Mesirionye v. Immigration Appeal Tribunal

MESIRIONYE v IMMIGRATION APPEAL TRIBUNAL

Court of Appeal (Civil Division)

[1993] Imm AR 119

Hearing Date: 16 October 1992

16 October 1992

Index Terms:

Deportation -- overstayer -- appellant in United Kingdomn for ten years -- tenth year spent in United Kingdom while awaiting outcome of appeal against refusal of variation of leave -- whether that year was a period of "lawful" residence -- whether appellant had ten years' continual lawful residence -- whether appellant could expect to benefit from publicly announced ministerial policy relating to those with ten years' lawful residence. Immigration Act 1971 ss 3(5)(a), 14(1): HC 251 para 164.

Held:

The appellant was a citizen of Nigeria. The Secretary of State had concluded she was an overstayer. He had initiated deportation proceedings pursuant to s 3(5)(a) of the 1971 Act. An appeal was dismissed by an adjudicator. The Tribunal refused leave to appeal. An application for judicial review was dismissed by Simon Brown J. The appellant appealed. She had first arrived in the United Kingdom in September 1980. She was admitted as a student. She secured a series of variations of leave. On 30 August 1989 however she was refused a further variation of leave. She lodged an appeal against that refusal. Her leave, by virtue of the Variation of Leave Order, following the refusal of variation of leave, was extended to 27 September 1989. She remained thereafter in the United Kingdom awaiting the outcome of her appeal. On 20 November 1990 she applied for indefinite leave on the basis of ten years' lawful residence: she withdrew her appeal against the refusal of 30 August 1989, on 27 November 1990. The application for indefinite leave was refused. The Secretary of State decided to deport her. Her representative before the adjudicator conceded that she did not have ten years' lawful residence in the United Kingdom. Before the learned judge at first instance, and before the Court of Appeal, counsel argued that that concession was wrongly made. The time spent in the United Kingdom, from 27 September 1989 until she withdrew her appeal in November 1990 was, in accordance with section 14 of the 1971 Act, time spent lawfully in the United Kingdom. Counsel also attacked the adjudicator's approach to the evidence and the weight he attached to it. Held 1. Section 14 of the 1971 Act, while it gave protection against deportation to an appellant who had an appeal pending, did not make that waiting time "lawful residence". 2. It followed that the appellant did not have ten years' lawful residence in the United Kingdom and could not claim the benefit of the relevant ministerial statement. 3. The court rejected counsel's criticism of the adjudicator's determination, endorsing the view of the Tribunal that it was "careful and well-structured."

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Egejuro Mesirionye (Before Simon Brown J, counsel had relied for her contention on Idrish [1985] Imm AR 155: the learned judge stated "it is . . . no authority for treating the period following the expiry of leave before the determination or abandonment of an appeal as a period of lawful residence.") (unreported, QBD, 20 July 1992).

Counsel:

Miss F Webber for the appellant; M Shaw for the respondent PANEL: Purchas, Nolan, Scott LJJ

Judgment One:

PURCHAS LJ: This is an application by Egejuro Mesirionye for leave to move for judicial review of a decision of the Immigration Appeal Tribunal by which that Tribunal refused leave to appeal from an adjudication made by Mr Guest, an adjudicator, dated 27 February 1992. Very shortly, the circumstances are as follows. The applicant was born on 4 June 1957. She arrived in the United Kingdom on 22 September 1980 with a student's visa, and was granted leave to enter for 12 months. Thereafter the history was one of renewed applications and further grants of leave to stay. The purpose, which was perfectly genuine, was to study in this country. Her studies took various forms and, from time to time, she returned to her home in Nigeria for holidays. There came a time when her final application for further leave to remain was refused on 30 August 1989. She appealed against that refusal on 13 September 1989. Her right to remain in this country in the circumstances continued until 27 September 1989. On 20 November 1990 she applied for indefinite leave to remain on the basis that she had been continually and lawfully resident in this country for ten years. On 27 November 1990 she withdrew her appeal against the refusal of her final application on 30 August 1989. The first, and short, point that is made on this renewed application is that in determining the question of the residence, for the purposes before the adjudicator, it was wrongly conceded on her part, so it is submitted, that there was not ten years' lawful residence, because, in the period of her appeal against the refusal of her last application, the provisions of section 14(1) Immigration Act 1971 did not render her continued stay in this country lawful. The concession was that the effect of that section was to grant her protection from deportation from this country pending her appeal but did not alter her status. That concession, it is said, was wrongly made and the first point that we have to consider is whether that concession was or was not wrongly made. I can deal with that point quite shortly. Section 14 reads: "Subject to the provisions of this Part of this Act, 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; and a variation shall not take effect so long as an appeal is pending under this subsection against the variation, nor shall an appellant be required to leave the United Kingdom by reason of the expiration of his leave so long as his appeal is pending under this subsection against a refusal to enlarge or remove the limit on the duration of the leave". It is said that the effect of that section is to grant a status of legality to the continued presence of the applicant in the United Kingdom. I am unable to accept that submission. In my judgment, and there is previous authority for this view in this court, that section is not effective to alter the status of the applicant. It merely grants a protection against action (to which otherwise the applicant would be vulnerable) by the Secretary of State to effect his or her removal. Then it is said that the application of the effect of that section by the Secretary of State is contrary to the concessions which he has made. It is further submitted that, in those concessions and letters it is not the Secretary of State's function to interpret the meaning or place any other meaning upon the effect of the section. We have been shown one of the concessions. It takes the form of a written answer in Parliament by the then Secretary of State, Mr Renton, which I need not read (The terms of the policy have varied over the years, but the present policy is conveniently set out in R v Secretary of State for the Home Department ex parte Samuel Ogunbodede). Furthermore, we have been shown letters written by officials of the Department, one at least by the Secretary of State, and another by Mr Stephenson of the B2 Policy Division. It is not necessary for me to detail those documents. Having studied them and considered the skilful submissions of counsel for the applicant, I am not persuaded that there has been, on the part of the Secretary of State, any movement away from the interpretation to be put upon the words of the statute as a result of these concessions or any of them to which our attention has been drawn today. Therefore, on the first of the submissions made by Miss Webber I am not persuaded that leave to move should be granted. But her submissions did not end there. She submitted that this court should grant leave so that another court could investigate what essentially were findings of fact reached by the adjudicator on his adjudication which the Immigration Appeal Tribunal ignored or wrongly considered when refusing leave to appeal. I can set the basis of the submission very shortly. The evidence before the adjudicator consisted, in part of its content, of testimonials to the good character and scholastic record of the applicant, to the fact that she was presently working in an old people's home and, on the other hand, a long history of repeated attempts at various courses as a student. It is to be remembered that her period of being in this country as a student ran from September 1980 to September 1989 but indeed has gone on, because she still is pursuing studies of various kinds. The adjudicator, in what Miss Webber described as a critical and severe analysis of the history, came to conclusions which Miss Webber submitted were not justified and were unfair to the applicant. If the assessment of the evidence by an adjudicator can be shown to be biased or misconceived or totally unjustified, then, of course, an appellate tribunal or this court is under a duty to interfere. But only if those positions are reached should the appellate tribunal or court interfere. The adjudication has been described (and I respectfully agree) by the Tribunal as careful and well-structured. It covered the matters in considerable detail. The adjudicator weighed matters of public policy against the hardship to the appellant if she were required to return to Nigeria. He considered her own attitude towards events in Nigeria and her contact with her country of origin, and came to a balanced conclusion, having considered all the relevant circumstances, including all of the matters referred to in paragraph 16 of the statement of changes in immigration rules 251. I find that hardship to the appellant is not sufficiently a strong reason in this case to outweigh the need in the public interest to ensure that the immigration laws are enforced. The grounds submitted in support of the application for leave to appeal before the Tribunal were: (1) That the adjudicator erred in concluding that the appellant's compassionate circumstances are "not of great strength". That is merely attacking his assessment of the quality of the case. (2) The adjudicator's findings regarding the appellant's personal history, including character and conduct was very much against the weight of the evidence. Furthermore the adjudicator was wrong in law to state that these factors "increased the weight to be given to the public interest element". (3) The adjudicator's questioning of the appellant was both unfair and oppressive. The adjudicator attached considerable undue weight to whether the appellant had in 1986 read Nigerian newspapers or magazines or West African literature. It is not entirely clear how this was relevant to the issues, but in any event it is submitted the adjudicator attached far too much weight to this aspect of the matter in forming a most adverse opinion of the appellant. (4) The adjudicator states "the fact is I believe that she wanted to stay in this country as a student and probably to obtain permanent residency". It is submitted that the adjudicator was no longer reviewing the Secretary of State's decision of intention to deport but was placing himself in the shoes of the Secretary of State with respect to his earlier decisions to grant the appellant further leave. In so doing the adjudicator speculated unnecessarily and it is contended that in any event the adjudicator's assertion is wrong and entirely against the weight of the evidence. Complaint is then made of a further assertion of the adjudicator that: "The appellant has for some time been trying to manipulate the authorities and use the rules in order to remain here for an undisclosed purpose". That was attacked as being not wholly supported by the evidence and not even pursued by the Secretary of State. The final allegation made before the Tribunal was that the adjudicator demonstrated substantial prejudice. All those matters were fairly before the Immigration Appeal Tribunal. Their conclusion, having considered the matter, was: "The adjudicator heard oral evidence from the applicant whom he did not consider a credible witness. The Tribunal should not and will not lightly interfere with the adjudicator's assessment of a witness he has seen and heard. The Tribunal has read all the papers on file. It considers that the conclusions of the adjudicator are fully supported by the evidence, bearing in mind his assessment of the witness he heard and his assessment of the oral evidence. There is no misdirection in law. The adjudicator in a full and carefully structured determination has considered fully all the relevant issues". Leave on those grounds was refused. There is now, of course, an asserted misdirection of law which was not put before the Immigration Appeal Tribunal. Had this court been in favour of the submission on the law made by Miss Webber, as was indicated in argument, clearly leave would issue. But, for the reasons that I have given earlier in this judgment, I am not in agreement with that submission. The view is that that concession was rightly made by those acting for the applicant before the adjudicator and that there is not in this case established a period of ten years' lawful residence in this country. For those reasons, I would dismiss this application for leave to move for judicial review.

Judgment Two:

NOLAN LJ: I agree.

Judgment Three:

SCOTT LJ: I too agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Gherson & Co, London EC4; Treasury Solicitor

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