R v. Immigration Appeal Tribunal, Ex parte Coomasaru

REGINA v. IMMIGRATION APPEAL TRIBUNAL, Ex parte COOMASARU

COURT OF APPEAL (CIVIL DIVISION)

[1983] 1 All ER 208, [1983] 1 WLR 14, [1982] Imm AR 77

Hearing Date: 6, 15 October 1982

15 October 1982

Index Terms:

Immigration -- Limited leave to enter -- Application to vary leave -- Immigration officer's mistaken belief in applicant's diplomatic status -- Passport stamped as employed by High Commission -- Whether applicant "settled" and "ordinarily resident" in United Kingdom -- Immigration Act 1971 (c. 77), ss. 2 (1) (3) (d), 8 (3) (5), 13 (1) (3), 14 (1), 19 (2) -- Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (H.C. 79), paras. 51, 70

Held:

The applicant, a citizen of Sri Lanka, first came to the United Kingdom as a visitor in August 1973. He obtained the job of sub-warden of the Sri Lanka Students' Welfare Centre, but his right to remain in the United Kingdom was restricted and limited. He left the United Kingdom on May 11, 1975, but returned on the same day. On his re-admittance on May 11, 1975, owing to a mistake by the immigration officer, which was in no way induced by the applicant, his passport was stamped so as to indicate that he was employed with the Sri Lanka High Commission in the officer's erroneous belief that the applicant was entitled to diplomatic status and was exempt from immigration control under section 8 (3) of the Immigration Act 1971. The applicant left the country again on May 30, 1975, and was re-admitted on June 2, 1975, when the immigration officer made the same mistake as had been made on May 11. The applicant remained in the United Kingdom until April or May 1978 when he went abroad. When he returned on May 20, 1978, he was at first refused re-admission but on June 7, 1978, he was granted leave to enter for 12 months subject to the restriction that he could take no employment save as sub-warden of the Sri Lanka Students' Welfare Centre. The applicant no longer held that appointment. The Secretary of State refused to revoke or vary the conditions under which the applicant had been allowed to enter the United Kingdom in June 1978 and that decision was upheld on appeals by the applicant to an adjudicator and to the Immigration Appeal Tribunal. The applicant contended that when he left the United Kingdom in 1978 for the trip from which he returned on May 20, 1978, he was already "settled in the United Kingdom" within the meaning of section 2 (3) (d) of the Immigration Act 1971 n1 and paragraph 51 of the Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (H.C. 79), n2 and that he should have been admitted unconditionally. Woolf J. refused the applicant leave to apply for judicial review of the appeal tribunal's decision. n1 Immigration Act 1971, s. 2 (3) (d): see post, p. 17c. S. 14 (1): see post, p. 17H. n2 Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (H.C. 79), para 51: "A passenger... returning to the United Kingdom from overseas... is to be admitted for settlement on satisfying the immigration officer that he was settled in the United Kingdom when he left and that he has not been away for longer than two years." Para. 70: see post, p. 18C-D. On appeal by the applicant, who was granted leave to appeal: -- Held, dismissing the appeal, that the permissions granted to the applicant to enter the United Kingdom on May 11 and June 2, 1975, were qualified by the words "employed with Sri Lanka High Commission" and involved a restriction under the immigration laws on the period for which he might remain in the country within section 2 (3) (d) of the Immigration Act 1971; that further from the time of the applicant's readmissions to the United Kingdom in 1975 until his departure in 1978 he only enjoyed residence in the United Kingdom under colour of a supposed diplomatic status which residence could not under section 8 (5) of the Act found a settlement; and that accordingly the applicant could not claim to be "settled in the United Kingdom" within the meaning of the Act (post, pp. 17B-F, 20F, 22A-B, C-D). Reg. v. Secretary of State for the Home Department, Ex parte Ram [1979] 1 W.L.R. 148, D.C. distinguished. Per curiam. (i) In the light of paragraph 70 of the Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (H.C. 79) the appeal procedure under section 14 of the Immigration Act 1971 can properly be used to challenge the propriety of conditions imposed upon entry (post, pp. 19A-B, 20F, 21C-D). (ii) An immigrant who has always wanted the type of entry permit which he claims in an appeal, whether or not he asked for it at the time of entry is entitled to appeal in reliance upon H.C. 79; if he has changed his mind subsequent to his entry he is not entitled to complain of the condition attached to his entry permit or to seek a variation unless he can bring himself within the Statement of Immigration Rules for Control after Entry: Commonwealth Citizens (H.C. 80) (post, pp. 20C-D, F, 21C-D).

Cases referred to in the Judgment:

Reg. v. Immigration Appeal Tribunal, Ex parte Aisha Khatoon Ali [1979-80] Imm.A.R. 195, D.C. Reg. v. Secretary of State for the Home Department, Ex parte Ram [1979] 1 W.L.R. 148; [1979] 1 All E.R. 687, D.C.

Cases cited in the Judgment:

Reg. v. Immigration Appeal Tribunal, Ex parte Alexander [1982] 1 W.L.R. 1076; [1982] 2 All E.R. 766, H.L.(E.). Reg. v. Immigration Appeal Tribunal, Ex parte Prajapati (unreported), November 12, 1981, Forbes J. Reg. v. Immigration Appeal Tribunal, Ex parte Shaikh (Munir Ahmed) [1981] 1 W.L.R. 1107; [1981] 3 All E.R. 29. Reg. v. Immigration Officer, Ex parte Shah (Nitinchandra Somchand) [1982] 1 W.L.R. 544; [1982] 2 All E.R. 264.

Introduction:

APPEAL from Woolf J. By notice of March 2, 1981, the applicant, Gilbert Coomasaru, applied for leave to apply for judicial review under R.S.C., Ord. 53, r. 3, of the determination by the Immigration Appeal Tribunal on December 2, 1980, under the Immigration Act 1971 whereby the tribunal dismissed the applicant's appeal against the determination of Mr. T. D. Healy, as adjudicator, made on June 11, 1980, whereby he dismissed the applicant's appeal against the decision of the Secretary of State for the Home Department on January 5, 1979, refusing to vary the applicant's leave to enter or remain so as to permit him to remain in the United Kingdom indefinitely. The grounds on which relief was sought were that the tribunal erred in law (i) in holding that the applicant was not settled in the United Kingdom prior to May 20, 1978, and (ii) in failing to hold that by reason of paragraph 51 of H.C. 79 the applicant was entitled in August 1978 and January 1979 to a variation of his leave to enter so as to permit him to remain indefinitely in the United Kingdom by reason of his previous settlement in the United Kingdom. On March 17, 1981, Woolf J. refused to grant the applicant the leave sought. The applicant appealed on the ground, additional to that in the application, that the decision of the Divisional Court in Reg. v. Immigration Appeal Tribunal, Ex parte Aisha Khatoon Ali [1979-80] Imm.A.R. 195, which the court applied in refusing the applicant leave to apply for an order of judicial review was wrong in law in that the Divisional Court misdirected itself as to the purport, effect and proper construction of pragraph 51 of H.C. 79. The facts are stated in the judgment of Dillon L.J.

Counsel:

Michael Beloff Q.C. for the applicant. Simon D. Brown for the appeal tribunal.

Judgment-READ:

Cur. adv. vult. October 15. The following judgments were read. PANEL: Sir John Donaldson M.R., O'Connor and Dillon L.JJ.

Judgment One:

SIR JOHN DONALDSON M.R. This appeal raises two distinct issues. The first is whether the applicant was entitled to be admitted to this country as a returning resident. The second is whether, if he was or claimed to be so entitled, he could appeal against the restrictions imposed upon his entry in June 1978. I have had the advantage of reading the judgment of Dillon L.J. with which I agree. Both for the purposes of the Immigration Act 1971 and for the purposes of the Statement of Immigration Rules for Control on Entry: Commonwealth citizens (H.C. 79) a person is "settled in the United Kingdom" if he is "ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain": see section 2 (3) (d) of the Act of 1971. No immigration officer had authority to grant the applicant diplomatic status, but the officer concerned with his entry on May 11, 1975, was entitled to grant him permission to enter and remain so long as he was employed with the Sri Lanka High Commission. This, as I see it, is precisely what he did. It is true that it is an unusual form of permission, but for present purposes that is immaterial. It is equally immaterial that in granting permission in this form the officer thought that the applicant had diplomatic status and was exempt from control so long as he retained that status. What matters is that this form of permission involved a restriction on the period for which the applicant might remain, namely so long as he was employed with the Sri Lanka High Commission, and so prevented his acquiring the status of one who is settled in the United Kingdom. Quite clearly the permission given on June 2, 1975, was intended to reinstate the same restricted permision which had become spent when the applicant left the country on May 30, 1975. The second issue, concerning the applicant's right of appeal, is one of general importance. Part II of the Immigration Act 1971 provides successively in sections 13 to 17 for five different species of appeal. The appeal is in the first instance to an adjudicator, whose powers are set out in section 19 and there is a further right of appeal to the appeal tribunal under section 20. Section 13 is concerned with appeals against exclusion from the United Kingdom -- "a person who is refused leave to enter the United Kingdom under this Act may appeal..." This type of appeal suffers from the disadvantage from the point of view of the appellant that before he can exercise his right he must first leave the United Kingdom unless "he held a current entry clearance or was a person named in a current work permit": section 13 (3). No such impediment exists in the case of an appeal under section 14 which is concerned with appeals against conditions attached to a leave to enter:

"(1) ... 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;..."

Sections 15, 16 and 17 are not material for present purposes. The scheme of immigration control in respect of Commonwealth citizens operated in 1978 by means of two apparently distinct sets of rules. The first, contained in House of Commons Paper No. 79, was entitled "Statement of Immigration Rules for Control on Entry: Commonwealth citizens." The second, contained in House of Commons Paper No. 80, was entitled "Statement of Immigration Rules for Control after Entry: Commonwealth citizens." As might be expected, the criteria applied in deciding whether or not a Commonwealth citizen should be allowed to enter the United Kingdom are quite different from those applied in deciding whether or not to vary the conditions applicable to a permit under which the Commonwealth citizen has already entered. In general the latter are designed to take account of changes in circumstances since that entry. This dichotomy in rules for control and related appeals procedures makes sense until you get a situation in which a would-be immigrant is aggrieved at the conditions which are imposed at the time when he is permitted to enter. This is covered by paragraph 70 of Rules for Control on Entry (H.C. 79) which provides:

"Where a passenger is admitted but is aggrieved by a time limit or condition imposed, or it is clear that it will leave him dissatisfied, it should be explained that his proper course is to apply to the Home Office for variation of his leave, and that he will have a right of appeal if variation is refused." The impartial observer, having read that paragraph, would no doubt say: "How sensible. If an immigrant is permitted to enter as a visitor when he claims to have been entitled to some other and better status upon entry or if he claims to have been entitled to stay for longer than the immigration officer was prepared to permit, it would be absurd to require him not only to treat his limited permission to enter as a refusal of permission to enter but also to leave the United Kingdom before he could appeal. Of course the scheme is that he can use his permission to enter, in accordance with its terms, renew his application for a better status and, if that is refused, appeal under section 14 on the basis that there has been a refusal to vary."

"Not so," says Mr. Brown, who has appeared on behalf of the Immigration Appeal Tribunal but is not unfamiliar with the views of the Home Office: "There may be an unfortunate lacuna in the system, but the sad fact is that section 14 appeals are only concerned with variations which can be claimed on the basis of H.C. 80, and H.C. 80 is not concerned with what status should have been accorded to an immigrant upon entry. The immigrant cannot use the section 14 route."

The impartial observer replies: "Oh, I see. Then I assume that the immigrant can appeal under section 13 and, since he is already in the United Kingdom on the strength of a valid entry permit, he need not first leave the country."

"Not so," replies Mr. Brown, "If he wants to appeal under section 13, he must first leave the country, but I ought to warn you that such an appeal is bound to fail unless he not only leaves the country but also reapplies for entry and is refused. If he reapplies for entry and is again given a limited permit to enter, he will be no better off than when he started."

"Why?" asks the impartial observer. "Well," says Mr. Brown, "Section 13 appeals are against a refusal of entry and the immigrant whom we have been discussing has not been refused entry. He has been permitted to enter, albeit on terms which are less favourable than those to which he claims to be entitled."

At this point the impartial observer asks Mr. Simon Brown to explain how paragraph 70 is intended to operate, and Mr. Brown says that he will have to take instructions. The plain fact is that either the section 14 appeal procedure can be used to challenge the propriety of conditions imposed upon entry or paragraph 70 of the Rules for Control on Entry involves a very serious misrepresentation by the Secretary of State. I prefer to accept the former alternative. The inter-relationship between section 13 and H.C. 79 on the one hand and section 14 and H.C. 80 on the other was considered by a Divisional Court of the Queen's Bench Division in Reg. v. Immigration Appeal Tribunal, Ex parte Aisha Khatoon Ali [1979-80] Imm.A.R. 195. There, as here, Mr. Beloff appeared for the immigrant, but Mr. Latham appeared for the tribunal. The facts were slightly different and may have obscured the full enormity of the Home Office's interpretation of paragraph 70. It seems that Mrs. Ali had been told by the entry clearance officer in Delhi that she was not entitled to return to the United Kingdom for settlement and in consequence possibly asked for and certainly accepted a visitor's entry permit. It was only after she had entered that she thought to claim that she ought always to have been allowed to return for settlement. The Divisional Court held that the two systems of control were quite separate, that Mrs. Ali, having entered, had to rely upon H.C. 80 and that her complaints related to H.C. 79 and not to H.C. 80. Mrs. Ali was, as the Divisional Court saw it, asking the Secretary of State to apply H.C. 79 to someone in this country and, whilst he had discretion to do so, his refusal to depart from the immigration rules was not appealable: see section 19 (2) of the Act of 1971. For my part I accept that the section 13 appeal procedure is intended only for those who are refused entry. I also accept that the section 14 appeal procedure is concerned with a variation of leave to enter or a refusal to vary such leave. Where I part company with the Immigration Appeal Tribunal and also, I think, with the Home Office and the decision of the Divisional Court in Ali's case [1979-80] Imm.A.R. 195 is in relation to the rules to be applied on the hearing and determination of a section 14 appeal. Although a section 14 appeal will always concern a variation of the conditions of an entry permit or a refusal to vary those conditions, such an appeal can fall into either of two quite different categories. The first category is a complaint that the Secretary of State has failed to vary the conditions of an entry permit in the light of some change in circumstances. The basis of any such complaint must always be that the provisions of H.C. 80 have not been correctly applied. Accordingly the "immigration rules applicable to the case" referred to in section 19 (1) (a) (i) of the Act, which gives the adjudicator jurisdiction, are those contained in H.C. 80. The second category is a complaint that the entry permit was subject to conditions which could not be justified under the terms of H.C. 79 and a further complaint that the Secretary of State has refused to put this error right. Here the "immigration rules applicable to the case" are those contained in H.C. 79. If this is right paragraph 70 of H.C. 79 not only makes sense, but affords the immigrant the guidance which he needs. If it is not, paragraph 70 is grossly misleading. Mr. Brown asked us to hold that there can be no complaint about a failure to apply H.C. 79 correctly if the immigrant at the time of entry did not ask for that to which he was entitled. I see the force of this from the point of view of the Home Office.Immigration officers are busy people and if someone seeks admission as a visitor, as Mrs. Ali seems to have done, it is a little hard to criticise them for not ferreting out the fact that the immigrant is entitled to something more. However, looked at from the point of view of the immigrant, the point is not so attractive. Immigrants do not always know what is their entitlement -- Mrs. Ali probably did not -- although I do not doubt that many of them are very well informed indeed. I would reconcile these two points of view in this way. First, I would repudiate any suggestion that an immigration appeal necessarily involves any criticism of the immigration officer. He may merely not have appreciated the true facts. Second, I would draw a distinction between the case of an immigrant who always wanted the type of entry permit which he claims in the appeal, whether or not he asked for it at the time of entry, and one who, subsequent to entry, changed his mind. The latter is not in my view entitled to complain of the conditions attached to his entry permit or to seek a variation, unless he can bring himself within H.C. 80. The former is entitled to do so in reliance upon H.C. 79. On the facts of any particular case, the Secretary of State and, on appeal, the adjudicator and the Immigration Appeal Tribunal will take full account of the fact, if such it be, that when the immigrant entered the country he did not ask for the type of entry permit which he is now seeking and will demand an explanation in order to be satisfied that this is not merely a case of a change of intention. In the light of our decision on the first issue, the second does not arise for decision in this appeal, but, bearing in mind its general importance, I have felt it right to express my view which I would have applied if the applicant had succeeded on the first issue. Judgment By-2: O'CONNOR L.J.

Judgment Two:

O'CONNOR L.J. I have had the advantage of reading the judgments prepared by Sir John Donaldson M.R. and Dillon L.J.I agree with both judgments and for the reasons given would dismiss the appeal.

Judgment Three:

DILLON L.J. The applicant in this case, Mr. Coomasaru, who is a citizen of Sri Lanka, seeks leave to appeal against the refusal of the Divisional Court to grant him leave to apply for an order for judicial review of a decision of the Immigration Appeal Tribunal dated December 2, 1980. That decision of the tribunal dismissed an appeal by the applicant against a determination of an adjudicator, Mr. Healey, who in turn had dismissed an appeal by the applicant against a refusal by the Secretary of State on January 5, 1979, to revoke or vary the conditions subject to which the applicant had been allowed to enter the United Kingdom in June 1978. The applicant first came to the United Kingdom as a visitor in August 1973. He subsequently got the job of sub-warden of the Sri Lanka Students' Welfare Centre, but his right to remain in the United Kingdom continued to be only restricted and temporary. He left the United Kingdom on May 11, 1975, but returned and was re-admitted on the same day. He left again on May 30, 1975, but returned and was re-admitted on June 2, 1975. He then remained in the United Kingdom until April or May 1978, when he went abroad for a short period. He returned on May 20, 1978, and was initially refused re-admission, but that was modified on June 7, 1978, when he was granted permission to enter for 12 months only subject to the further restriction that he could take no employment save as sub-warden of the Sri Lanka Students' Welfare Centre. He now no longer holds that employment. The substance of the applicant's case is that on a true appreciation of what happened when he was re-admitted on May 11 and June 2, 1975, he was granted, although not in express terms, unconditional leave to enter and remain in the United Kingdom. Therefore when he left the United Kingdom in 1978 for the trip from which he returned on May 20, 1978, he was, he says, already "settled in the United Kingdom" within the meaning of section 2 (3) (d) of the Immigration Act 1971 and paragraph 51 of the relevant Statement of Immigration Rules (H.C. 79) and should have been re-admitted unconditionally. He is met in part by a procedural difficulty in that it is said, and in a previous case the Divisional Court has so held, that on a proper construction of the rules a person who objects to the conditions imposed on his entry to the United Kingdom where entry is allowed subject to conditions and is not refused outright, has no right of appeal. As to that, I have had the advantage of reading the judgment of Sir John Donaldson M.R. and I entirely agree with him. On the substance of the applicant's case, the position is very shortly this. When he was re-admitted to the United Kingdom on May 11, 1975, the immigration officer, to whom he presented his passport, stamped the passport with the ordinary entry stamp and wrote below that stamp the words in brackets "employed with Sri Lanka H.C." -- meaning Sri Lanka High Commission. It is common ground that the immigration officer did this because he had made a mistake, in no way induced by the applicant. The immigration officer had been shown a letter from the High Commissioner for Sri Lanka which referred to the applicant's appointment as sub-warden of the Sri Lanka Students' Welfare Centre, and he erroneously supposed that the applicant was entitled, because of that appointment, to diplomatic status, and, as a member of a mission within the meaning of the Diplomatic Privileges Act 1964, was exempt from immigration control: see section 8 (3) of the Immigration Act 1971. When the applicant presented himself for re-admission the next time on June 2, 1975, the immigration officer stamped his passport with the ordinary entry stamp on the same page as and just below the reference to employment with the Sri Lanka High Commission. It is common ground that the immigration officer was simply following what his colleague had done on May 11, and making the same mistake. The applicant submits that he was granted unconditional and unrestricted permission to enter and remain in the United Kingdom in 1975, albeit by a mistake, and he further submits that he can rely on that permission now, although it was granted by mistake, since he did not induce the mistake. He relies on Reg. v. Secretary of State for the Home Department, Ex parte Ram [1979] 1 W.L.R. 148. That case was, if I may say so, plainly correct on its facts, but it is distinguishable from the present case in that the stamp on Mr. Ram's passport would expressly have said "Leave to enter for an indefinite period" whereas the stamps on the applicant's passport are qualified by the words "employed with Sri Lanka High Commission." Those words are in my judgment fatal to the applicant's contentions for two reasons. In the first place, they constitute, as I read them, a qualification of the permission to enter which is evidenced by the entry stamp. The applicant was granted permission to enter and remain in the United Kingdom only for so long as he should be employed with the Sri Lanka High Commission. That was a restriction on the period for which he might remain which prevents him from being settled in the United Kingdom within the meaning of the Act and of H.C. 79. In the second place, the applicant points to the 1975 entries in his passport in order to establish that he has been ordinarily resident, which means lawfully resident, in the United Kingdom. But he has to take the entries as a whole including the qualifying words and he is not entitled to be treated better than the Home Office have, on the face of his passport, treated him. Under section 8 (5) of the Act of 1971 residence as a displomat cannot found a settlement in the United Kingdom, but from his readmissions in 1975 until his departure in 1978 the applicant nly enjoyed residence in the United Kingdom as a diplomat or under colour of his being a diplomat and not independently of any actual or supposed diplomatic status. He cannot now claim to be settled here. In the course of the argument this court granted the applicant leave to appeal. I would now dismiss his appeal.

DISPOSITION:

Appeal dismissed. No order for costs save legal aid taxation. Leave to appeal refused.

SOLICITORS:

Seifert Sedley & Co.; Treasury Solicitor.