R v. Immigration Appeal Tribunal, Ex parte Joyles

R v Immigration Appeal Tribunal, ex parte Joyles

QUEEN'S BENCH DIVISION

[1972] 3 All ER 213, [1972] 1 WLR 1390, 136 JP 713

Hearing Date: 17 MAY 1972

17 MAY 1972

Index Terms:

Commonwealth immigrant - Appeal - Appeal against conditions of admission - Determination of appeal - Decision in accordance with 'immigration rules applicable' - Immigration rules - Validity - Rules 'being rules published and laid before Parliament' - Command paper setting out rules presented to Parliament - Whether rules 'laid before Parliament' - Immigration Appeals Act 1969, ss 8 (1), 24 (2).

Held:

The applicant, a West Indian from Barbados, came to England in 1967 in possession of an entry certificate to enable him to marry his fiancée who was resident in England. His admission permit was for three months on condition that he did not engage in employment etc. The proposed marriage with his fiancée fell through when he found that she was pregnant by another man. Thereupon he took employment in England. In 1968 he met another woman who was resident in England and whom he married in March 1969. In February 1970 the Home Office requested the applicant to leave the United Kingdom as being in breach of his conditions of entry. An adjudicator allowed the applicant's appeal to have his conditions of admission revoked, under s 8 (1) a of the Immigration Appeals Act 1969, thereby rendering the applicant's continued presence in the country lawful. On 28th October 1971 the Immigration Appeal Tribunal allowed an appeal by the Home Secretary pursuant to s 7 (1) of the 1969 Act, against the adjudicator's decision. The tribunal held that the Home Secretary's decision to refuse to revoke the applicant's conditions of admission was 'in accordance with the law' and with 'the immigration rules applicable to the case', as required by s 8 (1) of the 1969 Act, on the basis that the 'rules applicable' were the Immigration Rules (1970), set out in a command paper b which had been presented to Parliament in February 1970. By para 24 c those rules provided that a man who had been admitted to the United Kingdom in a temporary capacity and who married a United Kingdom resident, could only be permitted to settle if hardship 'would be caused if the woman had to live outside the United Kingdom to be with her husband after marriage'. The applicant moved for an order of certiorari to quash the tribunal's decision, contending (i) that, although the 1970 rules had been published and presented to Parliament, they had not been 'laid before' Parliament as required by s 24 (2) d of the 1969 Act; (ii) alternatively, that since the rules had not come into effect until February 1971 they could not affect the applicant's marriage which had been contracted in 1969, and (iii) in any event the applicant had not been admitted 'as a visitor or student, or in some other temporary capacity' within the 1970 rules, since the words 'some other temporary capacity' were to be construed ejusdem generis with 'visitor or student'. Evidence was given that the command paper b setting out the 1970 rules had been presented to both Houses of Parliament, in accordance with the procedure prescribed by standing orders, in February 1970. a Section 8, so far as material, is set out at p 215 g to j, post b Cmnd 4295 c Paragraph 24 is set out at p 216 f, post d Section 24 (2), so far as material, is set out at p 216 h, post Held - The application would be dismissed for the following reasons -- (i) according to parliamentary practice there was no distinction between presenting papers to Parliament and laying them before Parliament; accordingly the evidence made it clear that the 1970 rules had been 'laid before' Parliament, within the meaning of s 24 (2) of the 1969 Act, in February 1970 and accordingly were valid rules (see p 217 g and j and p 218 g, post); (ii) since the 1970 rules were in existence when the matter came before the Immigration Appeal Tribunal, the tribunal was not only entitled, but bound, to consider the question of hardship as required by those rules, without thereby giving them retrospective operation (see p 218 d and g, post). (iii) since the applicant was in the country illegally and in breach of the conditions of his admission he was there in a 'temporary capacity' within the meaning of para 24 of the 1970 rules (see p 218 f and g, post).

Notes:

For appeals by immigrants against conditions of admission to United Kingdom, see Supplement to 5 Halsbury's Laws (3rd Edn) para 1523, and for the determination of appeals, see ibid para 1529. For the Immigration Appeals Act 1969, ss 8, 24, see 40 Halsbury's Statutes (3rd Edn) 264, 274.

Introduction:

Motion for certiorari. This was an application by way of motion by Enos Fitzgerald Joyles for an order of certiorari to remove into the High Court and quash a determination of the Immigration Appeal Tribunal dated 28th October 1971 whereby the tribunal allowed the appeal of the Secretary of State for the Home Department against the determination of an adjudicator that the Secretary of State ought to have exercised his discretion so as to revoke the applicant's conditions of admission to the United Kingdom. The grounds on which relief was sought were the following: (a) that the Immigration Appeal Tribunal wrongly considered that the sole question before it (apart from hardship) was whether or not the decision of the Secretary of State was in accordance with the law and with any material immigration rules; (b) that the Immigration Appeal Tribunal failed to appreciate that the decision of the Secretary of State had been an exercise of discretion, and consequently failed to consider (pursuant to s 8 of the Immigration Appeals Act 1969) whether that discretion should have been exercised differently; (c) that the Immigration Appeal Tribunal wrongly treated as binding on it or as relevant to the sole issue (apart from hardship) which it purported to decide the provisions of s 16 (3) of the Commonwealth Immigrants Act 1962 and of para 46 of Command Paper 4298 n1 and of para 24 of Command Paper 4295 n2, when in fact s 16 (3) and para 46 bound immigration officers and not the Secretary of State and para 24 was of no binding force whatsoever, and furthermore neither of the two paragraphs related to persons in the applicant's situation. The matter first came before the court on 15th May when it was adjourned until 17th May. The facts are set out in the judgment of Wien J. n1 Entitled 'Commonwealth Immigrants Acts 1962 and 1968: Instructions to Immigration Officers', and presented to Parliament by the Secretary of State for the Home Department by command of Her Majesty, February 1970 n2 Entitled 'Commonwealth Citizens: Control after Entry: Immigration Rules', and presented to Parliament by the Secretary of State for the Home Department by command of Her Majesty, February 1970

Counsel:

Stephen Sedley for the applicant. Gordon Slynn for the respondent tribunal. PANEL: LORD WIDGERY CJ, SHAW AND WIEN JJ

Judgment One:

WIEN J delivered the first judgment at the invitation of Lord Widgery CJ. Counsel moves on behalf of the applicant, Enos Joyles, for an order of certiorari to bring up and quash a determination made on 28th October 1971 by the Immigration Appeal Tribunal, whereby the tribunal allowed the appeal by the Secretary of State for the Home Department against the determination of the adjudicator on 19th July 1971, who had allowed an appeal by the applicant to have his conditions of admission revoked so as to permit him to take up permanent residence in this country. This history of the matter so far as it is relevant is as follows. The applicant is a native of Barbados. He arrived in this country on 22nd October 1967 in possession of an entry certificate granted in Barbados to enable him to come here to marry his fiancée who was resident in the United Kingdom. He was admitted here for a period of three months on condition that he did not engage in employment or in any business, profession or occupation for reward. When he arrived he fully intended to marry his fiancée but he soon discovered that she was expecting a child by another man. Not unnaturally the proposed marriage fell through and did not take place. In breach of one of the conditions on which entry had been permitted he took employment and, in the following year, 1968, met another woman whom he eventually married on 29th March 1969. There are two young children, I think aged five and one, in the family. The applicant has been illegally in this country and in breach of the conditions of his admission since 22nd January 1968. As a matter of simple history, and nothing more, his marriage took place two months after it was announced in the House of Commons on 30th January 1969 by the then Secretary of State that --

'In future the admission of husbands and fiancés from the Commonwealth for settlement will be restricted to cases presenting special features, and it will be a requirement that an entry certificate must have been obtained.Consistently with this, men who have been admitted as visitors, students or for other temporary purposes, will not be permitted to settle here following marriage,

save in exceptional circumstances. Account will be taken in individual cases of any special circumstances, whether of a family nature or otherwise, which make exclusion from the United Kingdom undesirable [I leave out the next few words which relate to persons seeking admission; he continued:] I have accordingly issued revised instructions to immigration officers which come into effect immediately.'

If the Secretary of State did issue instructions immediately, we have not seen them, and I do not think that they would concern this court because under s 16 (3) of the Commonwealth Immigrants Act 1962 it would have been the duty of immigration officers to act in accordance with such instructions as may be given to them by the Secretary of State. When the matter came before the adjudicator in July 1971, he bore in mind the provisions of s 8 of the Immigration Appeals Act 1969. Section 8 (1) povides:

'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; or (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; and (b) in any other case, shall dismiss the appeal.' I read sub-s (2) of that section in view of the argument which has been advanced by counsel for the applicant regarding the meaning of 'immigration rules':

'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 adjudicator took the view that in all the circumstances of the case, the discretion of the Secretary of State should have been exercised differently from the way in which it had been exercised and he therefore allowed the applicant's appeal to have his conditions of admission revoked. The effect of the adjudicator's determination was to render the applicant's continued presence in this country legal, with no prohibition against working here. The Secretary of State appealed to the Immigration Appeal Tribunal pursuant to s 7 (1) of the 1969 Act which permits any party to an appeal to an adjudicator to appeal to the tribunal if he is dissatisfied with the adjudicator's determination. On an appeal to the tribunal has the powers set out in s 8 (4) of the 1969 Act. Those powers are as follows:

'On an appeal under this Part of this Act to the Tribunal from the determination of an adjudicator, the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator.'

The tribunal heard evidence and allowed the Secretary of State's appeal on the grounds that (1) the refusal of the Secretary of State to revoke the applicant's conditions of admission was in accordance with the law and the immigration rules applicable to the case, and (2) the applicant had not established that degree of hardship contemplated in para 24 of the command paper n3. n3 Cmnd 4295 Since this particular document was the subject of much argument before this court and by counsel for the applicant, it is pertinent to read its full title: 'Commonwealth Citizens: Control after Entry -- Immigration Rules'. I pause there to say that until this document was published, all prior documents were instructions to immigration officers. Then it goes on 'Presented to Parliament by the Secretary of State for the Home Department by Command of Her Majesty', the date given being February 1970. Paragraph 24 of the Immigration Rules (1970) n3 reads as follows: n3 Cmnd 4295

'If a man who was admitted as a visitor or student, or in some other temporary capacity, marries a woman who is resident in the United Kingdom, he is not on that account to be granted an extension of stay or any other variation of conditions to enable him to settle here unless refusal would be undesirable because of the degree of hardship which, in the particular circumstances of the case, would be caused if the woman had to live outside the United Kingdom in order to be with her husband after marriage. But a woman admitted in a temporary capacity who marries a resident should have her conditions of admission revoked on application.'

So far as hardship is concerned, the tribunal took into account that both the applicant and his wife would be returning to the country of which they were natives and where they were born and brought up. Counsel for the applicant argues that the tribunal was in error in applying the Immigration Rules of 1970. He says that the words 'immigration rules' are expressly defined by s 24 of the 1969 Act, as indeed they are; by s 24 (2) of the Act --

'... "immigration rules" means rules made by the Secretary of State for the administration of (a) control of entry into the United Kingdom of persons to whom the Act of 1962 applies [that is the principal Act] and (b) the control of such persons after entry, being rules which have been published [and I emphasise the next two words] and laid before Parliament...'

Counsel for the applicant's submission is that the rules were presented to Parliament; they have no doubt been published but they were not laid before Parliament, and therefore, he says, they are not rules within the meaning of the 1969 Act. If counsel for the applicant is right, then many hardship cases decided since 1970 would have been quite erroneously decided for hardship could not be taken into account at all. Counsel for the respondent was informed only last Friday of the point that was going to be taken and was taken on Monday, and counsel came here armed with an affidavit that was not very satisfactory. The matter was adjourned and today has been dealt with in a way that in my judgment is conclusive. Counsel for the applicant argued that when one looked at Erskine May's Parliamentary Practice n4, one could conclude that there was a difference between the presentation of papers to Parliament and the laying before Parliament of certain papers. Erskine May says n4: n4 18th Edn (1971), p 251

'The presentation of papers to the House of Lords is effected by their delivery to the Office of the Clerk of the Parliaments and to the House of Commons by their delivery to the Votes and Proceedings Office.' There is a footnote (t) which reads:

'Strictly speaking papers are presented to each House by Command, and laid before each House by Act. This distinction is observed in the Minutes of Proceedings of the House of Lords but not in the Votes and Proceedings of the House of Commons and for convenience has been disregarded in this account.' So that at an early stage during the course of counsel for the applicant's argument one began to doubt very much whether there is any difference at all between presenting papers to Parliament, in particular presenting a command paper, and laying before Parliament.

Today counsel for the respondent submitted to the court certain documents, without any objection -- indeed, by consent -- the effect of which to my mind disposed of the matter beyond all doubt. I take the House of Commons first. There is a letter from Mr Hawtrey, Clerk of the Journals, which says that he encloses a copy of certain papers that were presented by the Home Secretary and ordered to lie on the table. Those papers include -- I would still use for the moment the phrase 'so-called' -- rules governing the control of Commonwealth citizens, i e the command paper n5. The letter states: n5 Cmnd 4295

'These papers were, in fact, delivered to the Votes and Proceedings Office in accordance with Standing Order No. 119 (Presentation of Command Papers) whose text is as follows: -- "If, during the existence of a Parliament, papers are commanded by Her Majesty to be presented to this House at any time, the delivery of such papers to the Votes and Proceedings Office shall be deemed to be for all purposes the presentation of them to this House". When papers are presented in accordance with the Standing Order mentioned above, the practice of the House is to order them to lie upon the Table, and the entry on page 317 of the Votes and Proceedings proves that the House so ordered in the case of the two Command Papers mentioned. [Then the final sentence which is extremely important:] The terms "presented to the House" and "laid before the House" are synonymous in Parliamentary practice.'

There is also a letter from the Clerk of the Journals to the House of Lords who in that document states that two Command Papers, including the so-called rules n5 -- n5 Cmnd 4295

'were presented and laid before the House in accordance with the provisions of Standing Order 65 on 24th February, 1970.'

In my judgment, it is perfectly clear on what we have now been told that the Immigration Rules (1970) n5 were presented to Parliament and laid before Parliament on 24th February 1970 and that they are valid rules. I think that really effectively disposes of counsel for the applicant's main submission. n5 Cmnd 4295 He then went on to submit that if the Immigration Rules (1970) are valid, then they were not retrospective in effect. What he meant by that I think, so far as I could understand his argument, was this: they came into existence on 24th February 1970; they could not therefore affect a marriage which had been contracted in 1969. A somewhat similar argument had been advanced before the tribunal, but it met with little favour in front of the tribunal. As part of the written decision by the tribunal it is stated: 'At the date of his [i e the applicant's] admission to the United Kingdom Command Paper 3064 n6 was in force'. Then there is set out the provisions of para 32 of that paper, and the decision goes on: n6 Entitled 'Commonwealth Immigrants Act 1962: Instructions to Immigration Officers' (August 1966)

'The paragraph clearly refers to marriage to a particular person already in the United Kingdom, and we do not agree with the view of the Adjudicator that, because the proposed marriage to Miss Clarke did not take place, the more appropriate course was to consider the marriage which the Respondent actually contracted in March 1969 on the basis of the rules of admission applicable in 1967 rather than on the rules in operation at the time of the marriage.' In my judgment, these rules were in existence in 1971 when the matter came before the Immigration Appeal Tribunal. The tribunal was not only entitled but was obliged to consider para 24 and was obliged to consider the question of hardship. It did so, and in my judgment it did so correctly, without attempting to do anything retrospectively.

There was a final string to counsel for the applicant's bow and it was this. He said that if the command paper n7, i e the 1970 rules, applies, then the applicant was not a person who had come here 'in some other temporary capacity', words which he submits ought to be construed ejusdem generis with the words 'visitor or student' because he had an intention to settle here permanently. It may be that the applicant did have that intention at some time or another, but it matters not. Counsel for the applicant's argument is that a person who comes here in some other temporary capacity must be a person such as a trainee or a seasonal worker. I disagree. I think that the applicant who was here illegally and in breach of his conditions was a person who was here in a temporary capacity. He fits four-square into the words 'some other temporary capacity'. He was a person who in that capacity married a woman who was resident in the United Kingdom. For the reasons I have given, I think there is in the result nothing to show that the decision of the Immigration Appeal Tribunal was wrong in any respect. I would refuse the order asked for. n7 Cmnd 4295

Judgment Two:

SHAW J. I agree.

Judgment Three:

LORD WIDGERY CJ. I agree also.

DISPOSITION:

Application refused.

SOLICITORS:

Lawrence A Grant (for the applicant); Treasury Solicitor (for the respondent tribunal).