Agyen-Frempong v. Immigration Appeal Tribunal

Agyen-Frempong v Immigration Appeal Tribunal

Court of Appeal (Civil Division)

[1988] Imm AR 262

Hearing Date: 15 January 1988

15 January 1988

Index Terms:

Commonwealth citizens -- whether if ordinarily resident in the United Kingdom on 1 January 1973 they have a right to be re-admitted without condition no matter how long they have been absent from the United Kingdom -- whether paragraph 56 of HC 169 is in conflict with the principles laid down in s 1(5) of the 1971 Act. Commonwealth Immigrants Act 1962 s 2(2); Immigration Act 1971 s 1(5): HC 169, paras 56, 57.

Immigration Appeal Tribunal -- whether when preparing to decide a case on a rule not considered by the adjudicator it is obliged to hear oral evidence or, alternatively to remit the case to an adjudicator. Immigration Act 1971 s 20(1).

Held:

Appeal from Farquharson J. Between the hearings at first instance and that of the present appeal, the Court of Appeal judgment in ex parte Haque, Rahman and Ruhul had largely destroyed the validity of the original grounds of appeal. New arguments were advanced before the Court of Appeal. The appellant was a citizen of Ghana who had been granted indefinite leave to remain in the United Kingdom in 1971. He was in Ghana 1972-74, returned to the United Kingdom for one week in 1974 and was then away from the United Kingdom from April 1974 to September 1983. In September 1983 he was admitted as a visitor but subsequently applied for indefinite leave to remain. That was refused. An adjudicator allowed his appeal, but before the Tribunal the Secretary of State's appeal was allowed. The Tribunal held that the appellant was not entitled to indefinite leave to remain in the United Kingdom: he had been settled in the United Kingdom on 1 January 1973 but was not so settled in September 1983: he was outwith the provisions of paragraph 56 of HC 169 and the discretion in paragraph 57 should not be exercised in his favour. That was a point which the adjudicator had not considered, and the Tribunal heard no oral evidence. Before the Court of Appeal it was contended that to come within the first sentence in paragraph 56 of HC 169, a Commonwealth citizen need not show he was ordinarily resident in the United Kingdom on a particular date: an earlier grant of indefinite leave would make him settled for the purposes of the rules. Paragraph 56 had to be interpreted so as to coincide with the protection accorded by s 1(5) of the 1971 Act. It was also argued that the Tribunal erred in law in deciding the case on the provision of paragraph 57 of HC 169 without hearing oral evidence. Held: 1. On the clear words of s 33(2)(a) of the 1971 Act, a person was not settled in the United Kingdom unless he were ordinarily resident here. 2. Paragraph 56 of HC 169 had not cut down any rights enshrined in pre-1971 rules. 3. There was adequate factual information before the Tribunal upon which it could consider the provisions of paragraph 57; there had been no obligation on it, in the events which had happened either to hear oral evidence or remit the case to an adjudicator. The Court expressed concern that following the Court of Appeal's judgment in ex parte Haque and ors it did not appear that the Legal Aid authorities had been advised that the case was unarguable on the grounds on which legal aid had been granted.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Haque, Ruhul, Rahman [1986] Imm AR 27. Secretary of State v Agyen-Frempong [1986] Imm AR 108. R v Immigration Appeal Tribunal ex parte Agyen-Frempong (unreported, QBD 6 July 1987). Immigration Appeal Tribunal v Haque, Rahman, Ruhul [1987] Imm AR 587: [1987] 1 WLR 1538.

Counsel:

E Cotran for the appellant; R Ter Haar for the respondent PANEL: Glidewell, Stocker, Taylor LJJ

Judgment One:

GLIDEWELL LJ: This appellant, Mr Brefo Agyen-Frempong, is a citizen of Ghana, which means that for the purposes of British nationality law he is a Commonwealth citizen. He first came to the United Kingdom as a student, aged 27, on 13 September 1966. He was studying accountancy. He remained here at that stage for something over five years. On 9 November 1971 he was granted indefinite leave to remain in the United Kingdom. "Indefinite leave to remain" means what it says; it does not mean leave to come and go. On 21 November 1971, only a few days after that leave was granted, he was sent abroad by his employers, who were then a Ghanian company called the Black Star Shipping Line. His employment with them as an accountant necessarily involved him travelling out of the United Kingdom from time to time. On that occasion he went to West Germany, but only for a short time, and returned after some weeks. Then, on 10 February 1972, his employers sent him back to Ghana. He said, and it was accepted, that he expected only to be there for a relatively short time. Before he went (indeed before 1971 I think) he had married, and he and his wife had purchased a flat in Glasgow. His wife remained in Glasgow when he went to Ghana. As a result of a coup d'etat which took place in that country whilst he was there, it became difficult, if not impossible, for him to leave; and in the event he did not return to the United Kingdom again until 30 March 1974. It seems that really he only came back then in order to pack up the house and take his wife back to Ghana. She had been undergoing medical treatment. On that occasion the appellant remained only for a week, and early in April 1974 he and his wife returned to Ghana. He did not return to this country again for nine and a half years, coming back on 13 September 1983. Thus he was out of the United Kingdom for eleven and a half years in total, except for the one week at the end of March and the beginning of April 1974. While he was in Ghana he changed his employers and he joined the Ghana Livestock Company. When he arrived in the United Kingdom on 13 September 1983 he applied for entry as a visitor. He says that he showed the immigration officer his passport containing the original stamp showing unlimited leave to remain in the United Kingdom, but his application, as I say, was to enter as a visitor. He was granted leave to enter as a visitor on condition that he left after some four months. On 7 December 1983 solicitors on his behalf wrote to the Home Office applying either for indefinite leave to remain in this country or, alternatively for an extension of his stay. Again the letter made no reference to the fact that he had previously had the unlimited leave to remain. The reason given in the letter why he wished to stay longer was that the political situation in Ghana was not very stable. That application was refused on 10 February 1984. By this time the point had been taken that he had previously had unlimited leave to remain in the United Kingdom. The reason given on the notice of refusal for the refusal of indefinite leave to remain is expressed in this not very grammatical way: "An application has been made on your behalf for indefinite leave to remain in the United Kingdom as a returning resident, but the Secretary of State is not satisfied that you were settled in the United Kingdom and you have not been away from the United Kingdom for longer than two years." What that really means is that the Secretary of State is not satisfied that he had not been away from the United Kingdom for longer than two years. Against that refusal the appellant appealed to an adjudicator. When the matter finally reached the adjudicator, which was after an adjournment and further consideration by the Home Office, to which I do not need to give more attention, the Home office case fell under three heads. Firstly, the point was made that there is no provision which entitled them to consider whether a person who had been granted leave to enter as a visitor should be granted leave to remain as a returning resident. That point seems to have disappeared somewhere along the line. Secondly, the Home Office said, even if Mr Agyen-Frempong could properly be considered as a returning resident, the relevant immigration rule was to be found in paragraph 56 of House of Commons Paper 169. The appellant's circumstances did not come within the provisions of that rule, and in the circumstances the Home Office were not prepared to exercise discretion in his favour under the following paragraph, paragraph 57. Thirdly, the Home Secretary took the view that he was not satisfied that this appellant could be regarded as ordinarily resident in the United Kingdom on 1 January 1973, which is the date on which the Immigration Act 1971 came into force. Thus section 1(5) of that Act did not apply to him. On that last point the adjudicator found as a fact that the appellant was ordinarily resident in the United Kingdom on 1 January 1973. That, if not expressly accepted, at any rate was accepted for the purposes of argument by the Tribunal to which there was then a further appeal and has not since been further challenged. Having found as a fact that the appellant was so ordinarily resident, the adjudicator said: "Therefore I consider that the effect of the provisions of the 1971 Act are sufficient to permit him to remain in this country, and I allow the appeal." That cryptic sentence does not set out the reasons supporting the conclusion. It is clear, however, that the adjudicator was there referring to the effect of section 1(5) of the 1971 Act. The Home Secretary appealed to the Appeal Tribunal against that decision. Upon the point on which the adjudicator had found in favour of the appellant, the Appeal Tribunal concluded: "In the Tribunal's view the adjudicator erred in concluding that if the respondent was settled in this country on 1 January 1973 he was thereby entitled to indefinite leave following his entry in 1983." The Appeal Tribunal then set out what was then understood to be the effect of section 1(5) in relation to this, following in particular a decision of my Lord, Taylor J (as he then was) in Ruhul which he had decided on 21 November 1985. For other purposes I shall have to refer to that case briefly, but there was an appeal against that decision. The decision of this court on the appeal is reported at [1987] 1 WLR 1538; effectively the Court of Appeal took a different view from that of Taylor J as to the effect of section 1(5), which was more adverse to the appellant than the original decision and which undermines part of the reasoning of the Appeal Tribunal, and indeed of Farquharson J in relation to this particular aspect of the case. Having thus found against the decision of the adjudicator in relation to section 1(5), the Appeal Tribunal then considered a number of other arguments which were put before them. Most of those arguments have not been put before us. Either they did not feature in the ground of appeal, or they have been expressly abandoned by Mr Cotran who appears for the appellant before us. However, the last matter which the Tribunal did consider is a matter upon which we have to rule, and that is the effect of paragraph 57 of House of Commons Paper 169. The last paragraph of the Tribunal's decision is: "To sum up therefore the only immigration rule on which the respondent can possibly base his claim to indefinite leave is HC 169 paragraph 57. We agree with the Secretary of State that the respondent's case is not made under that paragraph." I should have said that, since the adjudicator had found in favour of the appellant on the section 1(5) point, he had not thought it necessary to go on and consider the effect of paragraph 57 of HC 169, and thus nothing is to be found in his decision about that matter. The Appeal Tribunal therefore allowed the appeal against the decision of the adjudicator. The appellant applied for an order of certiorari to quash the decision of the Appeal Tribunal. That application was heard by Farquharson J on 6 July 1987. He refused that application and the appellant now appeals to this court. The grounds of appeal, it is right to say, were settled before the decision in Ruhul in the Court of Appeal was reported. For that reason, or perhaps for that reason, the grounds of appeal no longer find favour with Mr Cotran and he has expressly discarded all of the grounds of appeal which it is fair to say he did not himself draft. He commenced by making application to us to substitute for them two further grounds, and we gave leave for him to do so. Mr Ter Haar, for the Appeal Tribunal, did not find himself embarrassed by this. He did not ask for any additional time to consider them, and indeed it is apparent that he did not need it. The two new grounds relate to arguments which have never previously been raised in this case at all. They touch upon matters which have previously been raised, but the precise arguments addressed to us were never addressed to the adjudiciator, the Appeal Tribunal or Farquharson J. For that reason, save for the effect of the Court of Appeal decision in Ruhul on his judgment, Farquharson J's judgment, as such, remains unaffected by the submissions made by Mr Cotran. Before I go to Mr Cotran's submissions I must say something about the statutory provisions. As I have said, the appellant is a Commonwealth citizen, and he is therefore subject to immigration control under section 1(2) and section 3 of the Immigration Act 1971. Section 1(4) provides: "The rules laid down by the Secretary of State 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 not having the right of abode shall include provisions for admitting" persons who are within a number of defined categories. Subsection (5) reads: "The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed." The phrase there used, "Commonwealth citizens settled in the United Kingdom" is defined in what is now section 33(2)(a) of the Act, which reads: "Subject to section 8(5) above, references to a person being settled in the United Kingdom are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain." The provisions of section 8(5) are irrelevant for the purposes of this appeal. In September 1983 the immigration rules in force were those to which I have already referred -- those contained in House of Commons Paper 169. Paragraph 56 of those rules reads: "A Commonwealth citizen who satisfies the immigration officer that he was settled in the United Kingdom at the coming into force of the Act, and that he has been settled here at any time during the 2 years preceding his return, is to be admitted for settlement. Any other passenger returning to the United Kingdom from overseas (except one who received assistance from public funds towards the cost of leaving this country) is to be admitted for settlement on satisfying the immigration officer that he had indefinite leave to enter or remain in the United Kingdom when he left and that he has not been away for longer than 2 years." Paragraph 57 provides: "A passenger who has been away from the United Kingdom too long to benefit from the preceding paragraph may nevertheless be admitted if, for example, he has lived here for most of his life." The first submission made by Mr Cotran is to the following effect. In the light of the law before the 1971 Act and in the light of section 1(5) of the 1971 Act, rule 56 of HC 169 must be read in such a way that Commonwealth citizens who were settled in the United Kingdom on 1 January 1973 and who leave the country thereafter have a right to return to the United Kingdom and be admitted without conditions no matter how long they have been out of the United Kingdom. If I understand it correctly, the crux of that submission is that, looking at the definition of "settlement" in section 33(2)(a), which I have already read, the question whether a person is settled in the United Kingdom now depends, not on the factual basis of ordinary residence in the United Kingdom but solely upon the question whether indefinite leave to remain has been granted at some time in the past. In other words, Mr Cotran submits, that, once a person who does not have the right of abode here is granted indefinite leave to remain, he is put in precisely the same position as a person who does have the right of abode here. A person who has the right of abode here is entitled, not merely to live here for as long as he or she wishes, but to go out of and come back into the country without let or hindrance whenever he wishes, subject of course to the normal constraints of the law. Mr Cotran's submission is that a person who has indefinite leave to remain here is for the rest of his natural life in precisely the same position. The fact that the result of that argument would be startling does not mean necessarily that it is not deserving of consideration. But in my view it fails on the clear words of section 33(2)(a). References to a person being settled in the United Kingdom are references to his being ordinarily resident there without being subject under the immigration rules to any restriction on the period for which he may remain. It is clear that, if a person is to be settled here, he or she must be ordinarily resident here, and it is only if he is ordinarily resident here that one goes on to consider whether there is any restriction on the period for which he or she may remain. If he is not ordinarily resident here, then by definition he is not settled here. The second part of Mr Cotran's submission is to the effect that paragraph 56, if interpreted in the sense in which the Home Secretary has interpreted it, renders a Commonwealth citizen not having the right of abode here who was settled here on 1 January 1973 less free to come into and go out of the United Kingdom than he would have been before the 1971 Act came into froce, when the relevant provisions were those contained in the Commonwealth Immigrants Act 1962. Mr Ter Haar submits, with a good deal of force, that what Mr Cotran is really doing is submitting that paragraph 56 is ultra vires section 1(5), and two days ago, when we had an initial hearing of this case, we declined to allow him to amend his notice of appeal so as to make any such submission. Mr Cotran, however, eschews any intention of challenging the vires of paragraph 56. He says that you must interpret paragraph 56 as being intra vires, and it only can be intra vires if it coincides with section 1(5). Is a person who was settled here on 1 January 1973 less free to come and go if he is in the position of this appellant than he would have been under the 1962 Act by virtue of paragraph 56? This appellant has been out of the United Kingdom for nine and a half years, he has no home here and his wife is not here. It was decided as a fact that he was not ordinarily resident in the United Kingdom on the date when he presented himself for entry -- 13 September 1983. Clearly he therefore does not fall within the apparent meaning of the wording of paragraph 56 of HC 169, but then he would not have come within section 2(2) of the 1962 Act either. The relevant provisions of that section read: "The power to refuse admission or admit subject to conditions under this section shall not be exercised, except as provided by subsection (5), in the case of any person who satisfies an immigration officer that he or she -- (a) is ordinarily resident in the United Kingdom or was so resident at any time within the past two years". If as a fact, as the Tribunal has found, this appellant was not ordinarily resident here on 13 September 1983, then, even if section 2(2) of the 1962 Act had been in force, he would not have satisfied that provision. So he is just as subject to immigration control now as he was then, and the provisions of paragraph 56 have the same effect upon him as did section 2(2) of the 1962 Act. To take another example, suppose that instead of leaving the country for nine and a half years he had remained here continuously with his indefinite leave to remain until, let us say, early 1982; but then gone out of the United Kingdom and had returned in September 1983 less than two years after he left. Under section 2(2) of the 1962 Act he would have been able to satisfy the immigration officer that he was ordinarily resident here at some time within the past two years, and so he would have been admitted when he came back. Under HC 169, paragraph 56 he would be able to satisfy the immigration officer that he was settled in the United Kingdom on 1 January 1973 and that he had been settled here at some time within the two years preceding, because he was still here, on my second example, within that period of two years. So he would have been just as free to come in and he would have been just as entitled under those hypothetical circumstances to be admitted as he would have been under the 1962 Act. So in my view (and indeed in this respect I coincide with the view expressed by Farquharson J in another decision of his) the provisions of HC 169, paragraph 56 are no more restrictive of a right of a person in the circumstances of this appellant to enter into and to leave the United Kingdom than were the provisions of the 1962 Act. Accordingly, I would reject this argument also. Paragraph 56 of HC 169 deals with two categories of persons. It deals with those who were settled here at the time of the coming into force of the Act, and it deals with those who were not settled here at the time of the coming into force of the Act but have subsequently obtained indefinite leave to enter or remain in the United Kingdom. If a person falls into either of those two categories and leaves the United Kingdom and stays away for less than two years, then he will under the rule be entitled to be readmitted and will normally be given a further indefinite leave to remain. The appellant clearly does not satisfy the clear wording of paragraph 56 of HC 169. As I have said, that wording does not in any sense offend against section 1(5) of the Act, and thus it is not necessary to read it in some other sense as Mr Cotran suggested. That argument therefore fails. The second submission I can deal with more shortly. It is to the following effect: that paragraph 57 of HC 169, which gives a discretionary power to admit to the United Kingdom persons who had been absent for more than two years, was incorrectly dealt with by the Tribunal, in the sense that the adjudicator had not dealt with this paragraph and had made no findings of fact upon it. Accordingly, it is submitted that the Tribunal should have taken one of two courses: either it should have insisted on having oral evidence about the questions relevant under paragraph 57; or, alternatively, it should have remitted the matter to the adjudicator for him to find appropriate facts. The Tribunal's powers on an appeal to it from the adjudicator are, as Mr Ter Haar helpfully reminded us, to be found in section 20 of the 1971 Act, which provides in subsection (1): "Subject to any requirement of rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator." the material before the Appeal Tribunal in this case included all the facts found by the adjudicator about the appellant's movements (that is to say, the length of time he had spent in this country, when he had left, the places to which he had gone and when he had re-entered.) There was recorded in the adjudicator's decision his evidence that he intended to make his home here and not in Ghana. There was recorded and accepted the fact that his wife had lived here until he came for her in 1974. There was recorded the fact that at that stage they still had a home in Glasgow, although subsequently it has been, we are told, demolished, apparently for some public purpose. All those facts, which were before the adjudicator and found by him, were equally before the Tribunal, and the Tribunal based its decision in relation to paragraph 57 upon those facts. To them must be added the fact that this appellant, when he came back on 13 September 1983, sought admission as a visitor and was granted admission as a visitor. In my view the Tribunal had before it all the evidence which was material for it to consider in relation to paragraph 57. If the appellant had gone into the witness box before the Tribunal and had reiterated that he did intend to make his home here, he would have been no better off than he was with the Tribunal accepting that he had expressed that view to the adjudicator. In my view no more was needed to be put before the Tribunal to enable it to reach a conclusion as to whether the Home Secretary was right to exercise his discretion not to allow the appellant to enter under rule 57. It must be rememberd that it was the Home Secretary's discretion in this sense that was at issue, and the Tribunal would of course have had to have found some compelling reason to dissent from that exercise of discretion if it was going to allow the appeal. But it had no difficulty in concluding that there was on the material clearly no reason within paragraph 57 why the Home Secretary should have admitted this appellant. Accordingly this argument also fails in my view, and for those reasons I would dismiss this appeal.

Judgment Two:

STOCKER LJ: I agree. I add only one observation in deference to an argument of Mr Cotran. If I correctly understood that argument, he sought to say that the provisons of paragraph 56 of HC 169 could be supported by contrasting the wording of that paragraph with the wording of section 2(2) of the Act of 1962. Paragraph 56 reads: "A Commonwealth citizen who satisfies the immigration officer that he was settled in the United Kingdom at the coming into force of the Act, and that he has been settled here at any time during the 2 years preceding his return, is to be admitted". Whereas the wording of subsection (2) of section 2 of the 1962 Act uses the word "or": "The power to refuse admission or admit subject to conditions . . . shall not be exercised . . . in the case of any peson who satisfies an immigration officer that he or she -- (a) is ordinarily resident in the United Kingdom or was so resident at any time within the past two years". If I understood his argument correctly, Mr Cotran sought to say that the consequence of that substitution of the word "and" for the word "or" was that an entrant was less free to come and go from the United Kingdom under paragraph 56 than he would have been under section 2(2) of the 1962 Act. It seems to me that the line of argument was misconceived, since the consequence in my view on the facts of this case is precisely the same in the case of this applicant whether the word is "or" or "and". For these reasons and for those given by my Lord, I also agree that this appeal should be dismissed.

Judgment Three:

TAYLOR LJ: I agree with both of the judgments which have been delivered.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Singh & Choudhury; Treasury Solicitor.