R v. Immigration Appeal Tribunal, Ex parte Martin

R v IMMIGRATION APPEAL TRIBUNAL, Ex parte MARTIN TH/440/70

Queen's Bench Division

[1972] Imm AR 275

Hearing Date: 19 July 1972

19 July 1972

Index Terms:

Business on own account -- Insufficiency of profit to maintain applicant -- Seamstress -- Whether private income from father abroad may be taken into consideration -- "all relevant factors" -- Immigration Appeals Act 1969, s 8(1)(a)(i) -- Cmnd 4295, rr 4, 10, 22.

Discretion -- Adjudicator's discretion -- Combining selected factors from separate rules designed for separate categories of person -- Appellant not able fully to satisfy specific rule -- "all relevant factors" -- Limitation on adjudicator's discretion when appellant not within specific rule -- Matter for Secretary of State's discretion outside the rules -- Immigration Appeals Act 1969, s 8(1)(a) & (2) -- Cmnd 4295, rr 4, 10, 22.

Held:

Miss M (a Commonwealth citizen) entered the United kingdom as a visitor in March 1968 and was granted extensions of stay as a working holiday-maker up till a period of 3 years from her admission. She appealed against the refusal of any further extension, and it was contended before an adjudicator and the Immigration Appeal Tribunal that she had sufficient means to maintain herself without recourse to employment for which a voucher was required. Her sources of support were a combination of her earnings as a seamstress working alone on her own account and a private income received from her father in Australia. Neither source was sufficient by itself. In its final form the argument advanced on her behalf was that she qualified for an extension as a person who had "set up in business" under r 22 n1 of Cmnd 4295 and that it was a relevant factor under that rule and under r 4 n2 of that Command Paper which should be taken into account that she also had a private income, albeit not large enough to make her "a person of independent means" under r 10 n3 The Tribunal by a majority reversing the adjudicator, held n4 that the Secretary of State had properly refused to grant Miss M an extension of stay. n1 Rule 22 is set out on page 277, post. n2 Rule 4 is set out on page 278, post. n3 Rule 10 is set out on page 277, post. n4 The determination of the Tribunal is reported in [1972] Imm A R 146. On Miss M's application to the Divisional Court of the Queen's Bench for an order of certiorari to quash the Tribunal's determination, Held: The application would be refused because -- (i) The immigration rules, Cmnd 4295 governing the revocation or variation of conditions of admission, provided a number of different categories, and on a true construction of the rules an applicant seeking to show that he was entitled to an extension under those rules must bring himself clearly within one or other of those categories. (ii) the applicant in this case could not bring herself within r 22, and it was not possible to supplement the argument on r 22 by reference to r 10 or to her private income. Per LORD WIDGERY, C.J.: An applicant in the situation of this lady who wishes to base her case on a number of different factors drawn from or relevant to a number of different categories must put her case as a special one to the Secretary of State and his discretion is still the final answer. Per MELFORD STEVENSON, J.: Between r 10 and r 22 of Cmnd 4295 there is as a matter of construction a fence which is unclimbable.

Counsel:

R. A. Gatehouse, Q.C., and Christopher Clarke for the applicant. Gordon Slynn for the respondent. PANEL: Lord Widgery, C.J., Melford Stevenson and Milmo, JJ. Judgment By-1: LORD WIDGERY, C.J

Judgment One:

LORD WIDGERY, C.J.: In these proceedings counsel moves on behalf of one Jane Birkett Sandland Martin for an order of certiorari to bring up to this Court and quash a determination made by the Immigration Appeal Tribunal on 20 October 1971. The circumstances of the case are these: the applicant is a lady who is a citizen of Australia; she came to the United Kingdom on 14 March 1968 as a visitor for a period of six months. That simply means that she was given permission to enter the country, but her permission was subject to a condition that she should remain only six months. In fact, for reasons which do not concern the Court this morning, she was granted a number of extensions of her permit, to use a popular word, and this was duly extended to 14 September 1970. She then asked for a further extension, applying to the Home Office in the usual way for this purpose, but she was refused a further extension except for a limited period expiring on 14 March 1971. It was that final refusal to extend her permission beyond 14 March 1971 which caused her to appeal, as she was entitled to appeal, to an adjudicator under s 3 of the Immigration Appeals Act 1969. The matter duly came on for hearing before the adjudicator, and the issues argued there, and indeed later before the Tribunal and indeed before this Court, became fairly clear and straightforward. Having come here on what is called a working holiday, she had set up a business of her own as a seamstress; she worked entirely alone in this business employing no staff and having no partner. She made chair covers, curtains, upholstery and things of that kind, and at the time when the matter came before the adjudicator her income from this source from her private business was of the order of @ 12 a week. She gave evidence, which was supported by others, to the effect that her business might well improve beyond that turnover, and a figure of some @ 17 to @ 18 a week was mentioned as a perfectly reasonable prospective return which might be achieved in a relatively short time. But her income was not confined to what she earned in the course of that business, because her father in Australia had put certain dividends at her disposal, and eventually had executed a deed of covenant whereby he guaranteed to her that if the dividend income did not amount to @ 504 a year he would make up the income to that sum; so that to put the matter quite briefly, her sinews of living were her earnings as a seamstress, perhaps @ 900 a year either actual or in prospect, and some @ 500 from her father under the deed of covenant, making, as counsel submits to us, about @ 1400 a year. The relevance of those figures is that under the immigration rules, Command Paper 4295, certain categories of visitor are set out in respect of whom extended permits, even indefinite permits, are appropriately granted. It is quite clear, as Mr Gatehouse submits, that one of the threads which runs right though these immigration rules is that people who come here from the Commonwealth and who cannot claim the right of admission on any other ground, must in the main be able to show that they can survive without taking employment, the protection of employment and the protection of those who claim employment by voucher being obviously one of the underlying considerations of the rules. There are two rules which have relevance to this case; the first is r 10, which says:

"Where a visitor applies for permission to settle here as a person of independent means, evidence will be sought that he can support himself and his dependants indefinitely without taking employment. If the evidence is satisfactory, his conditions of admission may be revoked."

That is the rule so far as it relates to so-called persons of independent means, and it has been referred to in argument throughout this case because of this lady's source of income from her father, but in the end the case is not put on r 10 as far as the argument in this Court is concerned, and I pass on to the paragraph which is the basis of this application, which is r 22. This reads:

"Commonwealth citizens admitted as visitors may apply for the consent of the Secretary of State to their establishing themselves here for the purpose of setting up in business, whether on their own account or as partners in a new or existing business. Any such applications will be considered on merits. Permission will depend on a number of factors, including evidence that the applicant will be devoting assets of his own to the business, proportional to his interest in it, that he will be able to bear his share of any liabilities the business may incur, and that his share of its profits will be sufficient to support him and any dependants. The applicant's part in the business must not amount to disguised employment, and it must be clear that he will not have to supplement his business activities by employment for which a voucher is ordinarily necessary."

Then there is a reference to producing accounts where the applicatnt proposes to join an existing business. Before considering the way in which this matter was argued before the adjudicator and then the Immigration Appeal Tribunal, it is I think pertinent to remind oneself that under the Immigration Appeals Act 1969 an adjudicator duly seised of an appeal is instructed thus in s 8:

"1. Subject to sections 2(2) and 5(2) of this Act, an adjudicator who hears an appeal under this Part of this Act -- (a) shall allow the appeal if he considers -- (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case."

Accordingly, if on looking at the immigration rules it is apparent on their proper construction that the applicant under those rules was entitled to have his entry permit amended in his favour, then the adjudicator must follow the rules and produce the results which they determine. On the other hand, if the issue was not one specifically catered for in the rules but was a matter of discretion in the Secretary of State, the adjudicator cannot affect that exercise of discretion except to the limited degree specified in s 8 of the Act of 1969 n5. So one comes back to the question whether the rules to which I have referred on their true construction create a situation in which this applicant was entitled to have her permit extended. n5 Subsections (1)(a)(ii) and (2) of s 8 provide as follows:

"8. -- Subject to sections 2(2) and 5(2) of this Act [raising certain matters involving deportation] an adjudicator who hears an appeal under this part of this Act -- (a) shall allow the appeal if he considers --... (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently;... (2) For the purposes of paragraph (a) of the foregoing subsection the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of paragraph (a)(ii) of that subsection no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so."

The argument put forward on her behalf by counsel, an argument which appealed to the adjudicator, and indeed to the minority of the Tribunal, is that when one looks at r 22 and considers whether she is a person who has established a business of the kind referred to in that paragraph, one must bear in mind that she has in the background this unearned income provided by her father. He says it is true that para 22 makes no reference to any unearned income which may be available to supplement the applicant's resources but, he says, when the governing factor is whether or not she will have to take employment to live, the common sense of the matter must be that any other income which she may have must be a relevant consideration, and he says if the facts are, as they are here, that she has such an income and if, bearing that in mind, one can say with confidence she has resources to live here without taking employment for which a voucher is required, that must be relevant and a factor for consideration. He reinforces that argument by referring to r 4 of Cmnd 4295, which is in the following terms:

"The succeeding paragraphs set out the main categories of Commonwealth citizens who may be subject to conditions of admission and who may seek revocation or variation of them, and the principles to be followed in dealing with their applications. In deciding whether to grant an application for revocation or variation of conditions, or to initiate a variation of conditions, account will be taken of all relevant factors, including whether the Commonwealth citizen has observed the conditions on which he was admitted to the United Kingdom."

So, says counsel for the applicant, having regard to the terms of r 22, one of the "relevant factors" must have been that she had this additional private income. If that submission is right, then the application in my judgment is a valid one, because what is perfectly clear is that the Tribunal decided that reference to the unearned income was not a relevant factor in deciding whether the case fell within r 22. So one comes down in the end to this question: Was the applicant's unearned income a relevant factor or, as counsel for the respondent contends, on a true construction of these Rules, are the categories specified within them separate and independent in themselves, and such that one cannt, as it were, pick certain factors from one category and add them to certain factors from another category and thus produce a type of immigrant who is entitled to an extension of the permit of the kind applied for here. I have come to the conclusion that counsel for the respondent is right on this. The line which has to be drawn between the matters which remain in the discretion of the Secretary of State and the matters which are governed by the law and cognizable in this Court is one which is not always easy to draw, and one of which we must always be conscious. I am satisfied that the immigration rules provide, as is argued by the respondent, a number of different categories, and an applicant who seeks to show that he or she is entitled to an extension must bring himself or herself clearly within one or other of those categories. This lady does not bring herself within r 22, if one ignores her private income, because for reasons given in the Tribunal's decision which are not seriously challenged, her business by itself would not be sufficient. Since in my judgment it is not possible to supplement the argument on r 22 by reference to r 10 or to her private income, it seems to me that that is an end of the matter. To put it another way, an applicant in the situation of this lady who wishes to base her case on a number of different factors drawn from or relevant to a number of different categories must put her case as a special one to the Secretary of State and his discretion is still the final answer. It is only if the case is brought within one of the categories and thus authorized by the rules in the sense which I have given effect to them that an appeal to the adjudicator and thence finally to this Court is in order. For these reasons I would refuse the application. Judgment By-2: MELFORD STEVENSON, J.

Judgment Two:

MELFORD STEVENSON, J.: I agree with reluctance but I am quite satisfied by the argument of counsel for the respondent that between r 10 and r 22 of the immigration rules there is as a matter of construction a fence which is unclimbable and I therefore must accept that this application must be dismissed. At the same time I hope it is proper to say that in my view if ever there was a case which deserved a sympathetic consideration under the general discretion exercisable by the Secretary of State, this is that case. Judgment By-3: MILMO, J.

Judgment Three:

MILMO, J.: I agree with the judgment which has been delivered by the Lord Chief Justice not with any degree of doubt but with some reluctance. I also associate myself with the remarks that have fallen from Melford Stevenson, J. as to the manner in which the Home Secretary will approach the ultimate decision as to whether or not this applicant should be allowed to remain in this country conditionally or otherwise.

DISPOSITION:

Application refused.

SOLICITORS:

Blacket Gill & Langhams (for the applicant); The Treasury Solicitor (for the respondent).

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