r.11, I should have thought that the appellate authority might well adopt the practice which we adopt in this Court of Appeal here. We are often asked to extend the time for giving notice of appeal. We never let a party suffer because his solicitors make a mistake and are a day or two late in giving notice of appeal. We always treat it as a ground for extending the time: see Gatti v Shoosmith. All the more so in a case like the present where Miss Mehta would have no remedy against her solicitor for any negligence. if she is out of time for appeal, she will be removed from this country and it would be of no consolation to her to say that she has a remedy against her solicitor." It is submitted that those words are very apt in the present case. Here was a mistake by the solicitor and, if this man is removed from this country, it is no consolation to him to be told that he has a course of action against his solicitor. There are powerful grounds for thinking that he ought not to be removed; it might mean the break-up of his marriage and so forth. It is very important in my judgment for this court to bear in mind that we are dealing with an application for judicial review of the Minister's decision and that matters of compassion are for him, and we must be careful not to substitute our feelings of compassion for his.Secondly, it is important that, in so far as the case is furthered, if it is furthered, by the production of the receipt, that was a matter which was not before the Secretary of State, and the burden of proving the application and placing the material before the Secretary of State is on the applicant. For my part, I am not prepared to allow myself to be influenced in deciding this case by the production of the receipt here. If it is a matter which does help the applicant, then there is no reason why the Secretary of State should not be asked to consider it. He himself in all probability has considered it since these proceedings began. But be that as it may, it is not something which I think it proper to take into account in considering the matter as to whether there was material before the Home Secretary in all the circumstances in which he could reasonably exercise his compassionate discretion and refuse leave to stay here. When one looks at the delay, the fact that on the evidence neither the applicant nor his uncle took any steps whatever to ask the solicitor whether he had received a reply from the Home Office and when one looks at the terms of the letter written on 11th April which would appear to point to recent instruction, I do not think it possible to say that there was no material upon which the Secretary of State could reach the conclusion which he did. The learned judge was of like view. In my judgment he was right and I would dismiss this appeal.

Judgment Two:

KERR LJ: I agree. I have some sympathy with the applicant, but the issue for this court is ultimately simply whether the applicant has shown that on the material before him the Secretary of State must have acted unreasonably in declining to exercise his discretion in favour of the applicant outside the immigration rules on compassionate grounds. For the reasons stated by Lord Justice O'Connor I cannot see that the applicant has satisfied this test and therefore I agree that this appeal must be dismissed.

Judgment Three:

LORD LANE CJ: I agree with both judgments.

DISPOSITION:

Appeal dismissed; no order as to costs save legal aid taxation in respect of applicant's costs.

SOLICITORS:

BC Mascarenhas; The Treasury Solicitor.

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