Abidi v. Secretary of State for the Home Department

ABIDI v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1994] Imm AR 532

Hearing Date: 28 June 1994

28 June 1994

Index Terms:

Indefinite leave -- applicant on staff of diplomatic mission -- visa exempt stamp -- re-entry stamps recorded diplomatic status -- passport subsequently endorsed with open date-stamp -- applicant no longer employed by diplomatic mission -- whether open date-stamp was a deemed grant of indefinite leave. Diplomatic Privileges Act 1964 sch 1 art 1(g); Iminigration Act 1971 ss 4(1), 8.

Tunisian Association Agreement -- whether the Agreement had any relevance to the application of United Kingdom immigration law. Tunisian Association Agreement art 39.

Held:

Renewed application for leave to move for judicial review, following refusal by Harrison J. The applicant was a citizen of Tunisia who had been employed as a domestic servant in a diplomatic mission. At that time her passport had been endorsed with a visa-exempt stamp and re-entry stamps had recorded her diplomatic status. Subsequently her passport was endorsed with an open date-stamp. She had ceased to be employed by a diplomatic mission. On return to the United Kingdom from a brief visit abroad she was refused leave to enter. It was that refusal she sought to challenge by way of judicial review. Before the court it was argued that by endorsing the passport with an open date-stamp, the applicant had secured indefinite leave to remain in the United Kingdom. Alternatively it was argued that the non-discriminatory clauses of the Tunisian Association Agreement, as it might be construed by the European Court, could give protection to the applicant. Held: 1. Following Bagga it could not be argued that an open date-stamp inserted in a passport indicated that indefinite leave had been granted. 2. The non-discriminatory clause of the Tunisian Association Agreement, relating to working conditions and remuneration, had no relevance to the interpretation of the provisions of the Immigration Act or the immigration rules.

Cases referred to in the Judgment:

Secretary of State for the Home Department v Bagga and ors [1990] Imm AR 413 R v Secretary of State for the Home Department ex parte Najia Abidi (unreported, QBD, 18 February 1994).

Counsel:

I Macdonald QC for the applicant; Miss C Montgomery for the respondent PANEL: Sir Thomas Bingham MR, Kennedy, Millett LJJ

Judgment One:

KENNEDY LJ: This is the renewal of an application for leave to move, leave having been initially refused by Harrison J on 18 February 1994. It is only right to say at the outset that the way in which the matter was put to Harrison J was quite different from the way in which it has been presented to us by Mr Macdonald on behalf of the applicant. The decision which it is sought to challenge is a decision of 26 September 1993, when the applicant was refused leave to enter and a direction was made for her removal to Tunis on 1 October 1993. She is a lady who was born in Tunis on 7 November 1959. She first came to the United Kingdom in 1985 in the capacity of a housekeeper at the Jordanian embassy where she remained until 1989. She then transferred to the Algerian embassy. It is clear that her main employment was in the personal service of the ambassador when she went to the Home Office in July 1990. There was placed upon her passport a visa-exempt stamp which we can see at page 85 of the court bundle. It reads: "The holder is exempt from requiring a visa if returning to the United Kingdom within two years of embarkation." She had, of course, been back to Tunisia on occasions prior to that. It is not altogether easy to read the passport, but on most occasions it seems as though when the passport was stamped on re-entry there was written in the bottom left hand corner the initials "DP" which were suggestive of her being part of the diplomatic staff of the mission at which she was working and understood to be so by the immigration officer who was dealing with her. Mr Macdonald, however, invites us to concentrate on what happened after July 1990. She next returned to the United Kingdom in November 1990 and on that occasion a stamp was impressed on her passport on the same page as the visa- exempt stamp, which did not have any initials on it of the kind to which I have referred. In short, his contention is that on that occasion, having regard to the existence of the visa-exempt stamp, what in reality happened was that she was given indefinite leave to enter. Thereafter she was employed in the service of an Arab speaking family, not in the diplomatic service and eventually she returned to Tunisia in June 1993 when her father died. She then came back to the United Kingdom. It was on her return to the United Kingdom that after some initial doubt she was refused leave to enter and there was thus taken the decision to which I referred a little earlier. It is submitted on behalf of the respondent that in fact the passport, and the stamps on the passport, are simply not capable of bearing the interpretation which Mr Macdonald seeks to place upon them. Our attention has been invited to a decision of this court in the case of Secretary of State for the Home Department v Bagga and ors [1990] Imm AR 413 and in particular to the judgment of Glidewell LJ in that case where he said at page 432: "Section 4(1) of the Immigration Act 1971 provides, so far as is material:

'The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers . . . and . . . those powers shall be exercised by notice in writing given to the person affected . . .'It is clear that such a notice must inform the person affected whether he has been given or refused leave to enter, and if he has been given leave, whether it is leave for an indefinite period or for a limited period, which must then be specified. An open date-stamp gives the person affected none of this information. It is simply a record that the person concerned has been interviewed by an immigration officer, and passed through immigration control, on the stated date. It follows, therefore, that an open date-stamp is not a notice that indefinite leave to enter has been granted."

With that judgment Leggatt LJ specifically agreed. It seems to me that in the light of those observations it is really impossible for Mr Macdonald to say that the open date-stamp impressed in November 1990 can be regarded as the grant of indefinite leave. So far as the position prior to that date is concerned, I, for my part, have no doubt that this lady was properly to be regarded as being within the terms of the Diplomatic Privileges Act 1964, schedule I article 1(g) of which provides as follows: "for the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them.

. . .

(g) the 'members of the service staff' are the members of the staff of the mission in the domestic service of the mission; (h) a 'private servant' is a person who is in the domestic service of a member of the mission and who is not an employee of the sending State." The evidence before us indicates, as it seems to me, quite clearly that this lady was at all times prior to July 1990 an employee of the sending state. She was, therefore, not within (h), but was within (g). She was consequently, for the purposes of that statute, and more particularly for the purposes of section 8 of the Immigration Act 1990, to be regarded as a person to whom the provisions of the Act were not applied because she was a member of a mission within the meaning of the Diplomatic Privileges Act 1964. That accounts for the position as it existed up until the time when the visa-exempt stamp was impressed upon the passport. Consequently it is, in my judgment, right for us to look at that visa-exempt stamp and at the stamp which was impressed immediately afterwards in November 1990 to see if it is possible, as Mr Macdonald contends, for her to arguably contend that that should be read as indefinite leave to remain. Mr Macdonald's alternative submission relates to the Tunisian Association Agreement, article 39 of which reads thus: "The treatment accorded by each Member State to workers of Tunisian nationality employed in its territory shall be free from any discrimination based on nationality, as regards working conditions or remuneration, in relation to its own nationals." That is an agreement which this lady would be entitled to take advantage of, if she could show that she came even arguably within the wording of it. Mr Macdonald frankly concedes that it is difficult for him to say that as a matter of normal construction in English law she should be regarded as coming within the wording of article 39, but he submits that looked at in the way in which the European Court might be disposed to construe that article, it is possible for us to say that she has an arguable case that she comes within it and that it should have been applied in her favour at the port of entry and subsequently. In my judgment that is an unarguable point. That article relates, as it itself indicates, to working conditions and remuneration and it has nothing whatsoever to do with how the immigration provisions set out in the Act and in the immigration rules are properly to be interpreted. Accordingly for my part, I cannot here see any grounds on which it would be appropriate to grant leave. There simply does not seem to me to be an arguable point either in relation to Mr Macdonald's primary submission or in relation to his secondary one. I, therefore, refuse leave.

Judgment Two:

MILLETT LJ: I agree.

Judgment Three:

SIR THOMAS BINGHAM MR: I also agree. I should, for my part, have been hesitant to reach a conclusion on anything other than a fairly full discussion of the subject, but we have in fact heard the application over a period approaching three hours. At the end of that period, having had the opportunity to consider the arguments, I find myself in full agreement with the reasons given by my lord.

DISPOSITION:

Application dismissed

SOLICITORS:

North Kensington Law Centre, London W10; Treasury Solicitor

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