Lakhani v. Immigration Appeal Tribunal

Lakhani v Immigration Appeal Tribunal

Court of Appeal (Civil Division)

[1988] Imm AR 474

Hearing Date: 10 March 1988

10 March 1988

Index Terms:

Leave to enter -- passport stamp on first entry clearly endorsed with reference to s 3(3)(b) of the 1971 Act -- whether these enabling words apply so as to limit any new leave granted (during period of original leave) even if there is no express limitation in that new leave. Immigration Act 1971 s 3, sch 2 paras 2, 6.

Held:

Appeal from Macpherson J. The appellants, a family and travelling presumably on one passport were granted limited leave to enter and the passport stamp included the common form reference to s 3(3)(b) of the 1971 Act. The appellants left the United Kingdom during the currency of that and subsequent periods of limited leave. On each re-entry the passport was stamped with the conventional reference to s 3(3)(b). The last such stamp was smudged and blurred. It was argued, following Ghassamian & Mirza and Tolba that the appellants should be deemed to have been granted indefinite leave pursuant to the second schedule of the 1971 Act. Held: 1. Section 3(3)(b) as an enabling condition applies as an overriding condition whenever leave to enter is obtained after an absence from the United Kingdom within the period limited for the duration of the earlier leave. 2. On every re-entry to the United Kingdom, fresh leave has to be obtained, but that does not preclude the earlier condition under s 3(3)(b) from applying to the new leave.

Cases referred to in the Judgment:

Ghassemian & Mirza v Home Office (unreported, CA, 27 June 1980). R v Secretary of State for the Home Department ex parte Tolba and ors [1988] Imm AR 78

Counsel:

KS Nathan QC and V Kothari for the appellants; P Havers for the respondent PANEL: Dillon, Neill, Stocker LJJ

Judgment One:

DILLON LJ: This is an appeal by Mr Arif Lakhani, his wife and two children, against a decision of Macpherson J, sitting in the Divisional Court of the Queen's Bench Division, given on 17 November 1987 whereby, on a substantive application for relief by way of judicial review in an immigration case, he refused that relief. The point that arises is a very limited one. It concerns the effect of a stamp, or several stamps, in Mr Lakhani's passport against the background of the provisions of the Immigration Act 1971. Mr Nathan, appearing for Mr Lakhani, has sought to develop a further argument that there should be a remission of the case to the Immigration Appeal Tribunal for general reconsideration, with leave to adduce further evidence, but we have ruled that no such general approach is available to him because the leave to apply for judicial review, which was granted by McCowan J and which led to the hearing of the substantive application by Macpherson J, was limited to two grounds only of the application for leave, grounds one and two. Those grounds are as follows: "That the principal Appellant will contend that the learned Adjudicator and the Vice-President of the Immigration Appeal Tribunal erred in law in interpreting Section 3(3)(b) of the Immigration Act 1971 without following the Judicial interpretation of this Section by the Court of Appeal in the case of Ghassamian and Mirza dated 27th June 1980 . . ." That the principal Appellant will further contend that when he left the United Kingdom on 25th August 1979 under Section 3(4) of the Immigration Act 1971, the limited leave granted to him expired. Therefore there was no remaining leave for the Immigration officer to reimpose when he re-entered the country." The more general ground which Mr Nathan has sought to raise related to ground four in the application for leave to move, in which it was sought to be contended that the refusal of leave to appeal by the Vice-President of the Tribunal was unreasonable on the Wednesbury principle and ought to be reversed. Leave to move on that was not granted, so that point is not open in this court. There was no renewal of the application for leave to move made to this court before the hearing of the substantive application by Macpherson J. As I see it, the relevant provisions of the Immigration Act are all in section 3 which, as amended, provides in subsection (1) that: "Except as otherwise provided by or under this Act, where a person is not" (a British citizen) -- (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c) if he is given a limited leave to enter or remain in the United Kingdom, it may be given subject to conditions restricting his employment or occupation in the United Kingdom, or requiring him to register with the police, or both." Mr Lakhani is not a British citizen and therefore he needed leave to enter the United Kingdom. Section 3(3) provides as follows: "In the case of a limited leave to enter or remain in the United Kingdom: (a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply; and (b) "(which is the crux of this case) "the limitation on, and any conditions attached to, a person's leave may be imposed (whether originally or on a variation) so that they will, if not superseded, apply also to any subsequent leave he may obtain after an absence from the United Kingdom within the period limited for the duration of the earlier leave." Then subsection (4) reads: "A person's leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area (whether or not he lands there), unless within the period for which he had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter; but, if he does so return, his previous leave (and any limitation on it or conditions attached to it) shall continue to apply." It is unnecessary to go into all the details of Mr Lakhani's history, but it is necessary to have regard to the various stamps on his passport and the various occasions on which he entered the United Kingdom. These are set out in Macpherson J's judgment, but it is convenient to pick them up again. Firstly, as appears from page 16 of his passport, he was given leave in 1978 to remain in the United Kingdom until 16 September 1979 on condition that he did not engage in or change employment without the consent of the Secretary of State, or engage in any business or profession without the consent of the Secretary of State. At the time that stamp was put into his passport there was also stamped a condition which reflects the wording of section 3(3)(b) of the Act: "This will apply unless superseded, to any subsequent leave the holder may obtain after an absence from the United Kingdom within the period limited as above." During the subsistence of that limited leave Mr Lakhani left the country in January 1979, but re-entered on 11 May 1979. His passport was then stamped with the immigration officer's stamp giving the date, and the words above, "given leave to enter -- Section 3(3)(b)". Having left the country, he also re-entered on 31 August 1979, and there is a stamp on page 23 of the passport, again saying "given leave to enter -- Section 3(3)(b)". His leave to remain was extended in 1980 until 16 September 1980 and there is, on page 24 of the passport, the stamp giving leave to remain until that date, in the same terms as the stamp in relation to the earlier leave to remain until 16 September 1979, and below there is also the same enabling stamp: "This will apply, unless superseded, to any subsequent leave the holder may obtain after an absence from the United Kingdom within the period limited as above." That in turn was extended by leave to remain until 16 September 1981; the stamp is in the same terms with the same clear enabling stamp below, which I need not read again. It appears that on 4 January 1981 after having left the country at some earlier date, Mr Lakhani returned and was given leave to enter under section 3(3)(b) as before. In course of 1981 he left again, returning on 10 August 1981. A stamp was put on his passport giving him leave to enter, but the stamp is slightly smudged. It gives the date; it does not give the immigration officer's number, and although there is a reference to a section, the figures and letter "(3)(b)" are smudged. Accordingly, it is submitted on behalf of Mr Lakhani that the effect of that smudged stamp was to give him indefinite leave to enter. As a matter of history, he applied for an extension from 16 September 1981, and for leave to remain indefinitely on various grounds which we do not have to consider; it is unnecessary to go into the procedural history of those aspects of his application, which failed. But the point that the stamp of 10 August 1981 gave indefinite leave to enter was taken before the adjudicator; it was persisted in throughout and was raised as one of the grounds for which McCowan J gave leave to move for judicial review. Mr Nathan, in the course of his submissions, drew our attention to certain authorities; they do not really solve the problem for him. They deal with parts of the solution, on which the law is fairly clear. Firstly, there is authority which decided that if a smudged stamp is put on a passport on a person's first entry to this country so that leave to enter is granted and it is not apparent that it is subject to any restrictions, then that operates as indefinite leave to enter. That was dealt with in part by Kennedy J in the case of R v Secretary of State ex parte Tolba and ors, decided on 1 October 1987, but as yet unreported. (See now [1988] Imm AR 78.) Secondly, it was decided by Kennedy J that a stamp giving leave to enter under section 3(3)(b) has no effect to limit an otherwise indefinite leave to enter with no conditions if the enabling condition which I have quoted, "This will apply, unless superseded, to any subsequent leave which the holder may obtain after an absence from the United Kingdom within the period limited as above", had not been put into the passport when leave to remain for a limited period had been granted. That, however, also is not this case, because the enabling stamp appears clearly in Mr Lakhani's passport. Thirdly, we were referred to an unreported decision of this court in Ghassemian and Mirza v the Home Office, dated 27 June 1980, in which the leading judgment was given by Bridge LJ. That decided that where a person had leave to enter this country for a limited period, and then left and returned during that period, in view of subsection (4) of section 3 he needed a fresh leave to enter because the original leave to enter had lapsed when he left the United Kingdom; it could not be said that the original leave to enter for a limited period franked unlimited re-entry during that period. Persons would have leave to enter repeatedly during the period of their original permit in special cases covered by the Act or the rules, such as in the particular cases covered by section 8 of the Act, or in the instances covered by the Immigration (Exemptions and Control) Order 1972, to which Mr Nathan referred us; but in other cases they would have to obtain leave to enter. The crucial question in this case, which is not covered by the authorities to which we have been referred, is whether the enabling words of the section 3(3)(b) condition apply so as to limit any new leave to enter which is granted to the immigrant, even though there is no express limitation in that new permission. The case is argued, particularly in relation to the re-entry for which permission was given on 10 August 1981, where the reference in the stamp to section 3(3)(b) is smudged, but as it seems to me the logic of the argument would equally apply in relation to the earlier re-entries -- for instance, to that, on the same page of the passport of 31 August 1979, where the reference to section 3(3)(b) is clear, because if Mr Nathan's argument is right, the previous permission to enter for a limited period, and all the conditions attached to it, including the enabling condition, would have lapsed on the departure of Mr Lakhani from the United Kingdom. Mr Nathan submits that section 3(3)(b) of the Act would still have some force left in it, in that it would apply to people returning who do not require to obtain leave to re-enter; that is to say, the people within section 8 or the Immigration (Exemptions and Control) Order that I have mentioned, which is particularly concerned with consular and diplomatic officials. That is, however, a very scant scope for section 3(3)(b), and in my judgment the section 3(3)(b) enabling condition applies as an overriding condition whenever leave to enter is obtained after an absence from the United Kingdom within the period limited for the duration of the earlier leave. That is the actual wording of section 3(3)(b). The immigrant has indeed to obtain a subsequent leave to enter, but if he does obtain the subsequent leave to enter then, by virtue of section 3(3)(b) the original conditions and limitations, including the time limitation, apply. When he came back on 10 August he was given leave to enter; he thus obtained a subsequent leave after an absence from the United Kingdom within the period limited by his earlier leave to remain, which was valid until 16 September 1981; the limitation accordingly continued to apply to his new leave to re-enter, and it is wrong to say that he was granted indefinite leave to remain. That was the view taken by Macpherson J; I entirely agree with him and accordingly, for my part I would dismiss this appeal.

Judgment Two:

NEILL LJ: I agree that, for the reasons given by my Lord, this appeal must be dismissed.

Judgment Three:

STOCKER LJ: I also agree.

DISPOSITION:

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

SOLICITORS:

Suchak & Co, Wembley; Treasury Solicitor.
 

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